State of Minnesota v. Alton Dominique Finch

STATE OF MINNESOTA
IN SUPREME COURT
A14-0203
Court of Appeals Lillehaug, J.
State of Minnesota,
Respondent,
vs. Filed: July 8, 2015
Office of Appellate Courts
Alton Dominique Finch,
Appellant.
_________________________________
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
_________________________________
SYLLABUS
1. A denial of a request to disqualify a district court judge for cause pursuant
to Minn. R. Crim. P. 26.03, subd. 14(3), need not be challenged by petition for a writ of
prohibition in order to preserve the issue for appeal. Further, a party may move to
disqualify a district court judge without waiving the party’s right to have the chief judge
of the district hear and determine the request to disqualify.
2. The district court erred when it denied appellant’s motion to refer the
request to disqualify to the chief judge of the district for hearing and determination.
1
Because a “reasonable examiner” would have questioned the district court’s impartiality,
the error was not harmless.
Reversed and remanded.
OPINION
LILLEHAUG, Justice
During a probation revocation proceeding, the probationer moved the district court
judge for disqualification or to direct the chief judge of the district to determine whether
the district court judge was disqualified, due to what the probationer alleged was a
“reasonable question” about judicial impartiality. The court denied the motion in its
entirety and revoked probation. The probationer appealed, arguing that Minn. R. Crim.
P. 26.03, subd. 14(3), requires the chief judge of the district court to hear requests to
disqualify. The court of appeals affirmed the district court’s decision, holding that
probationer’s arguments failed both procedurally and on the merits.
We hold that the probationer’s appeal is not procedurally flawed, that the district
court erred when it declined to refer the request to disqualify to the chief judge of the
district, and that the error was not harmless. Thus, we reverse the decision of the court of
appeals, vacate the probation revocation order, and remand to the district court for further
proceedings before a different judge.
I.
On December 24, 2012, Alton Finch shot at two victims as part of a drive-by
shooting. He was charged with second-degree assault under Minn. Stat. § 609.222, subd.
1 (2014), in addition to two other charges that were later dropped. Shortly after the
2
proceedings commenced, the case was reassigned from the original judge. Finch made a
motion to remove the new judge from the case, treated as both peremptorily and for
cause. The judge denied the motion, as did the chief judge of the district. That denial is
not before us.
Following a stipulated facts bench trial, Finch was convicted of second-degree
assault. Finch was placed on supervised probation for three years, with a three-year
prison sentence stayed. Finch was also sentenced to one year at the county workhouse.1
Shortly thereafter, Finch left the workhouse for a furlough and did not return. The
district court issued an arrest warrant, and Finch turned himself in.
Prior to the scheduled probation revocation hearing, Finch moved to disqualify the
district court judge “based on a reasonable question of [judicial] impartiality.” In the
alternative, Finch requested an order “directing the Chief Judge of the District Court to
make a determination as to whether this [judge] should hear” the case, or an order
“staying the proceedings so as to allow an independent tribunal to determine whether this
[judge] has violated the Code of Judicial Ethics by not recusing . . . .” The district court
rejected Finch’s motions “in their entirety as they lack merit,” without issuing a written
order. Rather than referring Finch’s motion to the chief judge, the court immediately
commenced the probation revocation hearing. Following the hearing, which began that
day and resumed five days later, the court revoked Finch’s probation and executed his
sentence.
1
The conviction was affirmed. State v. Finch, No. A13-1903, 2014 WL 4671102(Minn. App. Sept. 22, 2014), rev. denied (Minn. filed Nov. 25, 2014).
3
Finch appealed the revocation of his probation. He argued that the district court
erred when it declined to refer the disqualification motion to the chief judge of the
district. State v. Finch, A14-0203, 2014 WL 4494409 *1 (Minn. App. Sept. 15, 2014).
The court of appeals affirmed.2 Id. The court held that Finch should have sought a writ
of prohibition, which it said is the “proper remedy for challenging the denial of a motion
to remove a judge for cause.” Id. at *2. Even with that “technical error,” the court of
appeals cited two additional reasons to reject Finch’s appeal. First, the court of appeals
held that Finch waived his right to a hearing before the chief judge when he presented his
motion “to the district court judge he sought to remove.” Id. Second, the court of
appeals held that Finch’s motion failed on its merits, as Finch did not identify any
evidence that the judge was biased against him. Id. at *2-3.
We granted Finch’s petition for review, and consider in turn each of the issues
decided by the court of appeals.
II.
A.
The court of appeals first held that the only “proper remedy for challenging the
denial of a motion to remove a judge for cause” is a writ of prohibition, which Finch did
not seek. Finch, A14-0203, 2014 WL 4494409 at *2; (citing State v. Laughlin, 508
N.W.2d 545, 547 (Minn. App. 1993) (“Prohibition is the appropriate remedy to pursue
2
Finch also unsuccessfully challenged the revocation of his probation based on the
Austin factors, Finch, A14-0203, 2014 WL 4494409 at *3-4, which is not an issue before
us.
4
when a motion or notice to remove for cause has been denied.”)). “A motion to remove a
judge is procedural and therefore governed by the Rules of Criminal Procedure.” In re
Jacobs, 802 N.W.2d 748, 751 (Minn. 2011). The interpretation of those rules “is a
question of law subject to de novo review.” Ford v. State, 690 N.W.2d 706, 712 (Minn.
2005).
Pursuant to the Minnesota Rules of Criminal Procedure, parties have a peremptory
right to remove a judge assigned to preside at a trial or hearing. See Minn. R. Crim. P.
26.03, subd. 14. Notice of removal must be given within seven days after the party
receives notice of the name of the presiding judge, and the judge must not have already
presided at the trial, omnibus hearing, or evidentiary hearing. Minn. R. Crim. P. 26.03,
subd. 14(4). So long as these procedural requirements are met, the judge is removed.
We have held that the denial of a peremptory removal must be challenged via a
petition for a writ of prohibition. State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984).
A writ of prohibition “is an extraordinary writ issued out of [an appellate court] for the
purpose of keeping inferior courts or tribunals or other officials invested with judicial or
quasi-judicial authority from going beyond their jurisdiction.” State ex rel. United Elec.,
Radio & Mach. Workers of Am. v. Enersen, 230 Minn. 427, 438, 42 N.W.2d 25, 31
(1950). “[A] defendant’s failure to seek a writ of prohibition constitutes waiver of further
appellate review ‘when the issue involves the right of peremptory removal.’ ” Hooper v.
State, 838 N.W.2d 775, 789 n.4 (Minn. 2013) (quoting State v. Dahlin, 753 N.W.2d 300,
304-05 (Minn. 2008)).
5
We require that peremptory removal denials be challenged via the writ in order to
“avoid a waste of time, resources, and effort by the parties and the court system.”
Dahlin, 753 N.W.2d at 304; see also State v. Azure, 621 N.W.2d 721, 725 n.3 (Minn.
2001). It makes sense that a denial of peremptory removal should be subject to
immediate review; otherwise, the district court could be “clearly exceeding its legitimate
power and authority” solely because of a technical error. State ex rel. Jonason v. Crosby,
92 Minn. 176, 178, 99 N.W. 636, 636 (1904); see also McClelland v. Pierce, 376 N.W.2d
217, 219 (Minn. 1985) (“[I]f a trial judge refuses to honor an affidavit of prejudice
properly filed pursuant to [the civil removal rule], any further exercise of judicial power
is unauthorized and a writ of prohibition is the appropriate form of relief.”).
In addition to peremptory removals, a party may seek to disqualify a judge at any
point in the proceeding for cause:
A judge must not preside at a trial or other proceeding if disqualified under
the Code of Judicial Conduct. A request to disqualify a judge for cause
must be heard and determined by the chief judge of the district or by the
assistant chief judge if the chief judge is the subject of the request.
Minn. R. Crim. P. 26.03, subd. 14(3). Unlike the court of appeals, we have never held
that the denial of a motion to remove a judge for cause must be challenged via a petition
for a writ of prohibition. See Hooper, 838 N.W.2d at 789 n.4. To the contrary, we have
considered whether a judge was disqualified—the standard to remove a judge for cause
under Minn. R. Crim. P. 26.03, subd. 14(3)—when the issue was not even raised in the
6
district court.3 See State v. Schlienz, 774 N.W.2d 361, 365-69 (Minn. 2009); State v.
Dorsey, 701 N.W.2d 238, 245-49 (Minn. 2005).
There are important distinctions between a peremptory removal and a removal for
cause. On petition for a writ, an appellate court may determine that a district court
erroneously denied a request for peremptory removal by examining three simple criteria:
whether the notice to remove was properly filed, timely served, and effective. See Minn.
R. Crim. P. 26.03, subd. 14(4); Dahlin, 753 N.W.2d at 305-06. If those criteria are met,
then a district court judge exceeds “legitimate power and authority” by remaining on the
case, Crosby, 92 Minn. at 178, 99 N.W. at 636, and the issue is capable of immediate
resolution. By contrast, a request to disqualify for cause might well involve a nuanced
scrutiny of the record, not the summary examination required to decide a request for
peremptory removal.
Accordingly, we conclude that a petition for a writ of prohibition is not required
to obtain appellate review of a request to disqualify for cause under Minn. R. Crim. P.
26.03, subd. 14(3). The court of appeals precedent to the contrary is overruled.
B.
The court of appeals also held that Finch waived his right to have the chief judge
hear his removal motion. Finch, A14-0203, 2014 WL 4494409 at *1-2. “Waiver is the
voluntary relinquishment of a known right.” State v. Jones, 772 N.W.2d 496, 504 (Minn.
3
To be sure, we encourage litigants to use the procedure outlined in Minn. R. Crim.
P. 26.03, subd. 14(3), and make motions to remove for cause at the district court.
Otherwise, an appeal will be decided based on the plain-error standard. See State v.
Schlienz, 774 N.W.2d 361, 365-69 (Minn. 2009).
7
2009). Noting that subdivision 14(3) contains a “clear directive” (the motion to
disqualify a judge for cause “must be heard and determined by the chief judge”), the
court of appeals held that Finch waived his right to have the motion heard by the chief
judge by “presenting his motion to the district court judge he sought to remove.” Finch,
A14-0203, 2014 WL 4494409 at *2.
The rule, clearly and unambiguously, directs the chief judge to hear and determine
a “request to disqualify a judge for cause.” Minn. R. Crim. P. 26.03, subd. 14(3). But, as
the court of appeals acknowledged, Finch cannot be faulted for first asking the judge for
voluntary disqualification. Under court of appeals precedent, which we endorse today, a
party is entitled to ask the district court judge directly for voluntary disqualification. See
State v. Poole, 472 N.W.2d 195, 197 (Minn. App. 1991) (noting that “a party should not
be discouraged from seeking to have the trial judge recuse himself or herself”).
The problem with the court of appeals’ waiver analysis is that Finch made his
motion in the alternative. He sought voluntary disqualification and, in the alternative—
that is, if the judge declined to disqualify voluntarily—Finch asked for an order
“directing the Chief Judge of the District Court to make a determination as to whether
this [judge] should hear [the case].”4 Thus, Finch did not waive his right to have his
removal motion heard and decided by the chief judge.
4
Finch’s memorandum in support of the motion made clear what he was asking:
“[i]f the Court will not voluntarily recuse herself, Mr. Finch asks that the Chief Judge of
the District Court order her removal and substitute an alternative judge to hear the
probation violation hearing.”
8
The court of appeals also concluded that Finch should have sought review by the
chief judge “between November 1, when the district court denied his motion, and
November 6, when the probation-violation hearing concluded.” Finch, 2014 WL
4494409 at *2. We disagree for two reasons.
First, the court of appeals apparently did not appreciate the sequence of the
proceedings. It is accurate to state that the district court denied the motion on November
1 and concluded the probation violation hearing on November 6. But Finch did not have
time to seek review after his motion was denied. Immediately following the denial of his
motion on November 1, and in the next breath, the district court commenced the
probation revocation hearing and took testimony from several witnesses.
Second, Finch sufficiently preserved the error in the district court. The district
court definitively denied his motion in its entirety, which included the denial of his
alternative motion to refer the motion to the chief judge. Finch did not need to take any
additional steps to preserve the issue for appeal.
Thus, the district court’s decision on Finch’s request to disqualify was properly
before the court of appeals, and is properly before us. We now consider the merits of his
appeal.
III.
While the district court judge had authority to hear and decide the request to
disqualify, in the first instance, the judge had no authority to deny Finch’s alternative
request to refer the removal motion to the chief judge. The denial of the motion in its
9
entirety deprived Finch of his right under Minn. R. Crim. P. 26.03, subd. 14(3), to have
the chief judge hear and determine his request. Thus, the district court erred.
Even so, we must determine if the error is subject to harmless error or structural
error review. The latter is appropriate when errors are “defects in the constitution of the
trial mechanism.” State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005) (quoting Arizona
v. Fulminante, 499 U.S. 279, 309 (1991)). In other words, structural errors are those that
“deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair.’ ” Neder v. United States, 527 U.S.
1, 8-9 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). The “presence of a
partial judge” is one such structural error. Dorsey, 701 N.W.2d at 252 (citing
Fulminante, 499 U.S. at 309).
The right central to the district court’s error—to have the chief judge hear a
disqualification motion—certainly implicates the structural right to have an impartial
judge. But it is not the same. The right to have the chief judge decide a disqualification
motion is a mechanism to protect against the possibility of a disqualified judge remaining
on the case. The failure to follow the procedure, by itself, did not deprive Finch of a
“basic protection” without which the result was fundamentally unfair. See Neder, 527
U.S. at 8-9.
Thus, we apply harmless error analysis, which requires us to determine if the
district court’s error affected a substantial right. See Minn. R. Crim. P. 31.01. In most
situations, an error affects substantial rights if “the error was prejudicial and affected the
10
outcome of the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Put another
way, an error affects a defendant’s substantial rights if there is a reasonable likelihood
that the error had a “significant effect” on the verdict. State v. Sontoya, 788 N.W.2d 868,
873 (Minn. 2010).
But a case involving a potentially disqualified judge is different. In such a case,
the substantial right implicated is the “right to a fair hearing before an impartial tribunal
with a decision maker who does not appear to favor one side.” State v. Schlienz, 774
N.W.2d 361, 367 (Minn. 2009). Therefore, on appeal, Finch does not have to show that
the outcome of the proceeding was prejudiced by the error, but instead must show that the
failure to disqualify affected his substantial right to a fair hearing before a decision maker
who does not appear to favor one side.
A.
A judge is disqualified “due to an appearance of partiality” if a “reasonable
examiner, with full knowledge of the facts and circumstances, would question the judge’s
impartiality.” In re Jacobs, 802 N.W.2d 748, 753 (Minn. 2011). A disqualification
motion is not evaluated from “the perspective of a chief judge,” but rather from the
perspective of a “reasonable examiner”: “an objective, unbiased layperson with full
knowledge of the facts and circumstances.” State v. Pratt, 813 N.W.2d 868, 876 n.8
(Minn. 2012) (citation omitted) (internal quotation marks omitted).
In his disqualification motion, Finch offered multiple arguments that the judge was
biased against him. One is of particular concern: that the judge “had already decided on
executing . . . Finch’s sentence.”
11
At a scheduling hearing, the judge discussed a prosecution offer by which Finch
would agree to have the sentence executed for the probation violation in exchange for
dismissal of his felony escape case. Finch’s counsel advised the judge that Finch rejected
the offer, and stated that “I don’t know what the position of probation is, whether they
believe . . . the violation was significant enough to invoke that third Austin factor. I’m
not sure if the Court’s position as to whether this single, somewhat technical violation is
worthy of execution, if that’s the Court’s position.” The following exchange then
occurred.
[Judge]: So the 36-month execution on the probation case was
rejected by Mr. Finch?
[Finch’s counsel]: That’s correct, Your Honor.
[Judge]: And counsel wasn’t present, I don’t believe, during the
sentencing of Mr. Finch?
[Finch’s counsel]: That’s correct, Your Honor, I was not.
[Judge]: Then you don’t know what Mr. Finch was told at the
time he was sentenced and at the time the Court made
a determination to do a dispositional departure at that
time on an Assault Second Degree where a gun was
involved; you did not hear the conversation that I
clearly had with your client, Mr. Finch, at that time,
did you?
[Finch’s counsel]: I did not, Your Honor.
[Judge]: Okay; perhaps you need to go back and discuss, and
find out from whoever covered the case at that time,
exactly what was specifically stated when I made my
decision to depart, because maybe that history would
be of some benefit to you and your client. It has
nothing to do with the third factor; it has more to do
with what I told you, at the time I decided to make that
departure.
12
The judge provided no further detail about the comments to Finch’s prior counsel.
But, after Finch brought his disqualification motion, the judge, in denying the motion in
its entirety, described the prior conversation in detail:
[T]he Court made it very clear to Mr. Finch that the Court was going out on
a limb with regards to departing, and that the Court expected that he was
going to take advantage of this opportunity and make some changes in his
life. The Court made it very clear at the time that Mr. Finch, if he had any
probation violations of any of the conditions of his probation, the Court
would be executing his prison time.
(Emphasis added). Additionally, in denying the motion, the judge expressed displeasure
that Finch had appealed his original conviction:
[This] caus[es] the Court to reflect on [Finch’s] honesty at the time that he
was sentenced of accepting responsibility. That certainly flies in the face of
an appeal of his stipulated facts trial. So I wonder if the Court was just
duped at that time regarding Mr. Finch’s intentions of turning his life
around. If that’s the case, the Court is somewhat disappointed.5
Our law requires that, before revoking probation, the court must: “1) designate the
specific condition or conditions that were violated; 2) find that the violation was
intentional or inexcusable; and 3) find that [the] need for confinement outweighs the
policies favoring probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The
judge’s remarks indicate that the judge could not impartially make the findings required
by the second and third Austin factors.
5
When denying the request to disqualify, the judge also misstated key facts,
including that Finch left the workhouse to go to Chicago, and that he was picked up on a
warrant. The record is clear that Finch went to Milwaukee to attend a relative’s funeral
and, upon his return to Minnesota, turned himself in.
13
We understand the concerns of the district court when a probationer violates a
condition of his probation, especially when probation was ordered as part of a downward
dispositional departure. But, as we have emphasized, in considering whether to revoke
probation, district court judges “must take care that the decision to revoke is based on
sound judgment and not just their will.” Austin, 295 N.W.2d at 251. Judges must remain
impartial by not prejudging; they must “maintain[] an open mind.” Schlienz, 774 N.W.2d
at 369. And judges “should be sensitive to the ‘appearance of impropriety’ and should
take measures to assure that litigants have no cause to think their case is not being fairly
judged.” McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984). Because the
district court judge unequivocally told Finch that the court would revoke his probation for
any violation, and because the judge speculated that Finch had “duped” the court when he
exercised his right to appeal, a reasonable examiner would question whether the judge
could impartially conduct the proceeding under the Austin factors. Thus, we hold that the
judge was disqualified from the probation revocation proceeding.6
B.
Because the district court judge was disqualified, we next decide whether reversal
is required. We have said that “when a defendant has been deprived of an impartial
judge, automatic reversal is required.” Dorsey, 701 N.W.2d at 253. In a case involving
the appearance of partiality, we have applied a three-factor test to determine whether a
6
By so holding, we do not imply that, at sentencing, judges may not warn
probationers that a violation of probation can have serious ramifications. That can be
done without announcing or implying prejudgment of a probation revocation proceeding.
14
reversal is required. Powell v. Anderson, 660 N.W.2d 107, 120-21 (Minn. 2003) (citing
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)).7 And, in yet
another case of a disqualified judge, we ordered a new trial without reaching the issue of
whether the error was structural. See State v. Pratt, 813 N.W.2d 868, 878 n.9 (Minn.
2012) (new trial required applying either structural error standard or Liljeberg factors).
Here, the record indicates that the district court prejudged a probation revocation
proceeding, reasonably calling into question the judge’s impartiality. Regardless of
which standard is applied, the district court judge’s presence in the probation revocation
proceeding requires vacatur.
IV.
For the foregoing reasons, we reverse the decision of the court of appeals, vacate
the district court’s probation revocation order, and remand for further proceedings before
a different district court judge assigned by the chief judge.
Reversed and remanded.
7
Powell involved a circumstantial disqualification that might allow the failure to
disqualify to be harmless. 660 N.W.2d at 110 (involving respondents who were
represented by the same law firm that represented a trust, of which the appellate judge
was the trustee). See Liljeberg, 486 U.S. at 862 (“As in other areas of the law, there is
surely room for harmless error committed by busy judges who inadvertently overlook a
disqualifying circumstance.”).
15