Farm Credit Bank of St. Paul v. Brakke

• Decision Date: 08 March 1994
• Docket Number: 930312,Nos. 930227,s. 930227
• Citation: 512 N.W.2d 718
• Court: North Dakota Supreme Court
• Parties: FARM CREDIT BANK OF ST. PAUL, f/k/a Federal Land Bank of St. Paul, a federally chartered instrumentality of the United States, Plaintiff, and Kirk Cossette, Plaintiff and Appellee, v. Chester A. BRAKKE, Alice Brakke, individually and as a trustee of Pioneer Life Trust, Nancy Bye, Ronald D. Brakke, individually and as a trustee of E.L. Price Trust, Pioneer Life Trust, Harold Bergman, individually and as a trustee of Common Title Bond & Trust, Common Title Bond & Trust, E.L. Price Trust, Elaine Price Trust, and E.L. Price Bank, Defendants, Chester A. Brakke, Alice Brakke, Ronald D. Brakke, Defendants and Appellants. FARM CREDIT BANK OF ST. PAUL, f/k/a Federal Land Bank of St. Paul, a federally chartered instrumentality of the United States, Plaintiff, and Kirk Cossette, Plaintiff and Appellee, v. Chester A. BRAKKE, Alice Brakke, individually and as a trustee of Pioneer Life Trust, Nancy Bye, Ronald D. Brakke, individually and as a trustee of E.L. Price Trust, Pioneer Life Trust, Harold Bergman, individually and as a trustee of Common Title Bond & Trust, E.L. Price Trust, Elaine Price Trust, and E.L. Price Bank, Defendants, Alice Brakke, Ronald D. Brakke, Defendants and Appellants. Civ.

Page 718

512 N.W.2d 718

FARM CREDIT BANK OF ST. PAUL, f/k/a Federal Land Bank of St.

Paul, a federally chartered instrumentality of the

United States, Plaintiff, and Kirk Cossette, Plaintiff and Appellee, v. Chester A. BRAKKE, Alice Brakke, individually and as a

trustee of Pioneer Life Trust, Nancy Bye, Ronald D. Brakke,

individually and as a trustee of E.L. Price Trust, Pioneer

Life Trust, Harold Bergman, individually and as a trustee of

Common Title Bond & Trust, Common Title Bond & Trust, E.L.

Price Trust, Elaine Price Trust, and E.L. Price Bank, Defendants,

Chester A. Brakke, Alice Brakke, Ronald D. Brakke,

Defendants and Appellants.

FARM CREDIT BANK OF ST. PAUL, f/k/a Federal Land Bank of St.

Paul, a federally chartered instrumentality of the

United States, Plaintiff, and Kirk Cossette, Plaintiff and Appellee, v. Chester A. BRAKKE, Alice Brakke, individually and as a

trustee of Pioneer Life Trust, Nancy Bye, Ronald D. Brakke,

individually and as a trustee of E.L. Price Trust, Pioneer

Life Trust, Harold Bergman, individually and as a trustee of

Common Title Bond & Trust, E.L. Price Trust, Elaine Price

Trust, and E.L. Price Bank, Defendants,

Alice Brakke, Ronald D. Brakke, Defendants and Appellants.

Civ. Nos. 930227, 930312.

Supreme Court of North Dakota.

March 8, 1994.

Michael D. Nelson (argued), Ohnstad Twichell, West Fargo, for plaintiff and appellee.

Ronald D. Brakke (argued), pro se.

NEUMANN, Justice.

Farm Credit Bank (FCB) and purchaser (Cossette) brought suit to quiet title and to enjoin defendants' (Brakkes) interference with their use of the land. The district court quieted title in FCB and Cossette, and permanently enjoined Brakkes from interfering with their ownership. Brakkes appealed. The permanent injunction was affirmed in part, and remanded with instructions to delete two specific provisions of the injunction. Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d 167 (N.D.1992). The case was also remanded for the limited purpose of determining whether or not Brakkes were entitled to compensation for their costs associated with services performed on Cossette's tract of land before the partition judgment was entered. On remand, the district court tried and dismissed Brakkes' equitable action, and denied their motion for a new trial. Brakkes appeal from the judgment of dismissal, and the order denying the motion for a new trial. We affirm.

The facts of this appeal pick up where we left off in Brakke, 483 N.W.2d at 167, in which we affirmed in part, reversed in part, and remanded for the limited purpose of determining the Brakkes' equitable claim for expenses incurred in planting, cultivating, fertilizing, and spraying for weeds and insects before the partition judgment was entered. Consistent with that opinion, the trial court amended the permanent injunction, and set a trial date to determine the equitable issue remanded. On February 25, 1993, in connection with setting the trial date for May 6, 1993, the district court granted Cossette's motion to strike Brakkes' certificate of nonreadiness.

In March of 1993, Brakkes commenced two new lawsuits, one in state district court and one in federal district court. The list of over 35 named defendants in these actions included the State of North Dakota, Cass County, Cass County Judges Georgia Dawson and Frank Racek, and state district court Judges Lawrence Leclerc and Cynthia Rothe. The claims against Judge Rothe arise out of her earlier rulings in this case. Seeking a continuance until an impartial judge could sit on the case, on April 23, 1993, Brakkes filed an "Ex Parte Motion for Continuance." Judge Rothe denied this motion from the bench at the outset of the trial on May 6, 1993. The only party present at the trial of the equitable issue was Cossette, who appeared personally and with counsel. The Brakkes did not appear personally, and no counsel appeared on their behalf. At the conclusion of the hearing, Judge Rothe ordered that Brakkes' equitable claim be dismissed, and judgment was entered later that same day.

On June 9, 1993, Brakkes filed a motion for a new trial, and on July 1, 1993, filed a notice of appeal from the judgment of dismissal of the equitable claim. On July 28, 1993, we remanded the case to the district court for the limited purpose of allowing the trial court to consider the pending motion for new trial. The hearing on the motion for a new trial was held on September 8, 1993. A continuance motion made by Brakkes was denied from the bench at the start of the September 8, 1993, hearing. After receiving exhibits into evidence, and listening to the parties' arguments, Judge Rothe ruled from the bench and denied the motion for a new trial. Brakkes appealed from this order as well.

The appeal from the judgment of dismissal of the equitable claim and the appeal from the order denying the motion for a new trial have been consolidated here. We preface our discussion of the issues by noting the lack of a transcript on appeal. "Without a transcript, we can review only the briefs and record to make a 'meaningful and intelligent' decision regarding the outcome of this case." Hieb v. Jelinek, 497 N.W.2d 88, 90 (N.D.1993). It is the appellants' responsibility to obtain a transcript. Dakota Bank & Trust Co. of Fargo v. Federal Land Bank of St. Paul, 437 N.W.2d 841 (N.D.1989); N.D.R.App.P. Rule 10(b). They therefore must bear any consequences of failing to provide a transcript on appeal. Dakota Bank & Trust Co. of Fargo, 437 N.W.2d at 841.

Brakkes raise several issues on appeal. The most noteworthy of these is the argument that the trial judge should have recused herself. Brakkes state two reasons for this proposition. First, they argue that the trial judge was not impartial, and second, they argue that recusal was required because the trial judge was a named defendant in an action initiated by the Brakkes. Judges' disqualification decisions are directed by the North Dakota Rules of Judicial Conduct. E.g., Sargent County Bank v. Wentworth, 500 N.W.2d 862, 877 (N.D.1993); N.D.R.Jud.Cond.Rules 2 & 3. Violation of a Rule of Judicial Conduct can result in reversal of a judgment. Wentworth, 500 N.W.2d at 879-80.

The Rules provide that a judge is required to avoid impropriety and the appearance of impropriety in all the judge's activities. Rule 2. Disqualification "is appropriate when the judge's impartiality might reasonably be questioned." Rule 3(C)(1). The appearance of impartiality can be as important as the fact. Rule 3(C).

"The disqualification directions in Rule 3(C) are not merely guidelines; they are mandatory. Our primary concern is the preservation of public respect and confidence in the integrity of the judicial system, which 'can only be maintained if justice satisfies the appearance of justice.' Even without intentional bias, disqualification can be essential to satisfy the appearance of justice."

Wentworth, 500 N.W.2d at 877-78 (citations omitted).

Brakkes' claim of actual bias or lack of impartiality is without merit. "The law presumes a judge is unbiased and not prejudiced." Terry v. State, 602 N.E.2d 535, 540 (Ind.Ct.App.1992). Brakkes have failed to raise any valid instance or evidence of actual bias or lack of impartiality. A ruling adverse to a party in the same or prior proceeding does not render a judge biased so as to require disqualification. E.g., In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir.1993); see also Wentworth, 500 N.W.2d at 879 n. 10 ("A disagreement on legal questions does not evidence bias."). To the contrary, it appears this trial judge has persevered through what, at times, must have been trying proceedings.

Additionally, Brakkes argue that the mere fact that the trial judge has been named as a defendant in a lawsuit they filed is enough to require the judge's recusal. Brakkes rely on Rule 3(C) of the North Dakota Rules of Judicial Conduct, which requires judges to disqualify themselves when they find themselves in proceedings in which their impartiality might reasonably be questioned.

This is a matter of first impression in this state. We decline Brakkes' invitation to adopt such a per se rule. In so doing, we join the overwhelming number of jurisdictions that have rejected a flat rule that would allow litigants to eliminate judges they found unsatisfactory merely by filing lawsuits against those judges. E.g., In re Hipp, Inc., 5 F.3d at 109; Andersen v. Roszkowski, 681 F.Supp. 1284 (N.D.Ill.1988), aff'd, 894 F.2d 1338 (7th Cir.1990); United States v. Blohm, 579 F.Supp. 495 (S.D.N.Y.1983); In re Martin-Trigona, 573 F.Supp. 1237 (D.Conn.1983), appeal dismissed, 770 F.2d 157 (2d Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986); In re Schaefer, 154 B.R. 227 (Bankr.S.D.Tex.1993); In re Krisle, 54 B.R. 330 (Bankr.D.S.D.1985); In re Ronwin, 139 Ariz. 576, 680 P.2d 107, 117 (1983) ("To honor such a technique would be to put the weapon of disqualification in the hands of the most unscrupulous."), cert. denied sub nom. Ronwin v. Supreme Court of Ariz., 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983); Terry, 602 N.E.2d at 535; Spremo v. Babchik, 155 Misc.2d 796, 589 N.Y.S.2d 1019 (N.Y.Sup.Ct.1992).

"A judge is not disqualified merely because a litigant sues or threatens to sue him." United States v. Grismore, 564 F.2d 929, 933 (10th Cir.1977), cert. denied sub nom. Grismore v. United States, 435 U.S. 954, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). These decisions, however, must be evaluated on an individual basis. When making recusal decisions, the judge must determine whether a reasonable person could, on the basis of all of the facts, reasonably question the judge's impartiality. E.g., In re Hipp, Inc., 5 F.3d at 109; see Wentworth, 500 N.W.2d at 862 (attorney represented judge in active suit). Without a transcript, we do not know whether the trial judge used this standard in reaching her decision not to recuse herself.

The appearance of partiality test is one of...