Pierce v. Pierce

• Citation: 2001 OK 97,39 P.3d 791
• Decision Date: 13 November 2001
• Docket Number: No. 93,764.,93,764.
• Parties: Anne PIERCE, Appellant, v. Gene O. PIERCE, Appellee.
• Court: Supreme Court of Oklahoma

39 P.3d 791

2001 OK 97

Anne PIERCE, Appellant, v. Gene O. PIERCE, Appellee.

No. 93,764.

Supreme Court of Oklahoma.

November 13, 2001.

As Corrected November 21, 2001.

As Modified November 27, 2001.

Rehearing Denied January 8, 2002.

Arnold D. Fagin, Tracy Cotts Reed, Fagin, Fagin, Nixon & Reed, P.C., Oklahoma City, for Appellant.

R. Scott Adams, Adams & Associates, Oklahoma City, for Appellee.

SUMMERS, J.

¶ 1 Plaintiff Anne Pierce argues that the trial judge should have certified his disqualification because Defendant's counsel and counsel's father each gave $5,000 to the judge's campaign, and counsel solicited other campaign contributions on the judge's behalf while the case was pending before the judge. We hold that the record is sufficient to show that the judge should have disqualified. Defendant's counsel failed to show that his campaign efforts on behalf of the judge were minimal in comparison to the total amount raised and number of people soliciting funds on the judge's behalf.

¶ 2 The trial judge assigned to adjudicate the Pierce divorce was a candidate for District Judge while the divorce proceeding was pending. Plaintiff sought to disqualify the trial judge on the basis that counsel for Defendant and counsel's father each contributed $5,000.00 to the judge's campaign while the divorce was pending. She further stated that Defendant Gene O. Pierce had communicated to her that she would not win in the custody dispute involving their child. The trial judge denied the in camera request to disqualify.

¶ 3 Plaintiff re-presented her motion to the Chief Judge. At the hearing on that motion Defendant's counsel admitted his donation to the campaign and stated that "[p]eople that I have solicited have donated money, including my father. . . ." No further facts were presented on the degree or nature of counsel's solicitation of funds on behalf of the trial judge. The Chief Judge declined to require disqualification.

¶ 4 On appeal the Court of Civil Appeals determined that a trial judge's error in not certifying his or her disqualification should be reviewed first in the trial court pursuant to District Court Rule 15, and then by the Supreme Court on an application for mandamus. It stated that when a party does not seek extraordinary relief the alleged error of a judge declining to disqualify is not reviewed on a subsequent appeal unless public policy demands the disqualification. We vacate the opinion of the Court of Civil Appeals, hold that the plaintiff preserved the disqualification error for review on appeal, and that the trial judge should have disqualified.

I. Disqualification Procedure

¶ 5 The first question presented is whether a party must bring an application for mandamus in this Court to challenge a judge's decision that denies a party's application to disqualify the judge. District Court Rule 15 specifies the procedure for disqualifying trial court judges.

Rule 15. Disqualification of Judges in Civil and Criminal Cases.

a. Before filing any motion to disqualify a judge, an in camera request shall first be made to the judge to disqualify or to transfer the cause to another judge. If such request is not satisfactorily resolved, not less than ten (10) days before the case is set for trial a motion to disqualify a judge or to transfer a cause to another judge may be filed and a copy delivered to the judge.

b. Any interested party who deems himself aggrieved by the refusal of a judge to grant a motion to disqualify or transfer a cause to another judge may re-present his motion to the Chief Judge of the county in which the cause is pending or, if the disqualification of a Chief Judge is sought, to the Presiding Judge of the administrative district by filing in the case within five (5) days from the date of said refusal a written request for re-hearing. A copy of the request shall be mailed or delivered to the Chief Judge or Presiding Judge, to the adverse party and to the judge who entered the original order. If the hearing before the second judge results in an order adverse to the movant, he shall be granted not more than five (5) days to institute a proceeding in the Supreme Court or the Court of Criminal Appeals for a writ of mandamus. Neither the Supreme Court nor the Court of Criminal Appeals will entertain an original proceeding to disqualify a judge or to direct a judge to transfer a cause to another judge unless it is shown that the relief sought was previously denied by the judge to whom the matter was re-presented in accordance with this rule. An order favorable to the moving party may not be reviewed by appeal or other method.

c. An original proceeding in mandamus to disqualify a judge in a civil action or proceeding shall be brought in the Supreme Court; an original proceeding in mandamus to disqualify a judge in a criminal case or proceeding shall be brought in the Court of Criminal Appeals. If mandamus is not brought in the appellate court designated as proper by this rule, the case will be transferred to the proper court either on motion or sua sponte. Art. VII, §§ 4 Okla. Const.

12 O.S.1991 Ch. 2, App. 1, Rule 15.

Rule 15(c) covers "an original proceeding in mandamus to disqualify a judge in a civil action." This language identifies the court in which to seek extraordinary relief in civil and criminal actions, but does not require that mandamus be sought in one of the supervisory courts.

¶ 6 The rule-mandated procedure works with the statutory procedure for disqualification.

§ 1403. Disqualification of judge, claim of — Mandamus

Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three (3) days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.

20 O.S.1991 § 1403.

A review of the history of § 1403 shows its mandatory and discretionary elements.

¶ 7 The original purposes of § 1403 were to provide a procedure for parties to avoid a trial before a disqualified judge, and to create a court record on the disqualification issue so that the jurisdiction of the replacement judge would appear on the face of the record. Ex parte Hudson, 1910 OK CR 3, 3 Okla.Crim. 393, 107 P. 735, 737, and 3 Okla. Crim. 393, 106 P. 540, 544. That court also noted that the statute was created to correct the practice of disqualifying a judge upon a mere affidavit after a case had been called for trial, because abuse of that procedure had "thrown into confusion" the business of the court. Ingles v. McMillan, 1911 OK CR 5, 5 Okla.Crim. 130, 113 P. 998, 1000, Lewis v. Russell, 1910 OK CR 4, 4 Okla.Crim. 129, 111 P. 818, 819.

¶ 8 We have explained that since the adoption of § 1403¹ where a party had knowledge of the alleged grounds of the disqualification of the trial judge for more than three days prior to the trial, and that party did not use the procedure prescribed by that section, the party cannot urge the disqualification on appeal, or in a collateral attack, on the judgment rendered and orders made by said judge. State ex rel. Dabney v. Ledbetter, 1932 OK 229, 156 Okla. 23, 9 P.2d 728, 729, quoting, Holloway v. Hall, 1920 OK 287, 79 Okla. 163, 192 P. 219, 220.² Thus, when the statute states that a party "may" file a written application with the court clerk to disqualify a judge the language is permissive in the sense that a party may or may not file the application, but if a party seeks judge disqualification we have held that filing the statutory application is mandatory.³

¶ 9 Our opinions indicate that when the procedure in § 1403 is followed a party may raise the disqualification issue on a subsequent appeal. Does the term "may" in the language "application may be made to the proper tribunal for mandamus" allow a party the option of raising the disqualification issue on appeal instead of by mandamus, or is "may" used in the same way as in the language stating that a party "may" file a written application for disqualification with the court clerk? The published opinions of this Court indicate the former, i.e., that a mandamus proceeding is not required.

We have stated:

The procedure, under proper circumstances, may be by mandamus, or the party may object and save his exceptions to the overruling of his petition for disqualification and proceed with his cause, and thus save the question for review. In any event, the complaining party must proceed by application to the court as provided by statute, supra. If this is not done the litigant is deemed to have waived the question (State ex rel. Attorney General v. Davenport, 125 Okl. 1, 256 P. 340), unless the circumstances are such that the demands of public policy would require disqualification. In such case the parties may not waive the disability.

In re Miller's Estate, 1938 OK 289, 182 Okla. 534, 78 P.2d 819, 822, citation added.

Miller's Estate indicates that after a party preserves the disqualification issue in the trial court the alleged error may be raised by a mandamus proceeding or in a subsequent appeal. See also Jones v. Cabaniss, 1939 OK 122, 185 Okla. 237, 90 P.2d 650, 651, where we stated that a party "was authorized to proceed by mandamus or to present his defense and preserve his rights throughout the trial." Accord, Morissette v. Musgrave, 1940 OK 486, 188 Okla. 222, 108 P.2d 123, 125, quoting, Jones v. Cabaniss, supra. This concept was subsequently cited in Graham v. Graham, 1967 OK 210, 434 P.2d 245, where the party did not bring a mandamus proceeding, and we concluded that the party failed to show that the trial court abused its discretion in refusing to disqualify.

¶ 10 We conclude that a party seeking disqualification...