State v. Belgarde, No. 58872-4

CourtUnited States State Supreme Court of Washington
Writing for the CourtUTTER; Deierlein preside over the retrial. Belgarde thus contends that, under McCrillis; DORE
Citation837 P.2d 599,119 Wn.2d 711
PartiesSTATE of Washington, Respondent, v. Kermit A. BELGARDE, Petitioner.
Decision Date17 September 1992
Docket NumberNo. 58872-4

Page 711

119 Wn.2d 711
837 P.2d 599
STATE of Washington, Respondent,
v.
Kermit A. BELGARDE, Petitioner.
No. 58872-4.
Supreme Court of Washington,
En Banc.
Sept. 17, 1992.

[837 P.2d 600]

Page 713

Nance, Iaria & Gombiner, Robert H. Gombiner, Seattle, for petitioner.

Michael E. Rickert, Skagit County Prosecutor, K. Garl Long, Sr. Deputy, Mount Vernon, for respondent.

UTTER, Justice.

In a third trial, a jury found petitioner Kermit Belgarde guilty of first degree murder and attempted first degree murder. He now seeks a new trial. Two issues are presented: whether Belgarde timely filed his affidavit of prejudice and whether the trial judge had authority to preside over Belgarde's retrial after his retirement. Review of RCW 4.12.050 and article 4, section 7 of the Washington State Constitution indicates Belgarde's affidavit was not timely filed and the retired trial judge had authority to preside over the retrial. We affirm the convictions.

I

Petitioner was initially convicted of first degree murder and attempted first degree murder in 1984 following a trial presided over by Judge Walter Deierlein in the Superior Court for Skagit County. In May of 1988, this court reversed petitioner's convictions. We remanded for a new trial because the prosecutor made repeated improper and prejudicial statements in his closing argument. State v. Belgarde, 110 Wash.2d 504, 506-512, 755 P.2d 174 (1988).

On July 8, 1988, the parties appeared in the Superior Court for Skagit County before Judge Deierlein to set a trial date. Petitioner filed an affidavit of prejudice against Judge Deierlein, asking him to recuse himself from the retrial, which motion was denied. Judge Deierlein reasoned the

Page 714

motion was not timely filed since he made many discretionary rulings in the course of petitioner's first trial. A trial date was not set at this time.

On July 27, 1988, petitioner appeared before Judge Deierlein with new counsel. Counsel requested a trial date in February or March of 1989. 1 Judge Deierlein noted his hesitancy to begin the trial in February or March because his term expired in January. After speaking with Commissioner Mullen, who was running for Judge Deierlein's position, the Judge noted he could "set an order following the election that the trial actually start February 6th before Judge--whomever is elected...." Report of Proceedings, at 79 (July 27, 1988). The Judge noted that trial could be set in November or December if the defense wished. The defense said it preferred the later trial date. The court then scheduled trial to begin on February 6, 1989.

[837 P.2d 601] Jury selection began on February 6, 1989, with Judge Deierlein presiding. On the second day of voir dire, one prospective juror remarked in the presence of the others that Belgarde had "been proved guilty once." Judge Deierlein granted the defense's motion for a mistrial. Jury selection began again on March 6, 1989, again with Judge Deierlein presiding. The jury found him guilty of first degree murder and attempted first degree murder and he was sentenced to life imprisonment.

Petitioner appealed, and the Court of Appeals affirmed his convictions. State v. Belgarde, 62 Wash.App. 684, 815 P.2d 812 (1991). He then sought review of the Court of Appeals' decision in this court. His petition for review raised four issues. This court granted review on only two of the four issues: whether petitioner's affidavit of prejudice was timely filed; and whether Judge Deierlein had jurisdiction to preside over the retrial after he had retired. See Order of March 3, 1992, Granting Discretionary Review.

Page 715

II

Belgarde contends he timely filed his affidavit of prejudice against Judge Deierlein. The issue he raises is one of first impression: when a judgment of a trial court is reversed on appeal and remanded for a new trial, is a party to the original trial entitled to disqualify the judge that presided over the first trial without cause? Based on the discussion that follows, we hold such a party may not disqualify the original trial judge from presiding over the retrial without cause.

RCW 4.12.040 provides in part that no judge "shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is prejudiced against any party or attorney ...". RCW 4.12.040(1). Under RCW 4.12.050, any party or attorney may establish the requisite prejudice by filing a motion and an affidavit alleging the judge is prejudiced against him. See RCW 4.12.050. 2 This statutory timeliness requirement bars a change of judge without cause when, prior to a party's motion for a change of judge, the judge selected to preside over trial (1) has made a discretionary ruling after the party moving for disqualification has become a party to the action and (2) the ruling is one of which the party moving for a change of judge has been given adequate notice. RCW 4.12.050; Marine Power & Equip. Co., Inc. v. Department of Transp., 102 Wash.2d 457, 460-61, 687 P.2d 202 (1984). If a party complies with the statutory provisions, prejudice is deemed established, and the judge no longer has authority to proceed further into the merits of the case. Marine Power, at 460, 687 P.2d 202; State v. Cockrell, 102 Wash.2d 561, 566, 689 P.2d 32 (1984); State v. Dixon, 74 Wash.2d 700, 702, 446 P.2d 329 (1968).

Belgarde argues retrial following reversal on appeal is a different "case" than the case in which the original trial was

Page 716

held, thus entitling him to exercise his right to one change of judge per action under RCW 4.12.050. See, e.g. State ex rel. Mauerman v. Superior Court, 44 Wash.2d 828, 271 P.2d 435 (1954). There, this court held that a proceeding to modify the custody provisions of a final divorce decree, upon allegations of changed conditions since the entry of the decree, was a new proceeding within the meaning of RCW 4.12.040 and .050 that entitled a party to file an affidavit of prejudice against the judge who presided over the first proceeding. Mauerman, at 830, 271 P.2d 435. This court reasoned the modification action was a new proceeding because it "present[ed] new issues arising out of new facts occurring since the entry of the decree." Mauerman, supra.

[837 P.2d 602] In State v. Clemons, 56 Wash.App. 57, 782 P.2d 219 (1989), review denied 114 Wash.2d 1005, 788 P.2d 1079 (1990), the Court of Appeals interpreted "case" in RCW 4.12.050 to include "pretrial, trial, post-trial and appellate proceedings." Clemons, at 59, 782 P.2d 219. There, the Court of Appeals held a retrial following a mistrial due to a hung jury was the same "case" for purposes of RCW 4.12.050. The Court of Appeals, however, specifically declined to consider the issue now presented, whether on remand after appeal RCW 4.12.050 allows a party to disqualify the original trial judge without cause. Clemons, at 59, 782 P.2d 219.

Belgarde's solution for avoiding this sort of prejudice is to read "case" as being interchangeable with "trial." He claims the trial court's resentment of the appellate court's reversal will always engender bias toward the party on retrial following reversal. In order to avoid prejudice against a party in this situation, the party must be allowed to file an affidavit of prejudice against the trial judge to prevent him or her from presiding over the retrial.

Although RCW 4.12.050 does not define the word "case," when a statutory term is undefined, dictionaries may be consulted to determine its meaning. American Legion Post 32 v. Walla Walla, 116 Wash.2d 1, 8, 802 P.2d 784 (1991). In its legal sense, "case" is a general term for an action, cause, suit, or proceeding. Black's Law Dictionary 195 (5th

Page 717

ed. 1979). "Action" is a similar general term and has been defined as the prosecution of a legal right by one party against another. Black's Law Dictionary 26 (5th ed. 1979). In distinction to these general terms, "trial" refers to the judicial examination of a cause of action and is but a phase or portion of the criminal or civil action. See Black's Law Dictionary 1348 (5th ed. 1979). The definitions of these terms militate against Belgarde's position that this court read "case" to mean "trial". "Trial" refers to a relatively finite set of proceedings within the more or less unbounded parameters of a "case" or "action." We conclude in RCW 4.12.050 "case" is used synonymously with "action" or "proceeding" and cannot be used interchangeably with "trial."

When this court has had to decide if a proceeding was a new "case" for determining if a party is entitled to a change of judges as a matter of statutory right, it has utilized the analytic framework developed in State ex rel. Mauerman v. Superior Court, supra. Under Mauerman, a new proceeding or case is one that (1) presents new issues arising out of (2) new facts occurring since the entry of final judgment. Retrial of petitioner following this court's reversal of his convictions is not a new proceeding or case. This court reversed petitioner's convictions because of inflammatory statements made during closing argument. The action was remanded for retrial on the same factual and legal issues.

Existing authority and the meaning of "case" indicate that...

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54 practice notes
  • In re Carrier, No. 83377–0.
    • United States
    • United States State Supreme Court of Washington
    • February 23, 2012
    ...the date of enactment. State v. Pillatos, 159 Wash.2d 459, 471, 150 P.3d 1130 (2007) (citing State v. Belgarde, 119 Wash.2d 711, 722, 837 P.2d 599 (1992)). Conversely, a statute applies prospectively if the precipitating event under the statute occurred after the date of enactment. City of ......
  • State v. Blank, No. 63839-0
    • United States
    • United States State Supreme Court of Washington
    • March 12, 1997
    ...if the event has its origin in a situation that existed "prior to the enactment of the statute." State v. Belgarde, 119 Wash.2d 711, 722, 837 P.2d 599 (1992) (quoting Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass'n, 83 Wash.2d 523, 535, 520 P.2d 162 (1974)). If, however, th......
  • IN RE THE WELFARE OF M.I.S. v. A.S., NO. 41000-8-I
    • United States
    • Court of Appeals of Washington
    • May 24, 1999
    ...prejudice, if the statutory requirements of RCW 4.12.050 are met." State v. Belgarde, 62 Wn. App. 684, 689, 815 P.2d 812 (1991), aff'd, 119 Wn.2d 711, 837 P.2d 599 (1992). "A party is entitled to only one change of Judge as a matter of right." State v. Detrick, 90 Wn. App. 939, 942-43, 954 ......
  • Westerman v. Cary, No. 60383-9
    • United States
    • United States State Supreme Court of Washington
    • November 22, 1994
    ...provision, we seek to ascertain and give effect to the manifest purpose for which it was adopted. State v. Belgarde, 119 Wash.2d 711, 724, 837 P.2d 599 (1992); Seattle v. State, supra 100 Wash.2d at 240, 668 P.2d 1266. We will presume the language carries its ordinary and popular meaning, u......
  • Request a trial to view additional results
54 cases
  • In re Carrier, No. 83377–0.
    • United States
    • United States State Supreme Court of Washington
    • February 23, 2012
    ...the date of enactment. State v. Pillatos, 159 Wash.2d 459, 471, 150 P.3d 1130 (2007) (citing State v. Belgarde, 119 Wash.2d 711, 722, 837 P.2d 599 (1992)). Conversely, a statute applies prospectively if the precipitating event under the statute occurred after the date of enactment. City of ......
  • State v. Blank, No. 63839-0
    • United States
    • United States State Supreme Court of Washington
    • March 12, 1997
    ...if the event has its origin in a situation that existed "prior to the enactment of the statute." State v. Belgarde, 119 Wash.2d 711, 722, 837 P.2d 599 (1992) (quoting Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass'n, 83 Wash.2d 523, 535, 520 P.2d 162 (1974)). If, however, th......
  • IN RE THE WELFARE OF M.I.S. v. A.S., NO. 41000-8-I
    • United States
    • Court of Appeals of Washington
    • May 24, 1999
    ...prejudice, if the statutory requirements of RCW 4.12.050 are met." State v. Belgarde, 62 Wn. App. 684, 689, 815 P.2d 812 (1991), aff'd, 119 Wn.2d 711, 837 P.2d 599 (1992). "A party is entitled to only one change of Judge as a matter of right." State v. Detrick, 90 Wn. App. 939, 942-43, 954 ......
  • Westerman v. Cary, No. 60383-9
    • United States
    • United States State Supreme Court of Washington
    • November 22, 1994
    ...provision, we seek to ascertain and give effect to the manifest purpose for which it was adopted. State v. Belgarde, 119 Wash.2d 711, 724, 837 P.2d 599 (1992); Seattle v. State, supra 100 Wash.2d at 240, 668 P.2d 1266. We will presume the language carries its ordinary and popular meaning, u......
  • Request a trial to view additional results

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