April 18, 2008
No Second Bite
A conviction for assault was affirmed by the North Dakota Supreme Court. The trial judge disclosed that he was "socially acquainted" with a witness (their sons play baseball together) and would be "inclined to believe" the testimony of the witness. The parties agreed to a bench trial after the judge had disclosed this fact. Objection was raised on a motion for new trial after conviction. The court upheld the waiver:
"After the criminal judgment had been entered against him, Jacobson moved for a new trial. A party seeking to disqualify a judge from a proceeding must file a timely motion. See Center for Professional Responsibility, supra, at 187. It was improper for Jacobson to wait to see if the district court decision was favorable to him before moving for a new trial on the ground that Judge Haskell should have recused himself from the matter. See id.; see also United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998) (holding "[t]he most egregious delay -- the closest thing to per se untimeliness -- occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal"); Madsen v. Prudential Fed. Sav. & Loan Assn., 767 P.2d 538, 543 (Utah 1988) (quoting 46 Am.Jur.2d Judges § 202, at 225-26 (1969) ("It is a well-recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity. The courts generally apply this rule with strictness against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made.")."
Chief Justice VandeWalle specially concurred. Justice Crothers concurred and dissented in part:
"Given the need for strict compliance with remittal procedures, we should be unwilling to conclude Jacobson agreed to discuss remittal of the Judge's disqualification based on his counsel's concurrence in an in-limine motion concerning documents or records not produced in discovery and not admissible at trial. I also believe we neuter our Canon if we conclude--like the Majority appears to have concluded--that this requirement is satisfied by a party's failure to affirmatively object to the judge continuing to preside over a matter. This is especially true since the question of remittal is not ripe for consideration until after the judge is disqualified." (Mike Frisch)
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