Direct Appeal Is Proper Method By Which to Challenge Denial of Disqualification For Cause Motion; Asking Trial Judge To Recuse Himself or Herself Is Not Waiver of Right To Refer Disqualification to Chief Judge

State v. Finch, Minn.S.Ct., 7/8/2015.  At sentencing the trial court gave Mr. Finch a dispositional departure on an assault conviction.  The judge told Mr. Finch that if he had any probation violations of any of the conditions of his probation the judge would execute the prison time.  Mr. Finch, apparently a sporting fellow, called the judge’s bluff by getting hit with a probation violation.  Mr. Finch walked away from the workhouse and did not return.  The judge issued an arrest warrant and Mr. Finch turned himself in on the warrant.

When Mr. Finch came in for the revocation hearing his attorney moved to disqualify the judge for cause.  The judge denied that request and Mr. Finch’s alternative request to refer the disqualification motion to the chief judge for determination.  The trial judge eventually revoked Mr. Finch’s probation.  Mr. Finch challenged all that by means of this appeal. 

First, the state said that the only way to challenge denial of a cause disqualification motion was by writ.  Justice Lillehaug rejects this contention by distinguishing an appeal of a peremptory recusal from a appeal of a cause recusal.  Appeal of a peremptory appeal must be by writ.  State v. Dahlin, 753 N.W.2d 300 (Minn. 2008).  But not so for appeal of a cause removal. 

Next, the state said that Mr. Finch had waived his ability to have his disqualification motion referred to the chief judge – and thus be reviewed on appeal - by having first asked the trial judge just to give it up.  There is court of appeals precedent, however, which Justice Lillehaug adopts, that says that a party is entitled to ask the district judge directly for voluntary disqualification.  See State v. Poole, 472 N.W.2d 195 (Minn.Ct.App. 1991).  Justice Lillehaug says that under that precedent, combined with the rule, 26.03, subd. 14(3), asking the district judge first does not preclude referral to the chief judge.  There is no waiver by first asking the trial judge.

The court decided that review of the trial court’s error of not referring the disqualification motion to the chief judge is subject to harmless error rather than structural error.  Mr. Finch does not have to show, however, that the outcome of the proceeding – revocation of his probation – was prejudiced by the error; rather, he must show that the error affected his substantial right to a fair hearing before a decision maker who does not appear to favor one side or the other.  The trial judge’s shot across the bow at sentencing – if you come back with a violation of any of the your conditions of probation you’re going to prison – is what trips up the trial judge.  That and his annoyance that Mr. Finch had appealed the original conviction.  These remarks, indeed, make it appear that the trial judge favors one side over the other.  Justice Lillehaug felt that the judge’s remarks indicated that the trial judge could not impartially determine two of the three Austin factors, that a violation was intentionally or in-excusable, and that the need for confinement outweighed the policies favoring probation. 

  For what it’s worth, Mr. Finch gets a new probation revocation hearing before a different judge.