Removal of Post Conviction Judge Who Also Presided Over Trial Requires Showing of Good Cause

Rossberg v. State, Minn.S.Ct., 2/10/2016. Mr. Rossberg commenced this post conviction petition and moved to remove the judge because she had presided over the trial and because he alleged that she had been employed by the prosecutor's office when that office was investigating the case against Mr. Rossberg. The judge denied that removal request, observing, correctly, that Mr. Rossberg did not have an automatic right to remove her.  Hooper v. State, 680 N.W.2d 89 (Minn. 2004). Treating the removal request as a request to remove for cause the judge also denied that.

Justice Wright said that this was error, but harmless error.  A motion to remove a judge for cause must be presented to the chief judge.  Rule 26.03, subd. 14(3).  However, Mr. Rossberg's first cause reason - that the judge had presided over his trial - did not absent more, provide an adequate reason for removal.  His second cause reason - the judge's employment by the prosecutor's office - were, indeed, factually incorrect.  Although the judge had worked as an attorney for certain cities in the district, she had not worked for the prosecutor's office.

Finally, Mr. Rossberg had wanted more time to file an addendum to his petition.  The court said, no and Justice Wright agrees.  Mr. Rossberg had said that he needed more time to access the prison library, but this explanation tripped him up.  The Justice pointed out that Mr. Rossberg didn't need to cite a bunch of law in his petition; rather, he needed to recite specific facts to support his claim for relief and he offered no satisfactory reason why had had not been able to do so in a timely manner.