State v. Dahlin, No. A06-717.

753 N.W.2d 300

STATE of Minnesota, Respondent, v. Michael J. DAHLIN, Appellant.

No. A06-717.

Supreme Court of Minnesota.

July 24, 2008.

Gurdip Singh Atwal, Assistant State Public Defender, St. Paul, MN, for Appellant.

Attorney General — Criminal, St. Paul, MN, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

GILDEA, Justice.

The question presented in this appeal is whether a party has the right to peremptorily remove a district court judge when a case has been remanded and assigned to that judge for a new trial. Because we hold that Minn. R.Crim. P. 26.03, subd. 13(4), does not guarantee a party the peremptory right to remove a judge from presiding over a new trial on remand, we affirm.

Appellant Michael J. Dahlin appeals his conviction for aiding and abetting second-degree murder. The facts underlying the crime are detailed in our opinion in Dahlin's direct appeal. State v. Dahlin, 695 N.W.2d 588, 590-92 (Minn.2005). There, we reversed Dahlin's conviction for first-degree murder because we held that the district court had erred when it did not submit a lesser-included offense instruction to the jury. Id. at 601. We remanded the matter for a new trial, and it was assigned to the same judge who had presided over the first trial.

Dahlin sought to peremptorily remove the judge pursuant to Minn. R.Crim. P. 26.03, subd. 13(4), but the district court denied his request.¹ Dahlin then petitioned the court of appeals for a writ of prohibition to prevent the judge from presiding over the second trial. The court of appeals denied the writ, and Dahlin did not petition our court for further review.²

Dahlin's second jury trial commenced the day before the court of appeals denied his petition for a writ of prohibition. Following trial, the jury found Dahlin guilty of aiding and abetting second-degree intentional murder. The district court convicted Dahlin of this offense and sentenced him to 433 months in prison. The court of appeals affirmed Dahlin's conviction in an unpublished opinion, State v. Dahlin, No. A06-717, 2007 WL 2998956 (Minn.App. Oct. 16, 2007), and we granted review on the removal issue.³

I.

As noted above, Dahlin did not seek review in this court of the court of appeals' order denying his petition for a writ of prohibition. We directed the parties to brief whether Dahlin's failure to seek review of the court of appeals' denial of the writ of prohibition constitutes a waiver of further appellate review of the removal issue. We turn to that procedural question first.⁴

We generally discourage interlocutory appeals, but they are allowed in certain situations. See Minn. R. Civ.App. P. 103.03 (discussing appealable orders).⁵ Interlocutory review is also available in special circumstances, such as by petition for an extraordinary writ pursuant to Minn. R. Civ.App. P. 120. While interlocutory appeals may be available, they are not necessarily mandatory. See Kastner v. Star Trails Ass'n, 646 N.W.2d 235, 240 n. 9 (Minn.2002). But we have previously stated that the right of peremptory removal "`may be waived by failure to seasonably assert it.'" State v. Azure, 621 N.W.2d 721, 724 (Minn.2001) (quoting Jones v. Jones, 242 Minn. 251, 262, 64 N.W.2d 508, 515 (1954)) (holding that appellant waived his right to seek peremptory removal by failing to file a notice of removal with the court administrator and by failing to bring a motion for removal in a timely manner). And we have made clear that the proper remedy to seek review of an order denying the peremptory removal of a judge is a writ of prohibition. Azure, 621 N.W.2d at 725 n. 3; State v. Cermak, 350 N.W.2d 328, 331 (Minn.1984); see State v. Burrell, 743 N.W.2d 596, 601 (Minn.2008).

The writ of prohibition is the proper remedy because this procedure "prevents a judge from proceeding in a matter where he has been disqualified * * * and `avoid[s] the possibl[e] * * * waste of time, money, and effort required of all parties by a procedure which might involve two trials and possibly two appeals in order to adjudicate the issue.'" Azure, 621 N.W.2d at 725 n. 3 (quoting Smith v. Tuman, 262 Minn. 149, 154, 114 N.W.2d 73, 77 (1962)) (citing State v. Scruggs, 421 N.W.2d 707, 717 (Minn.1988), for the proposition that a writ of prohibition is often necessary because it is difficult to review pretrial procedures after a fair trial has occurred). To preserve the peremptory removal issue, a party must therefore seek a writ of prohibition from the court of appeals. Id. ("Thus, a posttrial appeal to this court was not the appropriate way for appellant to obtain review of the denial of his motion to remove.") Dahlin properly invoked this procedure through the court of appeals.

Pursuant to Minn. R. Civ.App. P. 120.05, denial of a writ of prohibition by the court of appeals is subject to review by this court through petition for review under Minn. R. Civ.App. P. 117. Because Dahlin did not petition this court for review of the court of appeals' denial of a writ of prohibition, the question presented is whether this failure bars him from seeking review of what would, in essence, be the merits of the denial of the writ. We have not previously adopted a rule that requires a party to seek review of a court of appeals ruling on an interlocutory issue in order to preserve review of the issue in this court. But the logical extension of the rule we applied in Azure dictates that if a party wishes to obtain review in our court of the denial of the peremptory removal of a judge, that party must petition for review of the court of appeals' order denying relief.

The conclusion that a petition for review is required is reinforced by our analysis in Peterson v. BASF Corp., 675 N.W.2d 57, 68 (Minn.2004), vacated on other grounds, BASF Corp. v. Peterson, 544 U.S. 1012, 125 S.Ct. 1968, 161 L.Ed.2d 845 (mem.) (2005).⁶ In the "unique" circumstances presented there, we held that where a party had filed a petition for review, but did not include all issues that were ripe for decision in that petition, that party could not later seek review of those issues in this court. Id. The issues we found to be "waived" in BASF, which related to choice of law and class certification, involved pure questions of law as presented. Id. at 67. We specifically noted that facts necessary for resolution of the choice of law and class certification questions had not changed between the time of the first petition for review and the time when the case came back to our court after judgment had been entered. Id. at 68. Because of that "unique procedural history," we concluded that allowing BASF to pursue review following entry of judgment of claims that were "ripe" at the time of the first petition for review "would undermine principles of fairness and judicial economy." Id. Accordingly, we held that further review of the legal issues involving choice of law and class certification in our court was waived. Id.

Like the issues raised in BASF, the question presented here is a legal one. In addition, there is no possibility that the development of a factual record would be relevant in any way to resolution of the question of the applicability of the removal right at issue here. Finally, allowing further review now of the question of whether Dahlin had the right to peremptorily remove the judge after that judge had presided over the new trial "would undermine principles of * * * judicial economy." Id.

We held in BASF that if a party petitions for review, the party must bring all claims then ripe in that petition for review or waive further review of such claims in our court. Id. We did not say in BASF that the rule we applied there applied in any other context, and we have not otherwise established a general rule that requires a party to petition for review from adverse rulings by the court of appeals on all interlocutory appeals. We likewise establish no such broad rule in this case. To the contrary, our prior precedent recognizes that the peremptory removal of a judge is different from other questions that are subject to permissive interlocutory appeals. The interlocutory review of the denial of a peremptory removal of a judge is not permissive; it is mandatory. It logically follows therefore that if review is sought in our court, it must be done following an adverse ruling on the interlocutory petition in the court of appeals. In order to avoid a waste of time, resources, and effort by the parties and the court system, cf. Azure, 621 N.W.2d at 725 n. 3, we hold that a party must timely petition this court for review of the denial of a writ of prohibition when the issue involves the right of peremptory removal, and that failure to do so constitutes waiver of further review of the removal issue in this court.

We recognize that the rule we announce here is an extension of the principles in Azure and BASF and that it could be viewed as a departure from the principle that we have recognized elsewhere that the failure to pursue an interlocutory appeal in certain circumstances does not forfeit the right to appellate review. See Engvall v. Soo Line R.R. Co., 605 N.W.2d 738, 745 (Minn.2000) ("The better rule is that failure to appeal from such an interlocutory order or judgment does not result in forfeiture of the right to appeal from the final judgment."). But given the nature of the right at issue in this case, we conclude that a different path is warranted for the unique circumstances presented here. Because our holding could be viewed as a departure from prior practice, we hold that the rule we adopt in this opinion applies prospectively only and that it is not applicable to Dahlin's claim. We therefore proceed to address the merits of Dahlin's appeal.⁷

II.

Dahlin argues that Minn. R.Crim. P. 26.03, subd. 13(4), guarantees a party the right to peremptorily remove a judge from presiding over a new trial on remand. We review...