MARTIN v. DIERINGER (2005)

ORDER

Petition for Review.

On consideration of the petition for review filed on 8/12/05, and the response filed on 9/1/05.

This petition for review is taken from the superior court's order of June 21, 2005, denying petitioner's notice of change of judge.   This court returned jurisdiction of this case to the superior court on March 21, 2005.   On May 27, 2005, Judge Steinkruger entered an “Order Upon Conclusion of Appeal” stating that further proceedings would be conducted before her.   After being served with this order, petitioner filed a notice of change of judge that was timely unless there had been an earlier permanent assignment to Judge Steinkruger.

Judge Steinkruger ruled that there was an earlier assignment in an order entered March 6, 2003, which stated as follows:

Notice of Reassignment

This case will be assigned to the next appointed Superior Court judge in Fairbanks.   Until that occurs, Judge Niesje J. Steinkruger is assigned to this case.

Judge Steinkruger ruled that the notice of change of judge was untimely because of the March 6, 2003 order.

Under Civil Rule 42(c) a party is entitled to change one judge as a matter of right.   Our case law makes it clear that notice of a permanent assignment of a judge is necessary in order to start the five-day period for filing a notice of change of judge.   A waiver of a party's right to peremptorily challenge a judge “can be found only ․ after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial.”  Tunley v. Municipality of Anchorage School Dist., 631 P.2d 67, 73 (Alaska 1980) (emphasis added).   This standard was not met in this case as the order of March 6, 2003, was not a permanent assignment.

Accordingly,

IT IS ORDERED:

1. The petition for review is GRANTED.

2. The superior court's order of June 21, 2005, denying petitioner's notice of change of judge under Civil Rule 42(c) is REVERSED and this case is REMANDED for further proceedings.

Entered by the direction of the court.

BRYNER, Chief Justice, not participating.