Filed 3/13/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 70

Rodney Ray Chisholm, Plaintiff and Appellant

v.

State of North Dakota, Defendant and Appellee

No. 20180340

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Donald Hager, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Jensen, Justice.

Rodney R. Chisholm (on brief), self-represented, Bismarck, ND, plaintiff and

appellant.

Haley L. Wamstad (on brief), State’s Attorney, Grand Forks, ND, for

defendant and appellee.
Chisholm v. State

No. 20180340

Jensen, Justice.

[¶1] Rodney Chisholm appeals from the district court’s summary dismissal of his

application for post-conviction relief, denial of his motion to compel, denial of his

request for counsel, and denial of his request for a change of judge. We affirm in part,

reverse in part, and remand for further proceedings.

I.

[¶2] Chisholm’s application for post-conviction relief stems from his conviction

of murder on May 3, 2011. Chisholm was sentenced to 30 years’ imprisonment and

we affirmed the conviction. State v. Chisholm, 2012 ND 147, 818 N.W.2d 707.

[¶3] Chisholm previously filed multiple applications for post-conviction relief, one

which was denied by the Honorable Donald Hager. In his most recent application for

post-conviction relief, Chisholm alleges newly discovered evidence entitles him to a

new trial.

[¶4] In conjunction with his application for post-conviction relief, Chisholm filed

a request for a change of judge referencing N.D.C.C. § 29-15-21 and including

allegations that Judge Hager was not impartial. Chisholm also filed a motion to

compel discovery and a request for court-appointed counsel.

[¶5] The Honorable Lolita Hartl-Romanick reviewed Chisholm’s request for change

of judge and denied his request in her capacity as the acting presiding judge. Judge

Hager subsequently denied the motion to compel discovery, denied the application for

court-appointed counsel, and summarily dismissed the application for post-conviction

relief.

[¶6] Chisholm argues the district court erred by summarily dismissing his

application for post-conviction relief, denying his request for counsel, and denying

his motion to compel discovery. He further contends the court erred when it denied

his request for a change of judge.

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II.

[¶7] Chisholm’s demand for change of judge referenced N.D.C.C. § 29-15-21,

which allows for a peremptory challenge of an assigned judge. Within the body of

the demand for change of judge, Chisholm included allegations that Judge Hager

should recuse himself from the case for bias or prejudice.

[¶8] “We distinguish peremptory demands for a change of judge from a demand for

a change of judge based on bias.” Gray v. Berg, 2015 ND 203, ¶ 9, 868 N.W.2d 378. 

“[A] party is entitled to a peremptory challenge of an assigned judge, without alleging

bias or prejudice.” Traynor v. Leclerc, 1997 ND 47, ¶ 11, 561 N.W.2d 644. This

Court is not bound by a party’s label and may look to the substance of the motion to

determine the proper classification. Eagleman v. State, 2016 ND 54, ¶ 18, 877

N.W.2d 1. See, e.g., Grasser v. Grasser, 2018 ND 85, ¶ 8, 909 N.W.2d 99 (motion

for change of judge under N.D.C.C. § 29-15-21 was properly viewed as a motion for

recusal based on bias). We conclude the document submitted by Chisholm contains

two separate requests—a peremptory request for change of judge under N.D.C.C. §

29-15-21 and a request for recusal based on bias.

III.

[¶9] To the extent Chisholm’s request is a peremptory challenge to the assignment

of a particular judge, it is governed by N.D.C.C. § 29-15-21. One of the prerequisites

to reassignment of the case under N.D.C.C. § 29-15-21 is certification by the moving

party that the assigned judge “has not ruled upon any matter pertaining to the action

or proceeding in which the moving party was heard or had an opportunity to be

heard.” N.D.C.C. § 29-15-21(4). Additionally, “no demand for a change of judge

may be made after the judge sought to be disqualified has ruled upon any matter

pertaining to the action or proceeding in which the demanding party was heard or had

an opportunity to be heard.” N.D.C.C. § 29-15-21(3).

[¶10] Judge Hager presided over Chisholm’s prior post-conviction action. Each

application for post-conviction relief is assigned a new civil case number. We have

not previously considered whether successive post-conviction applications should be

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considered new actions or proceedings sufficient to allow a peremptory demand for

a change of judge under N.D.C.C. § 29-15-21.

[¶11] Our prior decisions support a conclusion that successive post-conviction relief

applications are a single action. In Estate of Ketterling, this Court considered whether

to allow a change of judge under N.D.C.C. § 29-15-21 when a formal probate

proceeding was initiated after informal probate proceedings had begun. 515 N.W.2d

158, 166 (N.D. 1994). The appellant contended formal probate proceedings were

distinct from informal proceedings and should be considered a separate proceeding

from the original action. Id. This Court disagreed and held that informal probate and

formal probate actions concerning the same estate were a single proceeding because

they relate to the same matter. Id.

[¶12] Similarly in Falcon v. State, the district court declined to find that a criminal

action and related post-conviction action were separate proceedings. 1997 ND 200,

¶ 19, 570 N.W.2d 719. Falcon argued because post-conviction applications are civil

in nature, filed under a new and separate civil case number, the post-conviction

proceeding is separate from the underlying criminal proceeding. Id. at ¶ 8. This

Court, relying on its decision in Ketterling, held the post-conviction action and the

criminal case concerned the same matter and were not a separate proceeding for the

purpose of a peremptory demand for change of judge under N.D.C.C. § 29-15-21. Id.

at ¶ 11.

[¶13] Having previously held that an initial post-conviction action is a continuation

of the underlying criminal case, it is a logical extension of our holding that subsequent

applications for post-conviction relief are also a continuation of the underlying action.

We affirm the denial of the peremptory demand for change of judge made by

Chisholm under N.D.C.C. § 29-15-21.

IV.

[¶14] Under N.D.C.C. § 29-15-21(6), “the judge sought to be disqualified has no

authority or discretion to determine the timeliness or validity of the demand and shall

proceed no further or take any action in the action or proceeding and is thereafter

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disqualified from doing any further act in the cause unless the demand is invalidated

by the presiding judge.” As such, it was proper for Judge Hartl-Romanick, in her

capacity as the acting presiding judge, to consider and determine the merits of the

peremptory challenge to Judge Hager. Judge Hartl-Romanick also reviewed and

denied Chisholm’s request as a motion based on bias and prejudice.

[¶15] We have previously held motions seeking the recusal of a judge for bias or

prejudice are not within the scope of N.D.C.C. § 29-15-21(6), and the assigned judge

is not disqualified from acting on matters within the case. See, e.g., Schweitzer v.

Mattingley, 2016 ND 231, ¶¶ 14-15, 887 N.W.2d 541 (district court committed

reversible error in allowing a different judge to rule on a motion for recusal based on

bias). Unlike a demand for a change of judge, “a district court judge is not

immediately divested of authority upon the filing of a motion to recuse.” Id. at ¶ 15. 

While “a judge has a duty to recuse when required by the Code of Judicial Conduct,

a judge also has an equally strong duty not to recuse when the circumstances do not

require recusal.” Rath v. Rath, 2016 ND 46, ¶ 31, 876 N.W.2d 474. Rule 2.7, N.D.

Code Jud. Conduct, requires the assigned judge to hear and decide all matters

assigned to the judge, unless disqualification is required or otherwise provided by law.

[¶16] Chisholm’s request for recusal, based on bias or prejudice, was not governed

by N.D.C.C. § 29-15-21, was not required to be considered by another judge, and

should have been determined by the judge assigned to the case. We reverse the denial

of the demand for change of judge based on bias or prejudice and remand for the

assigned judge to consider the request.

V.

[¶17] The district court properly denied the peremptory demand for change of judge,

and we affirm the denial of the peremptory demand. The request for recusal of the

assigned judge should have been considered by the assigned judge, and we therefore

reverse the denial of the request for recusal based on bias and prejudice. We remand

for consideration of the request for recusal for bias or prejudice by the assigned judge

and, subsequent to a determination on the request for recusal, reconsideration of the

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motion to compel discovery, request for appointment of counsel, and summary

dismissal of the post-conviction application.

[¶18] Jon J. Jensen

Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Gerald W. VandeWalle, C.J.

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