S055655, Opinion — State v. Pena

198
Argued and submitted June 3, alternative writ of mandamus is dismissed
August 14, 2008
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
OSCAR F. PENA,
Defendant-Relator,
and
Presiding Judge
Jean Kerr MAURER,
Intervenor.
(CC 071035138; SC 8055655)
191P3d659

Cite as 345 	199
CJS, Judges§ 136.
En Banc
Original proceeding in mandamus.*
Paul L. Smith, Assistant Attorney General, Salem, argued
the cause and filed the brief for plaintiff-adverse party.
Laura Graser, Portland, argued the cause and filed the
briefs for defendant-relator.
Roy Pulvers, of Hinshaw & Culbertson LLP, Portland,
filed the brief for intervenor Presiding Judge Jean Kerr
Maurer.
GILLETTE, J.
Alternative writ of mandamus is dismissed.
* On petition for a writ of mandamus from an order of the Multnomah County
Circuit Court, Jean Kerr Maurer, Presiding Judge.

200 	State v. Pena
GILLETl'E, J.
This is an original mandamus proceeding in which
the defendant in an aggravated murder case seeks to compel
the presiding judge of the Multnomah County Circuit Court
to disqualify the judge assigned to hear his case in the under-
lying criminal action. For the reasons that follow, we dismiss
the writ.
The following undisputed facts are pertinent to our
decision. On October 29, 2007, defendant was indicted on
multiple charges, including a charge of aggravated murder,
in the death of Ricardo Martinez. Defendant was arraigned,
and defense lawyers Falls and Berger were assigned to rep-
resent him. On November 1, 2007, the case was assigned to
Judge Fuchs. On December 6, 2007, the October 29 indict-
ment was dismissed, and defendant was charged in a sepa-
rate indictment by the same grand jury with the aggravated
murder of Martinez and, among other things, an additional
unrelated 	charge 	of the intentional murder of Michael
Mason. Court staff and the prosecutor notified Falls and
Berger of the reindictment. Defendant was arraigned on that
indictment, with counsel present, on December 7, 2007.
On December 14, 2007, defendant appeared before
Fuchs at a bail hearing, at which defendant asserted that the
prosecution had not provided him with meaningful discovery.
During that hearing, defendant moved to exclude a witness.
Fuchs denied that motion, but ruled that defendant's counsel
would be given additional time to review various discovery
items before cross-examining certain of the state's witnesses.
Defendant made an additional motion to exclude another
witness's testimony, which Fuchs denied. However, Fuchs
agreed to continue the bail hearing until a date in January to
allow defense counsel additional time to review the discovery
material.
On December 28, 2007, the December 6 indictment
was itself dismissed and defendant was indicted for a third
time by the same grand jury. The December 28, 2007, indict-
ment changed the murder count involving the victim Mason
to a charge of aggravated murder; it also added one count of
first-degree 	robbery. 	Defendant 	was 	arraigned 	on 	that
December 28 indictment on December 31, 2007. Neither

Cite as 345 Or 198 	201
Falls nor Berger had been given a sufficiently timely notice of
the December 28 indictment or of the arraignment on that
indictment to permit one of them to attend the arraignment,
and neither was present. Defendant was, however, temporar-
ily represented by the on-duty public defender, who was pres-
ent in the courtroom at that time. At the arraignment, the
judge notified defendant that the case remained assigned to
Fuchs and the court "re-appointed" Berger as defendant's
counsel.
On January 3, 2008, Berger and Falls received
paperwork concerning the December 28 indictment and the
arraignment, which included the information about the
assignment of the case to Fuchs. That day, defendant filed a
motion to remove Fuchs. In defense counsel's affidavit in sup-
port of that motion, counsel asserted that the district attor-
ney's office had committed numerous discovery violations in
the case and that Fuchs's apparent unwillingness to sanction
the prosecution for those violations at the bail hearing caused
counsel to feel that defendant could not receive a fair trial
before her. Counsel added that that feeling was compounded
by the fact that neither the court nor the prosecution had
provided adequate notice to either Falls or Berger of the
December 28 indictment or the arraignment, despite the
court's and the prosecution's actual knowledge that Falls and
Berger represented defendant.
On January 14, 2008, Presiding Judge Maurer held
a hearing on defendant's motion to recuse Fuchs. Maurer
denied the motion, stating,
"I wouldn't be inclined to allow the recusal if you've
appeared in front of [Fuchsl, notwithstanding the fact that
there are apparently additional charges and/or that there
were additional dismissals and reindictments. The rules
simply would not allow for an attorney having perhaps
some rulings that the attorney was not happy with to then
jump ship.
"The issue that you raise is an interesting one which is
once a case has been dismissed and had been indicted again
or reindicted whether that changes the rules. That's why I
asked if you'd made an appearance.*** But since you have
made an appearance and she has taken testimony, pres-
ently I am going to deny your request."

State v. Pena
Defendant then commenced this mandamus pro-
ceeding, alleging that the presiding judge was legally obli-
gated to grant defendant's motion to recuse Fuchs. This court
issued an alternative writ, the presiding judge declined to
change her ruling, and the case is now before us for decision.
Before discussing the parties' arguments, it is help-
ful to set out the pertinent statutes. ORS 14.250 provides:
"No judge of a circuit court shall sit to hear or try any
suit, action, matter or proceeding when it is established, as
provided in ORS 14.250 to 14.270, that any party or attor-
ney believes that such party or attorney cannot have a fair
and impartial trial or hearing before such judge. In such
case the presiding judge for the judicial district shall forth-
with transfer the cause, matter or proceeding to another
judge of the court * * *."
ORS 14.260 provides:
"(1) 	Any party to or any attorney appearing in any
cause, matter or proceeding in a circuit court may establish
the belief described in ORS 14.250 by motion supported by
affidavit that such party or attorney believes that such
party or attorney cannot have a fair and impartial trial or
hearing before such judge, and that it is made in good faith
and not for the purpose of delay. No specific grounds for the
belief need be alleged. Such motion shall be allowed unless
the judge moved against, or the presiding judge for the judi-
cial district, challenges the good faith of the affiant and sets
forth the basis of such challenge. In the event of such chal-
lenge, a hearing shall be held before a disinterested judge.
The burden of proof shall be on the challenging judge to
establish that the motion was made in bad faith or for the
purposes of delay.
"* * * * *
"(3) 	No motion to disqualify a judge shall be made
after the judge has ruled upon any petition, demurrer or
motion other than a motion to extend time in the cause,
matter or proceeding. * * *
"(4) 	In judicial districts having a population of 100,000
or more, the affidavit and motion for change of judge shall
be made at the time and in the manner prescribed in ORS
14.270.

Cite as 345Or198 (2008) 	203
"(5) 	No party or attorney shall be permitted to make
more than two applications in any cause, matter or proceed-
ing under this section."
Defendant was indicted in this case in Multnomah
County, a judicial district having a population of more than
100,000. Therefore, under ORS 14.260(4), defendant's motion
for change of judge was required to be made "at the time and
in the manner prescribed in ORS 14.270." That statute
provides:
"An affidavit and motion for change of judge to hear the
motions and demurrers or to try the case shall be made at
the time of the assignment of the case to a judge for trial or
for hearing upon a motion or demurrer. Oral notice of the
intention to file the motion and affidavit shall be sufficient
compliance with this section providing that the motion and
affidavit are filed not later than the close of the next judicial
day. No motion to disqualify a judge to whom a case has
been assigned for trial shall be made after the judge has
ruled upon any petition, demurrer or motion other than a
motion to extend time in the cause, matter or proceeding;
except that when a presiding judge assigns to the presiding
judge any cause, matter or proceeding in which the presid-
ing judge has previously ruled upon any such petition,
motion or demurrer, any party or attorney appearing in the
cause, matter or proceeding may move to disqualify the
judge after assignment of the case and prior to any ruling
on any such petition, motion or demurrer heard after such
assignment. No party or attorney shall be permitted to
make more than two applications in any action or proceed-
ing under this section."
(Emphases added.)
The provisions of ORS 14.250 to 14.270 are an exer-
cise oflegislative grace. Under them, it is not necessary for a
party to show that some source of law (such as the state or
federal constitution) requires removal of the judge. Cf In re
Murchison, 349 US 133, 75 S Ct 623, 625, 99 L Ed 942 (1955)
("A fair trial in a fair tribunal is a basic requirement of due
process."). Rather, those statutes give to a party or the party's
lawyer the right to remove a judge merely because the party
or the lawyer believes that the judge cannot provide a fair and
impartial trial, regardless of the judge's actual fairness or
impartiality. See State ex rel Kafoury v. Jones, 315 Or 201,

204 	State v. Pena
207, 843 P2d 932 (1992) (so stating). That is, the "primary
issue [in deciding whether to grant a motion to remove a
judge] is the belief of the mouing party, not the objective truth
of that belief." Id. at 205 (emphasis in original).
In this case, no one argues that defendant's motion
was not made in good faith or was made for purposes of delay.
Rather, as noted above, the presiding judge denied defen-
dant's motion on the ground that Fuchs had taken testimony
and made rulings at the bail hearing on the December 6
indictment, and that, because she had done so, defendant's
motion for her recusal came too late.
Defendant argues that, under the plain words of
ORS 14.270, motions for change of judge are to be made "at
the time of the assignment of the case," and that those words
mean that, each time an assignment is made, there is a "new"
case and the parties have a new opportunity to remove the
judge. In this case, defendant was indicted three times on
similar, but not identical, charges. Each time that defendant
was 	indicted, 	an 	arrest 	warrant 	was 	issued, 	he 	was
arraigned, and a judge was assigned to preside over the trial.
According to defendant, defendant had a separate opportu-
nity under the statute to remove the judge each time defen-
dant was indicted and a judge assigned for trial.
Defendant 	also 	takes 	issue 	with 	the 	presiding
judge's conclusion that removal was not permissible because
Fuchs had taken testimony and made rulings at the bail
hearing. Defendant argues that Fuchs had not made "sub-
stantive" rulings; instead, defendant asserts, the rulings that
she made "were so obvious as to be almost ministerial," and
did not preclude a subsequent recusal motion.
The state responds that, when a charging instru-
ment contains allegations arising out of the same acts or
transactions as were alleged in the prior charging instru-
ment, the subsequent instrument cannot be said to create a
new "case" for purposes of ORS 14.270. It follows that defen-
dant's only opportunity to move to recuse Fuchs was when
she first was assigned to the case in November 2007. The
state also argues that Fuchs did make substantive rulings at
the bail hearing, which, under ORS 14.270, also would bar
defendant's motion to remove her.

Cite as 345 Or 198 	205
Finally, the state argues that, even if defendant were
correct that each successive indictment created a new case
for purposes ofrecusal motions under ORS 14.250 to 14.270,
which then reset the time period for seeking removal of the
judge assigned to the case, defendant's January 3, 2008,
motion was untimely because he did not follow the proce-
dures in ORS 14.270 for such motions. The state points out
that defendant learned in open court on Monday, December 31,
2007, of the assignment of Fuchs as the trial judge in his case.
Defendant did not object to that assignment and neither he
nor the public defender provided oral notice to the court that
day of their intent to move to disqualify Fuchs. Moreover,
defendant did not file a written motion to disqualify Fuchs by
"the close of the next judicial day," as required by ORS
14.270. Tuesday, January 1, 2008, was a court holiday; the
next judicial day was Wednesday, January 2, 2008. Defen-
dant did not file his motion to remove Fuchs until Thursday,
January 3, 2008. According to the state, that was untimely. 1
As we will explain, we agree with the state that
defendant's motion to remove Fuchs was untimely, even if
the December 28 indictment resulted in the creation of a new
case for purposes of ORS 14.250 to 14.270. We therefore
assume, for purposes of this opinion, that defendant is correct
that the statute provided him a new opportunity to move for
removal of a judge each time defendant was reindicted and
Fuchs was assigned to the case.
As noted above, ORS 14.270 provides that an affida-
vit and motion for a change of judge "shall be made at the
time of the assignment of the case to a judge for trial * * *."
That statute further provides that oral notice of an intent to
' The state argues that mandamus js not an appropriate remedy, because
defendant has a direct appeal remedy if he is ultimately prejudiced by having
Fuchs preside over his trial. We think that argument is unresponsive, however. As
discussed in the text above, under ORS 14.250 to 14.270, a party or the party's law-
yer is entitled to have an assigned judge removed before trial if he or she merely
has a good faith belief that the assigned judge may not provide a fair trial. Those
statutes do not require a party to suffer actual prejudice as a prerequisite to
removal of a judge. And, because there is no direct appeal remedy after a verdict to
address a defendant's mere perception of unfairness, in the absence of proof of
actual prejudice, mandamus is an appropriate remedy to correct an erroneous
denial of a motion to remove a judge before trial.

206 	State v. Pena
remove a judge at that time is sufficient, as long as an affi-
davit and motion are filed by the end of the next judicial day.
Id. In this case, it is undisputed that the judge presiding over
the arraignment on December 31, 2007, announced in court
at that time that Fuchs would be the trial judge. It further is
undisputed that defendant neither provided oral notice of his
intent to ask for removal of Fuchs at that time, nor filed an
affidavit and motion to remove the judge by the end of the
next judicial day, January 2, 2008. Under the plain terms of
ORS 14.270, those actions were required, and defendant's
January 3, 2008, motion was untimely.
Defendant argues to the contrary, suggesting that a
judge is "assigned" to a case, for purposes of ORS 14.270,
when counsel learns of the assignment. In support of that
proposition, defendant relies on a statement in a Court of
Appeals decision, Allee v. Morrow, 175 Or App 308, 317, 28
P3d 651 (2001), rev den, 334 Or 121 (2002), that a judge is
"assigned" for purposes of ORS 14.270 "when counsel is
apprised of an assignment by the court, either in open court
or through direct communication from the court." Therefore,
according to defendant, 	because his lawyers, Falls and
Berger, were not present at the arraignment, Fuchs was not
"assigned" to his case until Falls and Berger received written
notice of the assignment on January 3, 2008. And, defendant
concludes, because counsel filed an affidavit and motion to
remove Fuchs that same day, his motion was timely.
We observe at the outset that ORS 14.270 does not
define when a case has been "assigned" to a judge under that
statute. 2 However, the permissibility of giving oral notice of
2 The presiding judge has intervened in this case and asserts that the fact that
defendant's case was assigned to Fuchs on December 31, 2007, was posted on the
court's computerized docket system, OJIN, that day, and that that information
contemporaneously was available to the public. She contends that that OJIN entry
should be treated as triggering the notice and filing requirements for removal of
judges under ORS 14.250 to 14.270 and under Multnomah County Circuit Court's
local rule on the matter, SLR 7.045(3), which provides:
"If a judge is assigned [as was true in this case], a motion to disqualify that
judge, with an order and supporting affidavit, must be presented to the Presid-
ing Judge at ex parte by the close of the judicial day following notice of the
assignment."
In light of our conclusion that defendant was orally notified of the assignment of
Fuchs at his arraignment on December 31, we need not decide whether publication

Cite as 345 Or 198 	207
intent to remove a judge "at the time of the assignment" sug-
gests that, for purposes of ORS 14.270, at least one way that
an assignment of a judge occurs is when the identity of the
judge is announced in open court. However, nothing in ORS
14.250, ORS 14.260, or ORS 14.270 indicates that only an
announcement of the identity of the assigned judge in open
court to a party or the party's lawyer would constitute an
"assignment" for purposes of triggering the timelines in ORS
14.270.
Rather, a fair reading of the statutes indicates the
opposite. Under ORS 14.250, no judge shall sit to try any case
when it has been established that "any party or attorney
believes that such party or attorney cannot have a fair and
impartial trial or hearing before such judge." ORS 14.260
provides that "any party to or any attorney appearing in" any
case may establish that belief by motion and affidavit. In
addition, ORS 14.270, which sets out the timeline for motions
for removal of judges, is worded in the passive voice ("[a]n
affidavit and motion for change ofjudge* * *shall be made at
the time of the assignment"); it does not state that only the
lawyer may make such motions. Finally, the statutes apply
in civil cases as well as in criminal cases. As this court stated
in State ex rel Oliver v. Crookham, 302 Or 533, 539, 731 P2d
1018 (1987):
"The legislative policy stated in ORS 14.260 is to relieve a
party or attorney from having to proceed before a judge
when the party or attorney in good faith 'believes' that
either cannot have a fair or impartial hearing before that
judge. Proof that the belief is correct is not required; it is
enough that the attorney or party in good faith believes it."
That is, in ORS 14.250 to 14.270, the legislature has provided
parties and lawyers an opportunity, one that is not constitu-
tionally or otherwise required, to remove a judge for per-
sonal, but not necessarily legal, reasons. We think it follows
that it does not matter whether a party's lawyer was present
at the time of the assignment, or even if a party was repre-
sented by counsel. In either case, the motion to remove a
judge, or at least oral notice of intent to file such a motion,
of the assignment on the court's OJIN docket also triggered the timelines for recu-
sal motions under ORS 14.250 to 14.270.

State v. Pena
"shall be made at the time of the assignment." No such notice
or motion was timely made in this case.
Based on the foregoing, we think that it is clear from
the text of ORS 14.260 and ORS 14.270 that it is immaterial
for the purposes of those statutes whether defendant was
represented by his preferred lawyers (or any lawyer) at the
time when, after his December 28, 2007, indictment, he
learned of the assignment of this case to Fuchs. When the
identity of the judge assigned to his case was announced in
court at his arraignment on December 31, 2007, the statute
required that defendant speak up immediately, or at least
file an affidavit and motion to remove Fuchs by the close of
the next judicial day, which was January 2, 2008. Defendant
did neither, and the subsequent motion filed by counsel on
his behalf was untimely. 3
The alternative writ of mandamus is dismissed.
" We are aware that our reading of the statute as making individual parties,
whose legal counsel is absent (or nonexistent), responsible for giving a statutory
notice or suffering the loss of an important statutory right seems harsh. However,
the words of the statute compel that reading. It may be that the legislature
assumed that counsel would be present at the pivotal moment, but the words of the
statute do not contain that assumption explicitly, and do not require that counsel
be present. Although it is not required to do so, the legislature may wish to consider
whether it would be appropriate to bifurcate the statute's requirements, depending
on whether the underlying proceeding is civil or criminal.