When is a Party Not a Party? Joint Litigants and Judicial Strikes in Minnesota
Imagine you represent eight plaintiffs in a contract dispute filed in Minnesota’s 4th Judicial District, Hennepin County. You are assigned a judge who you believe will not be sympathetic to your clients’ case so you decide to strike him or her under Minnesota Rule of Civil Procedure 63.03. When the next judge is assigned to the case, you believe your clients will fare no better. How many judicial strikes are your eight clients allowed under Rule 63.03?
We have observed multiple parties (both defendants and plaintiffs), represented by the same attorneys with presumably the same interests in the outcome of a lawsuit, strike more than one judge. Rule 63.03, as currently drafted, can be read to allow each party to a lawsuit one judicial strike, no matter how that party’s interests are aligned with other parties in the case. According to this interpretation, in our hypothetical, each of the eight plaintiffs would be entitled one judicial strike. In Hennepin County, there are currently 18 judges assigned to the civil docket. The eight plaintiffs would be able to strike as many as eight of the 18 judges while seeking an assignment they consider favorable to their case.
Minnesota Rule of Civil Procedure 63.03 allows “any party or attorney” to file a notice to remove. The third paragraph of the rule limits a “party” to one strike as of right and requires that any subsequent efforts to strike be limited to those for cause.
There is no case law interpreting the meaning of the word “party” in Rule 63.03. There, however, is a Minnesota Supreme Court case addressing the general scope of the corollary rule under the Minnesota Rules of Criminal Procedure. In State v. Erickson, 589 N.W.2d 481 (Minn. 1999), a consolidated case, two criminal defendants challenged the Kandiyohi County Attorney’s use of Minnesota Rule of Criminal Procedure 26.03, subd. 14 (allowing parties one judicial strike) to strike a particular judge from almost every criminal case to which he was assigned for a period of more than three years. State v. Erickson, 589 N.W.2d 481 (Minn. 1999). The County Attorney’s Office began the practice of routinely striking the judge after it was dissatisfied with the judge’s credibility determination and subsequent ruling in a juvenile case. The Minnesota Supreme Court concluded that the County Attorney’s Office was abusing the rule and exercised its “inherent judicial power” to “suspend the exercise of [procedural] rules where appropriate to ensure the proper administration of justice.” Id. at 484. The court reinstated the judge who had been stricken and suspended the Kandiyohi County Attorney’s Office right to use Rule 26.03 for six months.
While the Erickson case suggests that Minnesota courts may exercise their inherent judicial power to curb what they view as abuse of Rule 63.03, the language of the rule does not address whether multiple parties represented by the same counsel (with presumably aligned interests in the case) may each exercise a strike or if such parties are collectively limited to a single strike. The purpose of the rule is to provide an opportunity for a party to strike a judge without explanation, much like the peremptory strike of a juror. Minn. Prac. and Proc. §63.03. A party seeking to strike an additional judge (or judges) is required to make an affirmative showing of prejudice. Minn. R. Civ. P. 63.03.
The word “party” in Rule 63.03 is ambiguous. In states with right-of-removal statutes similar to Minnesota’s, courts have adopted both broad and narrow interpretations of the word with corresponding effects on how the right of removal may be exercised in litigation involving multiple plaintiffs or defendants.
A Broad Reading
A broad reading of the term “party” would allow any person or entity taking part in a proceeding to strike a judge. This reading is supported by one of the two definitions of “party” supplied by Black’s Law Dictionary: “[a] person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually.” Black’s Law Dictionary 1122 (6th ed. 1990). Applying this reading to Rule 63.03, any individual party to a multiparty suit would be able to exercise a separate strike.
Illinois adopted this reading in a case interpreting its judicial removal procedure. The Illinois rule provides that “[e]ach party shall be entitled to one substitution of judge without cause as a matter of right.” Beahringer v. Hardee's Food Sys., Inc., 668 N.E.2d 614, 615 (Ill. App. 1996). In Beahringer v. Hardee’s Food Systems Inc., the plaintiff sued three individual defendants all represented by the same lawyer. Id. at 615. The first defendant was served before the other two, and tried to strike the judge, who refused on the grounds that all three defendants needed to be served and the three needed to file the motion to strike as a group. The court of appeals agreed with the defendant that it did not need to wait until other defendants had been served, reasoning that each individual has an absolute and individual right to strike, citing an earlier case on a so-called “change of venue” statute which was Illinois’ prior method for a party removing a judge as a matter of right. In this earlier case, the court stated in a conclusory fashion”[i]n Illinois, however, each individual defendant in a multidefendant case is deemed to be a separate party.” Boatman v. A.P. Green Refractories Co., 584 N.E.2d 1066, 1068 (Ill. App. 1991). The court considered the possibility that 19 defendants could strike all 19 judges available in that district, but found that to be no reason for not allowing each individual defendant the right to remove, stating that “the right of [removal as a matter of right] is absolute.” Id.
A Narrow Reading
Courts in other jurisdictions have adopted a narrow reading of the term “party” when interpreting their right-to-strike rules. These courts have construed the term to be similar to the word “side”—either the plaintiff’s or defendant’s side, no matter how many individual parties make up the side. This reading is supported by the second definition of “party” supplied by Black’s Law Dictionary: “those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons.” Black’s Law Dictionary 1122 (6th ed. 1990). The Supreme Court of Washington found this definition persuasive in its interpretation of Washington’s statute providing for judicial strikes (procedurally referred to an “affidavit of prejudice”). LaMon v. Butler, 770 P.2d 1027, 1032 (Wash. 1989). Washington’s affidavit of prejudice is, like the Minnesota right to remove, “a matter of right” and may be exercised once by “[a]ny party to or any attorney in any action or proceeding in a superior court.” Id. at 1031-32. Plaintiffs, a husband and wife, both tried to file affidavits of prejudice to strike two judges, arguing that they were both parties and thus should both have a right to file an affidavit of prejudice. The court disagreed, stating that if each coplaintiff or codefendant had the right, then “scores of judges could be disqualified in a single case,” and that that this absurd result could not have been intended by the legislature. Id. at 1033.
The Oregon Supreme Court similarly construed its state’s affidavit-of-prejudice statute which allowed “[a]ny party to or any attorney” to file an affidavit of prejudice. U'Ren v. Bagley, 245 P. 1074, 1076 (Or. 1926). That court stated: “[i]t is contended that, under this statute, if there be more than one plaintiff or defendant or attorney appearing in the cause, each may file two affidavits of prejudice, and, in certain cases, it would be possible to exhaust the entire number of circuit judges in the state, thereby operating as a denial of justice.” However, the court rejected this reading, stating that if there are coplaintiffs or codefendants, then they “constitute one, and but one, party to the proceeding.” The court said that this construction of the statute would “aid in the administration of justice.” Id.
A narrow reading of the term “party” yields its own potential problems. What about coplaintiffs or codefendants who are adverse to one another, and have different lawyers working to protect their unique interests from each other? If the term party is read narrowly, must these conjoined but adverse parties lose their right to removal? What if a codefendant is added later in the proceeding and is thus is not able to exercise its right of removal before the first hearing is held? Illinois adopted its broad reading in part in response to these concerns. Boatman, 584 N.E.2d at 1068-69.
The Montana courts’ interpretation of Montana’s right-to-remove rule addressed these concerns, allowing conjoined parties additional strikes upon a showing of adversity. Montana’s rule, however, is worded differently from those of Minnesota and the other states discussed so far, providing that “[e]ach adverse party is entitled to one substitution of a district judge.” Mont. Code. §3-1-804(1). In Goldman Sachs Grp., Inc. v. Montana Second Judicial Dist. Court, the court was called upon to interpret the meaning of the term “adverse party.” A codefendant argued that it was entitled to a judicial strike so long as it could establish that it was adverse to the plaintiff, not the other defendants. The plaintiff insisted that a codefendant would have to demonstrate hostility to other codefendants in order to be allowed an additional strike. Goldman Sachs Grp., Inc. v. Montana Second Judicial Dist. Court, 46 P.3d 606, 608 (Mont. 2002). The court agreed with plaintiff, holding that if a coplaintiff or codefendant wanted to exercise the right to substitute a judge, it must show adversity to each conjoined party who had already exercised the right of substitution. The court reasoned that its interpretation was correct because it did not “permit an endless string of substitutions.” Id. at 609.
The Minnesota rule, as currently drafted, is unclear, allowing either for abuse of the rule, or alternatively, causing court resources to be unnecessarily burdened by disputes over interpretation of the rule. Clarification of the meaning of the term “party” in Rule 63.03 would benefit both litigants and the judiciary.