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CHAPTER 15-12

CHANGE OF CIRCUIT JUDGE OR MAGISTRATE

15-12-1 to 15-12-18.      Superseded.
15-12-19      Settlement of record after resignation or expiration of term of judge.
15-12-20      Definition of terms.
15-12-21      Actions in which affidavits for change of judge may be filed.
15-12-21.1      Informal request for disqualification.
15-12-22      Who may file affidavit--Effect of filing.
15-12-23      Parties united in interest--Necessity of unity--Effect of one party filing.
15-12-24      Waiver of right by submitting to jurisdiction.
15-12-25      Restriction to one change--Other parties' rights preserved.
15-12-26      Form and content of affidavits.
15-12-27      Time for filing affidavit against judge or magistrate presiding in ordinary course.
15-12-28      Time for filing after unanticipated change of judge or magistrate.
15-12-29      Late appointment or employment of counsel--Extending time for filing.
15-12-30      Filing of affidavit-Number of copies-Statement by clerk of courts.
15-12-31      Copies of affidavit served on adverse parties--Liability for failure to serve.
15-12-32      Review of affidavit--Designation of substitute judge or magistrate.
15-12-33      Transmittal of copies of order to substitute judge or magistrate and counsel.
15-12-34      Disqualification of all judges in circuit--Certification to Supreme Court.
15-12-35      Assignment of substitute judge by Chief Justice.
15-12-36      Jurisdiction of substituted judge or magistrate.
15-12-37      Disqualification on court's own motion.


     15-12-1 to 15-12-18.   Superseded


     15-12-19.   Settlement of record after resignation or expiration of term of judge. The judge who presided at a trial may, after he ceases to be such judge by reason of his resignation or the expiration of his term of office, settle the record of such trial. If, before the settled record is completed, such judge is removed from office, or for any reason cannot or will not settle such record, it shall be settled in such manner as the presiding judge of the Supreme Court may direct.

Source: SDC 1939 & Supp 1960, § 33.1203.


     15-12-20.   Definition of terms. Terms, as used in §§ 15-12-20 to 15-12-37, inclusive, unless the context otherwise requires, mean:
             (1)      "Action," any action or special proceeding in the trial court, whether civil or criminal or quasi-criminal;
             (2)      "Canon" or "Canons," the canons set forth in the South Dakota Code of Judicial Conduct appearing as an appendix to chapter 16-2;
             (3)      "Judge," a judge of the circuit court or a retired justice or judge acting pursuant to appointment by the Chief Justice;
             (4)      "Magistrate," both magistrate judges and nonlaw-trained magistrates as defined by § 16-12A-1; and
             (5)      "Party," any party within the meaning of the rules of civil or criminal procedure and the statutes of this state.

Source: Supreme Court Rule No. 75-5, § 1.


     15-12-21.   Actions in which affidavits for change of judge may be filed. Unless the right is waived or is denied by this chapter, an affidavit for change of a judge or magistrate may be filed in any action pending in the court whether originating therein or pending upon appeal from an inferior court or tribunal to the circuit court. No affidavit for such change may be filed in a criminal action prior to the completion of the preliminary hearing or waiver thereof or in any proceeding for contempt committed in the presence of the court.

Source: SDC 1939 & Supp 1960, § 33.1208; SDCL § 15-12-5; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 2; SL 1980, ch 163, § 1; SL 2009, ch 99, § 1.


     15-12-21.1.   Informal request for disqualification. Prior to filing an affidavit for change of judge, the party or his attorney shall informally request the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, to disqualify himself. He shall not be required to state his reasons, but may if he desires. Informally shall mean by letter, oral communication, or dictating it into the record in open court or chambers; however, the opposing parties should receive copies of any letters, or be apprised of any communications to the court, but cannot contest the request. If the judge or magistrate grants the request, he shall forthwith notify the presiding judge, who shall assign the case to some other judge or magistrate. If the judge refuses the request, he shall forthwith notify in writing the parties or their attorneys. Writing may include a letter, order, or dictation into the record.

Source: Supreme Court Rule 82-23.


     15-12-22.   Who may file affidavit--Effect of filing. When entitled to do so, any party to an action, or his attorney of record, in any circuit or magistrate court may within the time prescribed by this chapter, file an affidavit as provided by this chapter seeking to disqualify the judge or magistrate who is to preside or is presiding in that action and when properly filed that named judge or magistrate shall proceed no further in said action and shall thereupon be disqualified as to any further acts with reference thereto unless otherwise ordered to proceed by the presiding judge of the circuit involved. However, any order or decree previously signed by such judge or magistrate shall remain in full force and effect, if filed, or becomes effective upon filing, unless thereafter vacated or reversed.

Source: SDC 1939 & Supp 1960, §§ 33.1208, 33.1209; SDCL, §§ 15-12-2, 15-12-11; Supreme Court Rule No. 75-5, § 3.


     15-12-23.   Parties united in interest--Necessity of unity--Effect of one party filing. All parties who are united in interest or representation must unite in the filing of an affidavit for change of judge or magistrate and the filing of such affidavit by one party is deemed to be filed by all of such parties.

Source: SDC 1939 & Supp 1960, § 33.1212; SDCL, § 15-12-3; Supreme Court Rule No. 75-5, § 4.


     15-12-24.   Waiver of right by submitting to jurisdiction. The submission to a judge or magistrate of argument or proof in support of a motion or application, or upon trial, is a waiver of the right thereafter to file an affidavit for change of such judge or magistrate by any party or his counsel who submitted the same or who after notice that such matter was to be presented, failed to appear at the hearing or trial. Such waiver shall continue until the final determination of the action and includes all subsequent motions, hearings, proceedings, trials, new trials, and all proceedings to enforce, amend, or vacate any order or judgment.

Source: SDC 1939 & Supp 1960, § 33.1210; SDCL, § 15-12-4; Supreme Court Rule No. 75-5, § 5.


     15-12-25.   Restriction to one change--Other parties' rights preserved. Not more than one change of judge or magistrate shall be granted on request and/or affidavit made by or on behalf of the same party or parties united in interest, but the filing of an affidavit and the first change of judge or magistrate shall not prevent any other party to the action or his attorney from availing himself thereafter under the provisions of §§ 15-12-20 to 15-12-37, inclusive.

Source: SDC 1939 & Supp 1960, § 33.1207; SDCL, § 15-12-17; Supreme Court Rule No. 75-5, § 6; Supreme Court Rule 82-23.


     15-12-26.   Form and content of affidavits. An affidavit for change of judge or magistrate shall state the title of the action and shall recite that the affidavit is made in good faith and not for the purpose of securing delay, that in the ordinary course of litigation such action or some issue therein is expected to come on for trial before such judge or magistrate sought to be disqualified; that the party making such affidavit has good reason to believe and does actually believe that such party cannot have a fair and impartial trial before the named judge or magistrate. Only one judge or magistrate shall be named in such affidavit. It shall not be necessary to state in such affidavit the ground or reason for such belief.

Source: SDC 1939 & Supp 1960, § 33.1208; SDCL, § 15-12-8; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 7.


     15-12-27.   Time for filing affidavit against judge or magistrate presiding in ordinary course. An affidavit for change of judge or magistrate, if against the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, must be filed within the following times:
             (1)      If there be any motion or application to be heard upon notice, the party resisting the same may file an affidavit not less than two days before the hearing; or if the matter is returnable in a shorter time, then before the commencement of such hearing;
             (2)      If there is no such motion or application:
             (a)      In actions triable without a jury, not less than five days before the date set for trial provided that if the time of trial has been set on less than five days notice, such affidavit shall be promptly filed thereafter and prior to the commencement of the trial;
             (b)      In actions triable by a jury at least fifteen days prior to the date said action is scheduled for trial; and
             (3)      If there has been a prior disqualification and substitution of a judge or magistrate a second or subsequent affidavit for change shall be filed with the clerk of courts of the county wherein such action is pending within two days after receiving notice of the name of the judge or magistrate designated to preside at the trial of said action in place of the judge or magistrate previously disqualified.

Source: SDC 1939 & Supp 1960, § 33.1211; SDCL § 15-12-6; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 8; SL 2009, ch 275 (Supreme Court Rule 08-05), eff. Nov. 1, 2008.


     15-12-28.   Time for filing after unanticipated change of judge or magistrate. If the affidavit for change is against a judge or magistrate who is to preside who was not regularly scheduled to do so, the provision of § 15-12-27 shall govern if there be sufficient time after the party has knowledge or notice of such change of judge or magistrate, and if there is not sufficient time, the request for disqualification and the affidavit may be filed promptly after such knowledge or notice, but must be filed prior to the time set for the trial of such action.

Source: SDC 1939 & Supp 1960, § 33.1211; SDCL, § 15-12-7; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 9; Supreme Court Rule 82-23.


     15-12-29.   Late appointment or employment of counsel--Extending time for filing. If counsel is appointed or retained after the time has passed for compliance with § 15-12-27, the request for disqualification and the affidavit must be promptly filed and the right to file shall be deemed waived if not filed within five days after counsel is so appointed or employed.

Source: Supreme Court Rule No. 75-5, § 10; Supreme Court Rule 82-23.


     15-12-30.   Filing of affidavit-Number of copies-Statement by clerk of courts. The affidavit for change of circuit judge or magistrate shall be filed with the clerk of the circuit court of the county in which the action is pending. Unless the presiding judge of the circuit court involved has otherwise provided by order or rule to the contrary, the clerk shall forthwith prepare and cause to be delivered to the presiding judge of his circuit a statement complying with subdivision 15-12-34(3) together with a copy of such affidavit. Such clerk shall also forthwith deliver a copy of such affidavit to the judge or magistrate referred to in said affidavit.

Source: SDC 1939 & Supp 1960, § 33.1208; SDCL § 15-12-9; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 11; SL 2015, ch 264 (Supreme Court Rule 15-02), eff. July 1, 2015.


     15-12-31.   Copies of affidavit served on adverse parties--Liability for failure to serve. On the same day that an affidavit for change of judge or magistrate is filed, the party by whom or on whose behalf it is so filed, or his attorney, shall serve a copy of such affidavit, either personally or by mailing, upon all adverse parties, or their attorneys of record. The failure to make such service shall not in any manner destroy the effect of such affidavit so filed, but the party on whose behalf it is filed shall reimburse the other parties to the action and their witnesses for expense incurred by reason of such failure, the amount thereof and the terms under which the same shall be paid to be fixed and imposed by the court upon hearing.

Source: Supreme Court Order No. 4, 1955; SDC Supp 1960, § 33.1208; SDCL, § 15-12-10; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 12.


     15-12-32.   Review of affidavit--Designation of substitute judge or magistrate. The presiding judge of the circuit court or in his absence or disqualification as the judge sought to be changed, the senior judge of the circuit shall review the affidavit and certification, if any, and it is determined that the affidavit is timely and that the right to file the affidavit has not been waived or is not otherwise legally defective, shall assign some other circuit judge or magistrate of that circuit as is appropriate to preside in such action, by filing an order of such appointment with the clerk of the court of the county wherein said action is pending. From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter.

Source: SDC 1939 & Supp 1960, § 33.1214; SDCL, § 15-12-14; Supreme Court Rule No. 75-5, § 13.


     15-12-33.   Transmittal of copies of order to substitute judge or magistrate and counsel. When an order appointing a substitute judge or magistrate has been filed with the clerk of the circuit court, that clerk shall notify the appointed judge or magistrate of his appointment by mailing or by personally delivering to him a certified copy of such order of appointment and a statement of the case if one has been prepared or requested by the said substitute, and shall mail a certified copy of such order of appointment to all parties or to their attorneys of record in the action involved.

Source: SDC 1939 & Supp 1960, § 33.1215; SDCL, § 15-12-15; Supreme Court Rule No. 75-5, § 14.


     15-12-34.   Disqualification of all judges in circuit--Certification to Supreme Court. In the event it shall be determined that all the judges of the circuit are disqualified or are unable to act in such action, the presiding judge of the circuit shall make and file in the office of the clerk of courts of the court involved an order to that effect. The clerk with whom such order is filed shall forthwith forward to the clerk of the Supreme Court the following:
             (1)      A certified copy of the affidavit for change of judge;
             (2)      A certified copy of the order of the presiding judge determining that all the judges of his circuit are disqualified or unable to act; and
             (3)      A signed statement in duplicate showing the title of the action, the name and address of each attorney of record therein, the date of filing of such affidavit, the general nature of the action and the status thereof.

Source: Supreme Court Rule No. 75-5, § 15.


     15-12-35.   Assignment of substitute judge by Chief Justice. Upon receipt of the matter required by § 15-12-34, the Chief Justice of the Supreme Court shall assign some other judge to preside in such action by filing an order with the clerk of the Supreme Court, and from the filing of such order the judge therein designated shall have full power, authority, and jurisdiction to proceed in said action. The clerk of the Supreme Court shall thereupon notify the appointed judge, the presiding judge of said circuit, the clerk of the trial court and all attorneys of record in said action of the judge so assigned, which notice may be given orally if the Chief Justice so directs. The clerk shall mail or deliver to the appointed judge the statement of the action as furnished by the clerk of the trial court.

Source: Supreme Court Rule No. 75-5, § 16.


     15-12-36.   Jurisdiction of substituted judge or magistrate. The judge or magistrate assigned to replace a disqualified judge or magistrate shall hear the action involved at the time set in any previous order, notice of any calendar assignment or at such other time as he may designate, to the end that the filing of such affidavit for change of judge or magistrate shall not result in any unnecessary delay.

Source: SDC 1939 & Supp 1960, § 33.1216; SDCL, § 15-12-16; Supreme Court Rule No. 75-5, § 17.


     15-12-37.   Disqualification on court's own motion. A judge or magistrate having knowledge of a ground for self-disqualification under the guidelines established by Canon 3C shall not, unless Canon 3D is utilized, await the filing of an affidavit but shall remove himself on written motion to be filed in duplicate by the judge or magistrate with the clerk of courts of the county wherein the action is pending. The clerk of courts shall notify the presiding judge, and the parties or their attorneys in the manner provided by this chapter for notification on filing of an affidavit for change of judge or magistrate.

Source: Supreme Court Rule No. 75-5, § 18.


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