This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

 IN COURT OF APPEALS

C8-01-1346

 

Robert James Lanners, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed January 29, 2002

Reversed and remanded

Peterson, Judge

Morrison County District Court

File No. C00185

 

Michael L. Samuelson, 925 South First Street, P.O. Box 1735, St. Cloud, MN  56302 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103  (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

            In this appeal from an order sustaining his driver’s license revocation under the implied consent law, appellant Robert James Lanners argues that the district court failed to honor a properly served and filed notice of removal.  We reverse and remand.

FACTS

Appellant Robert James Lanners’ driver’s license was revoked for driving under the influence and Lanners filed a petition for judicial review of the revocation.  Lanners received notice that a hearing on the petition would be held on May 8, 2001.  The notice identified the judge who would preside over the hearing.  Approximately 20 minutes before the scheduled hearing, the deputy court administrator notified Lanners that a different judge would be presiding. 

Lanners’ counsel immediately prepared, served, and filed a notice to remove the second judge pursuant to Minn. R. Civ. P. 63.03.  At the commencement of the hearing, the judge denied the demand for removal.  Following the hearing, the court sustained the revocation of Lanners’ driving privileges. 

D E C I S I O N

Minn. R. Civ. P. 63.03. states:

            Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove.  The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.

 

* * *

 

            After a party has once disqualified a presiding judge or judicial officer as a matter of right, that party may disqualify the substitute judge or judicial officer, but only by making an affirmative showing of prejudice.  * * *

 

Upon the filing of a notice to remove or if a litigant makes an affirmative showing of prejudice against a substitute judge or judicial officer, the chief judge of the judicial district shall assign any other judge of any court within the district, or a judicial officer in the case of a substitute judicial officer, to hear the case.

 

Whether a removal notice complies with Minn. R. Civ. P. 63.03 is a question of law, which this court reviews de novo.  Citizens State Bank v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991).  “Minn. R. Civ. P. 63.03 mandates case reassignment when a removal notice is filed in compliance with the rule’s requirements.”  Id.  Failure to honor a proper notice is reversible error requiring a new hearing.  Id. 

Twenty minutes before the scheduled hearing on Lanners’ petition, Lanners received notice that the judge originally assigned to preside at the hearing would not be presiding and that a different judge would preside.  Lanners’ counsel immediately prepared, served, and filed a notice to remove the newly assigned judge.  The newly assigned judge confirmed that Lanners’ notice to remove complied with rule 63.03 but rejected the request for removal. 

Respondent Commissioner of Public Safety does not dispute that Lanners’ notice to remove was proper and timely; respondent argues that the district court properly used its discretion to deny removal.  But the rule does not allow for judicial discretion.  Under rule 63.03, the notice to remove is similar to a peremptory challenge of the assigned presiding judge.  2A David F. Herr & Roger S. Haydock, Minnesota Practice § 63.12 (1998).  Timely service and filing operate to automatically remove a judge.  Peterson v. Bartels, 284 Minn. 463, 466 170 N.W.2d 572, 574 (1969).

Citing State v. Erickson, 589 N.W.2d 481 (Minn. 1999), respondent argues that the right to obtain removal by properly filing and serving a notice to remove is not absolute. In Erickson, a county attorney filed a notice to remove a specific judge nearly every time a criminal case was assigned to that judge.  Id. at 482-83.  The supreme court concluded that the county attorney’s excessive use of the court rule allowing removal of judges was prejudicial to the administration of justice and suspended for six months the county attorney’s privilege of using the removal rule.  Id. at 485.  But Erickson addressed Minn. R. Crim. P. 26.03, subd. 13(4), and it does not apply to a civil case. 

Furthermore, although the judge in the present case stated that Lanners’ attorney had been warned that requests for removal on master calendar items would not be honored, there is no evidence in the record that indicates that the attorney had made excessive use of rule 63.03.  The decision in Erickson was based on excessive use of the privilege of removing assigned judges.  Id.

Although we recognize that permitting automatic removal of an assigned judge can present a significant administrative problem in a county with few judges, Minn. R. Civ. P. 63.03 provides an automatic right to removal if a notice to remove is properly served and filed.  Therefore, the judge assigned to preside over the license-revocation hearing erred by refusing to honor Lanners’ notice to remove, and we must reverse the order sustaining the license revocation and remand for a new hearing.

Reversed and remanded.