Opinion
No. 5171.
September 12, 1980.
Petition for review from the Superior Court, Third Judicial District, Victor D. Carlson, J.
Lester W. Miller, Jr., Anchorage, for petitioner.
OPINION
Gary Archer has brought this petition for review from Judge Victor D. Carlson's denial of a notice of change of judge (peremptory challenge) which was filed against Judge James K. Singleton.
The case was initially assigned to Judge Singleton for motion purposes only. Then, on January 28, 1980, the matter was assigned to Judge Singleton for all purposes including trial. One day later, Archer filed a notice of change of judge. Subsequently, then acting presiding Judge Victor D. Carlson of the Superior Court, Third Judicial District, denied the notice of change of judge on the ground that "the parties have participated in proceedings before the Honorable James K. Singleton concerning the merits of the action."
Alaska R.Civ.P. 42(c)(4)(i) provides:
(4) Waiver. A party waives his right to change a particular judge as a matter of right when he knowingly participates before that judge in:
(i) Any judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits; . . .
Archer does not contest that matters involving the merits were heard by Judge Singleton. Rather, he takes the position that this fact alone does not constitute a knowing waiver of his right to challenge Judge Singleton because at the time these proceedings were held he had not been advised that the trial of the case was assigned to Judge Singleton. In Tunley v. Municipality of Anchorage School District, ___ P.2d ___, at ___, Op. No. 2160 at 12 (Alaska, Sept. 12, 1980), we held that a waiver under Alaska Civil Rule 42(c)(4)(i) can be found "only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial."
On the basis of Tunley, the superior court's denial of Archer's notice of change of judge is Reversed.
CONNOR, J., not participating.