(dissenting).
I concur with the majority opinion except for that portion of the opinion which writes “good faith” completely out of SDCL 15-12-26. To sing an old song if the legislature wants to amend the statute by writing “good faith” out of the statute that is their prerogative and it is up to the legislature not the courts to do so. This old song should apply equally to this court-made rule.
The state’s attorney’s practice of filing blanket affidavits of prejudice against Judge Tice brings the question of “good faith” into play and allows the defense to move for dismissal for prosecutorial misconduct. The blanket filing of eighty-three affidavits of prejudice was in bad faith and therefore Judge Moses’ order reinstating Judge Tice should be affirmed.
The record clearly establishes sufficient bad faith on the part of State’s Attorney Groff:
1. He filed at least eighty-three affidavits for change of judge against Judge Tice.
2. Since about July 1986, State’s Attorney Groff adopted a systematic policy for the Pennington County State’s Attorney’s office whereby an affidavit of prejudice pursuant to SDCL Chapter 15-12 was filed against Judge Tice in every felony criminal case.
3. These affidavits were filed on all cases where Judge Tice was assigned to a criminal felony case after a preliminary hearing.
4. The filing of these affidavits increased the work load and created scheduling problems with respect to assigning new judges in the Seventh Circuit.
5. He filed these affidavits because he did not agree with Judge Tice’s handling of certain matters not connected with the trial process. He did not present any evidence that Judge Tice could not conduct a fair and impartial trial for the state of South Dakota. He was determined to continue to disqualify Judge Tice from every criminal felony case after preliminary hearing.
6. He was the only one who exercised the peremptory challenge for the office of the state’s attorney.
7. He made the decision in all cases and did not allow any of the deputy state’s *274attorneys to become involved in this decision-making process.
8. The deputy state’s attorneys were not allowed to exercise their independent judgment.
9. He did not examine each particular case with respect to the removal of Judge Tice and therefore there was no independent case-by-case analysis of the need to remove Judge Tice. Instead, he adopted an office policy of filing such an affidavit against Judge Tice in every felony criminal case no matter who the defendant may be, no matter what the charge might be, and regardless of the individual facts in the case.
10. The affidavits were routinely prepared by the secretaries in the state’s attorney’s office. Pre-printed forms were used which the secretary filled out in every felony criminal case to which Judge Tice had been appointed.
11. Judge Tice knew of no reason why State’s Attorney Groff filed affidavits of prejudice against him and had no knowledge of any grounds that would disqualify him under Canon 3C, or otherwise disqualify him from presiding over criminal felony cases, or Tapio or Brings Plenty’s cases.
12. The affidavits in Tapio and Brings Plenty’s cases were filed pursuant to this general office policy. State’s Attorney Groff knew of no specific matters of prejudice involving Tapio or Brings Plenty. These affidavits were based upon the same general office policy that he followed when he filed all other similar affidavits since July of 1986.
13. State’s Attorney Groff’s activity constitutes blanket challenges against Judge Tice.
Defense counsel persuasively argued that “Our rules are just fine” and that State’s Attorney Groff is simply abusing the rule. “The Rules of Civil Procedure (Rule 11) come with the territory” and this is the “first time” the rule was violated in South Dakota. Defense counsel further argued that this abuse was established before there was any inquiry, i.e., the gross abuse gave rise to the inquiry and “Our option is whether we allow the abuse to continue.” I would not allow this abuse to continue.
In summation, I submit that there is absolutely no need to change the rule set forth in SDCL 15-12-26. We simply need to enforce this “good faith” requirement of the rule and prevent “bad faith” abuses of same. Therefore, I respectfully dissent.