(concurring specially).
I agree that the trial court, acting pursuant to this court’s denial of prohibition, had jurisdiction to try this case. Absent a showing of judicial prejudice on the record, and there is no such showing here, reversal on this ground is unwarranted. I must express a deep concern, however, if, in this and other criminal cases, a defendant’s longstanding right under Minn.Stat. § 542.-16 (1982) to the removal of one judge is held to be of no avail if that defendant has been granted a change of venue. I do not believe it was the intent of the committee that drafted the Rules of Criminal Procedure or of this court in promulgating those rules to force a criminal defendant to choose between an impartial jury and an impartial judge.1 Such a choice is inimical to our concept of justice and fundamental fairness.
We have long endeavored to eliminate bias as a factor in the trial of criminal cases. We have erected strong safeguards, by statute, by case law or by court rule, against two distinct forms of bias, community bias and judicial bias. To eliminate community bias and insure a fair and impartial jury, we have found it necessary in appropriate cases to allow a change of venue, which is a transfer of the case to another county. Rule 24.03, Minn.R. Crim.P., so provides, and this case was so transferred. To eliminate perceived judicial bias, the legislature, by Laws 1895, c. 306, entitled “An act to enable parties to actions in the district court in this state to secure an impartial judge to hear and preside at the trial of said actions,” provided that a defendant in a criminal case would get one change of judge as a matter of right. State v. Gardner, 88 Minn. 130, 92 N.W. 529 (1902). As the law has developed, the defendant and the state may remove one judge each without showing a bias or prejudice simply by filing a timely notice.2 Minn.Stat. § 542.16; State v. Kraska, 294 Minn. 540, 201 N.W.2d 742 (1972). Notice for the defendant must be filed with the clerk of court not less than 2 days before the date set for trial. Id.
The date for trial in this case was set for October 26, 1981. Appellant filed his notice of removal on October 21, 1981, then sought a writ of prohibition in this court when the motion for removal was denied. We denied the writ peremptorily on October 23, 1981. We should, I believe, in light of longstanding legislative policy and our own cases, grant such a writ except where the notice of removal has been untimely filed. The defendant does have the option of filing the statutory notice of removal after a judge has been assigned to hear a motion for a change of venue but before that motion has been heard. Nevertheless, it is of utmost and continuing importance that our judicial system both provide, and be perceived as providing, fair and impartial justice for all.
. As appellant points out, the order of this court promulgating the Rules of Criminal Procedure does not list, as it is required to do by Minn. Stat. § 480.059, subd. 7 (1982), Rule 24.03, subd. 4, as conflicting with, modifying or superseding section 542.16. It is interesting to note also that, while the right of a party to a civil suit to remove one judge as a matter of right is protected by Minn.R.Civ.P. 63.03, the criminal rules neither protect the right which is provided by statute nor mention in the Comments to Rule 24.03, subd. 4, that they have in some cases removed that right.
. A party must make an affirmative showing of prejudice for a subsequent disqualification. Minn.Stat. § 542.16, subd. 2 (1982).