                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


              GILBERT PROSECUTOR'S OFFICE, Petitioner,

                                    v.

  THE HONORABLE GEORGE FOSTER JR., Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
    MARICOPA; THE HONORABLE JOHN HUDSON, Judge of the
 GILBERT MUNICIPAL COURT, in and for the County of MARICOPA;
                     Respondent Judges,

               CHARLES P. BEATTY, Real Party in Interest.

                           No. 1 CA-SA 18-0074
                             FILED 6-7-2018


           Appeal from the Superior Court in Maricopa County
                      No. LC2018-000122-001 DT
                The Honorable George H. Foster, Judge;
                 Gilbert/Queen Creek Municipal Court
                           No. 2018-CT-2864
                 The Honorable John E. Hudson, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                COUNSEL

Town of Gilbert Prosecutor's Office, Gilbert
By Zachary Altman
Counsel for Petitioner

Kenneth S. Countryman, P.C., Tempe
By Kenneth S. Countryman
Counsel for Real Party in Interest
          GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                       Opinion of the Court



                                  OPINION

Judge James B. Morse Jr. delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.


M O R S E, Judge:

¶1             In this special action, Petitioner Gilbert Prosecutor's Office
asks us to reverse the decision of the Presiding Gilbert Municipal Court
Judge to hold an evidentiary hearing to consider whether a notice of change
of judge as a matter of right pursuant to Arizona Rule of Criminal
Procedure 10.21 was filed for an improper purpose. For the reasons set forth
below, we conclude that when a party timely files a notice of change of
judge as a matter of right under Rule 10.2(b), a court cannot inquire beyond
the required avowals into the reasons for the notice. Accordingly, we
accept special action jurisdiction, reverse the superior court, vacate the
evidentiary hearing, and remand to the Gilbert Municipal Court to reassign
this case to a new judge.

                     PROCEDURAL BACKGROUND

¶2            A Gilbert prosecutor filed a timely notice of change of judge
as a matter of right in the Gilbert Municipal Court pursuant to Rule 10.2.
The notice included the avowals required by Rule 10.2(b), but counsel for
the defendant objected, claimed that the notice was for an improper
purpose under Rule 10.2(b)(2), and requested a hearing. The originally-
assigned judge transferred the case to the presiding judge for a notice of
change of judge hearing. The prosecutor objected to a hearing and argued
that the notice should be automatically granted. Counsel for the defendant
argued that a hearing was proper to determine whether the notice was for
an improper purpose and requested discovery about the prosecutor's
history of notices. The presiding judge reviewed the parties' filings and set
the matter for an "evidentiary hearing" on the notice of change of judge.




1       Except where a prior year is noted in parentheticals, e.g., "(2000)," we
cite to the current version of the rule.


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          GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                       Opinion of the Court

¶3            Petitioner then sought special action review in the superior
court and requested a stay of the evidentiary hearing. The prosecutor again
argued that it was improper for the presiding judge to hold an evidentiary
hearing to determine whether the notice of change of judge as a matter of
right was filed for an improper purpose. The superior court accepted
jurisdiction but denied relief. The superior court reasoned that an
evidentiary hearing was appropriate because the defendant had objected
on the ground that the notice was made for an improper purpose under
Rule 10.2(b), and the rule "contemplates that the presiding judge should
make a determination on the matters of a claim under Rule 10.2 that a notice
was improper."

¶4             Petitioner then sought special action review in this court.

                               JURISDICTION

¶5              Special action jurisdiction is appropriate when a party lacks
"an equally plain, speedy, and adequate remedy by appeal," Ariz. R.P. Spec.
Act. 1(a), and "the case presents an issue of statewide importance and first
impression," Hamblen v. Hatch, 242 Ariz. 483, 486, ¶ 12 (2017). This case
presents issues of statewide importance and petitioner does not have an
adequate remedy by appeal. See State v. Ingram, 239 Ariz. 228, 232, ¶ 16
(App. 2016) (noting that "a challenge to the denial of a notice of peremptory
change of judge filed pursuant to Rule 10.2 must be brought by special
action"); see also State v. Kalauli, 243 Ariz. 521, ___, ¶¶ 4-5 (App. 2018) (noting
that while appellate jurisdiction may be unclear for a challenge of the denial
of a lower-court special action, this court may exercise special action
jurisdiction in such cases). Accordingly, we accept special action
jurisdiction.

                                 DISCUSSION

¶6            Petitioner argues that a court may not hold a hearing to
inquire into a party's reasons for requesting a change of judge as a matter
of right under Rule 10.2(a)(1). The defendant responds that a court may
inquire whether the assigned prosecutor is abusing the rule when
defendant objects to the change of judge. For the following reasons, we
agree with Petitioner, vacate the order setting an evidentiary hearing, and
remand for reassignment to a new judge.

¶7             "Each side in a criminal case is entitled to one change of judge
as a matter of right." Ariz. R. Crim. P. 10.2(a)(1). Historically, the procedure
under Rule 10.2 was "summary and automatic." State v. City Court of Tucson,
150 Ariz. 99, 102 (1986). Before 2001, a party to a criminal case could invoke


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          GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                       Opinion of the Court

that procedure simply by filing a "'Notice of Change of Judge' signed by
counsel, if any, stating the name of the judge to be changed." Ariz. R. Crim.
P. 10.2(b) (2000).

¶8           However, in 2001, the Arizona Supreme Court promulgated
"experimental" amendments to Rule 10.2. The amendments were intended
to address "abuse of this rule" and "ensure a party's right to have a matter
heard before a fair and impartial judge without the necessity of divulging
details that could cause needless embarrassment and antagonism or
showing actual bias which may be difficult to prove." Court Comment to
Experimental 2001 Amendments to Ariz. R. Crim. P. 10.2. These
amendments added the following requirement for a Notice of Change of
Judge:

      The notice shall also include an avowal that the request is
      made in good faith and not:

      1. For the purpose of delay;

      2. To obtain a severance;

      3. To interfere with the reasonable case management
         practices of a judge;

      4. To remove a judge for reasons of race, gender or religious
         affiliation;

      5. For the purpose of using the rule against a particular judge
         in a blanket fashion by a prosecuting agency, defender
         group or law firm ([City Court of Tucson, 150 Ariz. 99]);

      6. To obtain a more convenient geographical location; or

      7. To obtain advantage or avoid disadvantage in connection
         with a plea bargain or at sentencing, except as permitted
         under Rule 17.4(g).

      The avowal shall be made in the attorney's capacity as an
      officer of the court.




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          GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                       Opinion of the Court

Ariz. R. Crim. P. 10.2(b) (effective July 1, 2001 to June 30, 2002). The
pertinent provisions of the rule have been restyled, but remain the same in
all material respects today. See Ariz. R. Crim. P. 10.2(a)(1) and (b)(1).2

¶9            The question presented here is whether the 2001 and
subsequent changes to Rule 10.2 altered the pre-existing "summary and
automatic" nature of a notice of change of judge as a matter of right to allow
a court to inquire beyond the required avowals into whether a notice is filed
for a proper purpose. For the reasons that follow, the answer is no; the
"summary and automatic" nature of the rule is explicit and continues.

¶10           First, the text of the rule as it has existed since 2001 provides
no authority for a court to inquire into the reason for a notice of change of
judge. Instead, the rule provides that if a notice is timely filed and contains
the required avowals, "the judge should proceed no further in the action"
and "the presiding judge must immediately reassign the action to another
judge." Ariz. R. Crim. P. 10.2(b)(3) and 10.2(d)(2). Allowing either the
original judge or the presiding judge to do anything other than
"immediately" reassign the case is inconsistent with the rule's plain
language.

¶11            Second, in Bergeron ex rel. Perez v. O'Neil, 205 Ariz. 640, 647-
48, ¶ 21 (App. 2003), the court examined the "experimental" amendments to
Rule 10.2 and found that the trial court's inherent authority does not include
determining the propriety of reasons for a Rule 10.2 notice. As discussed
in Bergeron, the Arizona Supreme Court carefully crafted Rule 10.2 to avoid
judicial involvement in notices, leaving potential sanctions for professional
misconduct as the safeguard against misuse. See id. (noting "that the
supreme court received the benefit of extensive debate and thereafter so
carefully set forth the remedies for potential abuse of the rule . . ."). Thus, a
"lawyer who files a notice of change of judge in any of the circumstances
enumerated in § 10.2(b) has abused the rule and may face discipline for
violating the lawyer's professional responsibilities . . . ." Court Comment to
Experimental 2001 Amendments to Ariz. R. Crim. P. 10.2.

¶12           None of the changes to Rule 10.2 promulgated after Bergeron
suggest a different result. In enacting the 2004 Amendments to Rule 10.2,
the Arizona Supreme Court commented that the changes were intended to
preserve the historical benefits of the peremptory change of judge as a


2     The "experimental" amendment was extended four times through
September 30, 2004, then amended and adopted in final form effective
October 1, 2004. Rule 10.2 was further amended effective in 2011 and 2018.


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          GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                       Opinion of the Court

matter of right and keep courts out of evaluating the propriety of Rule 10.2
notices:

       Arizona's rule permitting peremptory change of judge has
       historically been viewed as "salutary" on the grounds that "it
       is not necessary to embarrass the judge by setting forth in
       detail the facts of bias, prejudice or interests . . . nor is it
       necessary for judge, litigant and attorney to involve
       themselves in an imbroglio which might result in everlasting
       bitterness on the part of the judge and the lawyer."

Court Comment to the 2004 Amendments to Ariz. R. Crim. P. 10.2 (quoting
Anonymous v. Superior Court, 14 Ariz. App. 502, 504 (1971)).

¶13           Our supreme court specified the intended interaction
between Rule 10.2 and the "amendments to ER 8.4, Rule 42, Rules of the
Supreme Court . . . to address abuse of Rule 10.2 while preserving the
traditional benefits of the right to peremptory change of judge." Id. The
corresponding amendments to the Arizona Rules of Professional Conduct
provide that "fil[ing] a notice of change of judge under Rule 10.2, Arizona
Rules of Criminal Procedure, for an improper purpose, such as obtaining a
trial delay or other circumstances enumerated in Rule 10.2(b)" is
"professional misconduct." Ariz. R. Sup. Ct. 42, ER 8.4(g). As with the Rules
of Criminal Procedure, the amendment to ER 8.4 was promulgated "to
address abuse of Rule 10.2 while preserving the traditional benefits of the
right to peremptory change of judge." Court Comment to 2004 Amendment
to ER 8.4.

¶14           Thus, if a party or a judge has reason to believe that the rule
is being abused, the remedy is to report the abuse to the State Bar. Bergeron,
205 Ariz. at 651-52, ¶35.3 Requiring a party to appear at an evidentiary
hearing and explain why she filed the notice eliminates the traditional
benefits of the peremptory change of judge, is not expressly or implicitly
contemplated by Rule 10.2, and violates the imperative of Rule 10.2(d)(2).
Accordingly, upon receipt of a timely and complete notice of change of


3      Additionally, in response to a petition by a presiding judge under
Arizona Rule of the Supreme Court 28, the Arizona Supreme Court has
suspended application of Rule 10.2 as to a prosecutor's office "on grounds
of abuse" of the rule. See Arizona Supreme Court Administrative Order No.
98-30 (June 26, 1998):
http://www.azcourts.gov/portals/22/admorder/orders99/pdf98/9830.pdf



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         GILBERT v. HON FOSTER/HON HUDSON/BEATTY
                      Opinion of the Court

judge of right, "the presiding judge must immediately reassign the action
to another judge." Ariz. R. Crim. P. 10.2(d)(2).

                              CONCLUSION

¶15            For the foregoing reasons, we accept special action
jurisdiction, reverse the decision of the superior court, vacate the hearing
set by the presiding judge, and remand with instructions to immediately
reassign the case to another judge.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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