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Gilbert Prosecutor's Office v. Foster

Court of Appeals of Arizona, First Division

June 7, 2018

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.

          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

          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

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

          OPINION

          MORSE, 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 10.2[1] 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.

         ¶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 ...


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