Dunn v. Superior Court

772 P.2d 1164, 160 Ariz. 311, 32 Ariz. Adv. Rep. 68, 1989 Ariz. App. LEXIS 113

• Court: Court of Appeals of Arizona
• Decided: April 20, 1989
• Docket: 1 CA-SA 88-275
• Status: Published

Opinions

OPINION

JACOBSON, Judge.

In this special action, petitioners seek review of an order entered by the civil presiding judge of the superior court dishonoring their notice of change of judge as untimely, and refusing to reassign their case for trial to the stipulated judge, as required by Rule 42(f), Arizona Rules of Civil Procedure. Extraordinary relief by special action is appropriate when a respondent judge is required to transfer a cause to another judge and fails to do so. See Helge v. Druke, 136 Arizi 434, 436, 666 P.2d 534, 536 (App.1983); Consolidated Carpet Corp. v. Superior Court, 13 Ariz. App. 429, 430, 477 P.2d 548, 549 (1970). In the exercise of our discretion, we therefore accept special action jurisdiction in this matter.

Background

Petitioners are plaintiffs, and real parties in interest are defendants, in the underlying personal injury suit in superior court. Trial in this matter had been set for January 9, 1989, before the Honorable Joseph D. Howe. The parties agree that, at a status conference on November 3, 1988, they discussed with Judge Howe the possibility of utilizing a settlement conference to dispose of this case. Judge Howe advised counsel that he could not act as both trial judge and settlement judge. Judge Howe asked if any party had a notice of change of judge remaining; when plaintiffs’ counsel indicated that he did, Judge Howe indicated that he would honor such a request. Judge Howe memorialized this conversation in his minute entry as follows: “He [plaintiffs’ counsel] asks if I am serious about honoring a notice of change of judge; I say yes, unless there is objection, in which case the matter comes back to me for decision, and if there is waiver the notice will be of no avail.”

A week later, on November 10, 1988, exactly sixty days prior to the scheduled trial date, the court and counsel met to further discuss the possibility of a settlement conference. Judge Howe’s minute entry for that date indicates the following discussion:

Court and Counsel meet, intending informally to discuss settlement formats. The following are considered:

1. A preliminary position statement by each party to be submitted to the others.

2. Conference attended by all parties personally ... to discuss settlement possibilities with this judge.

3. Same as # 2, except to a person other than the judge of this division.

4. A conference in which each party sets forth confidentially, to this judge or to another person, its position of maximum extension toward settlement. This format might include:

d. understanding that if the conference includes this judge, he may disqualify from hearing trial, with the possible concomitant resulting loss of the Jan. 9,1989, trial date; alternatively, the parties might agree in advance whether this judge should disqualify [himself].

On November 17, 1988, the parties stipulated that Judge Howe would be the settlement judge, and that in the event settlement failed Judge Nastro would be assigned as the trial judge. Judge Howe apparently rejected this stipulation.

The court and counsel met next on November 23, 1988; the parties agree that, at that time, forty-seven days before trial, Judge Howe again said that he would hon- or a change of judge if one were filed.

On December 1,1988, forty days prior to trial, plaintiffs’ counsel filed a notice of change of judge. That same day, the parties filed the following stipulation:

The parties to this action, pursuant to Rule 42(f) of the Arizona Rules of Civil Procedure, hereby stipulate that upon the plaintiffs’ exercise of their right to a change of judge, the action shall be re-assigned and transferred to the Honorable Daniel E. Nastro, who has advised all counsel that he is willing to have this action assigned to him, pursuant to Rule 42(f)(1)(F) of the Arizona Rules of Civil Procedure.

Judge Howe, on December 1, 1988, acknowledged by minute entry that a notice of change of judge had been filed by plaintiffs, and ordered the case transferred to the civil presiding judge for reassignment to another division.

The following day, the Honorable Frederick J. Martone, who was then civil presiding judge of the Maricopa County Superior Court, entered his order dishonoring plaintiffs’ notice of change of judge as untimely, and transferred the case back to Judge Howe for trial.

Petitioners filed this special action, seeking relief from Judge Martone’s refusal to honor both their notice of change of judge and their stipulation to reassign the case to Judge Nastro.

Appearance by Respondent Judge

Real parties in interest Samaritan Health Service and Anca Maras, M.D., have joined in petitioners’ contentions that Judge Mar-tone exceeded his authority as civil presiding judge by refusing to honor plaintiffs’ notice of change of judge and the parties’ stipulation to an assigned judge. The adverse parties in the underlying action therefore are in agreement that special action jurisdiction is appropriate and that relief should be granted. The only opposition to the petition is a letter from Judge Mar-tone, mailed to this court on January 6, 1989, seven days beyond the allowable response time. Petitioners have requested in their reply that Judge Martone’s response be stricken.

The Arizona Supreme Court has held that a respondent judge has the right to appear and defend in a special action in which he is named. Fenton v. Howard, 118 Ariz. 119, 575 P.2d 318 (1978). This precedent has been criticized as creating the potential of allowing “the impartial dispenser of justice” to take an adversarial role in the action, when he should have no ■interest in the outcome of the litigation. State ex rel. Dean v. City Court, 123 Ariz. 189, 191, 598 P.2d 1008, 1010 (App.1979).

We do not believe that the appearance of Judge Martone in this case is subject to such criticism. We are informed that Judge Martone’s order determining anew the issue of timeliness and refusing to hon- or the trial judge’s acceptance of change of judge is in conformity with existing policies of the Maricopa County Superior Court. Hence, if we decide that the challenged order was made without authority, the daily administrative policies of the civil presiding judge in reviewing notices of change of judge and in assigning cases could be affected. Under these circumstances, the respondent judge has a legitimate administrative interest in appearing and defending those administrative policies. He is properly before this court as an advocate. Cf. Evertsen v. Industrial Comm’n, 117 Ariz. 378, 382, 573 P.2d 69, 73 (App.1977) (authority of Industrial Commission, as neutral arbiter of the claim, to appear and defend its decision before the court of appeals, is proper when appearance involves the interest of the Commission in carrying out its procedures). We note that civil presiding judges previously have filed responses in special actions seeking clarification from this court on similar procedural matters. See, e.g., Guberman v. Chatwin, 19 Ariz.App. 590, 509 P.2d 721 (1973) (civil presiding judge responded to advise the court about his uniform practice in handling notices of change of judge). We therefore have considered Judge Martone’s letter in reaching a decision in this matter. Moreover, although Judge Martone’s letter was untimely filed as a response, this court may, in the furtherance of justice, suspend that time requirement and proceed as if the response was timely filed. See Rule 3, Arizona Rules of Civil Appellate Procedure. We have afforded petitioners the opportunity to respond to Judge Martone’s letter to this court, to avoid any prejudice.

Notice of Change of Judge

Rule 42(f), Arizona Rules of Civil Procedure, provides in relevant part:

1. Change as a matter of right.

A. Nature of proceedings. In any action pending'in superior court, each side is entitled as a matter of right to a change of one judge____ A party wishing to exercise his right to change of judge shall file a “Notice of Change of Judge.” ...

C. Time. Failure to file a timely notice precludes change of judge as a matter of right. A notice is timely filed if filed sixty (60) or more days before the date set for trial____

In this case, Judge Howe honored petitioners’ notice of change of judge by issuing the following order on December 1, 1988:

A Notice of Change of Judge having been filed by Plaintiff,

IT IS ORDERED transferring the above-entitled cause to the Civil Presiding Judge for reassignment to another Division.

For whatever reasons, which may have included the fact that he had previously assured the parties less than sixty days prior to trial that he would honor such a notice, Judge Howe did not dishonor the notice as untimely, nor was the notice challenged by any of the opposing parties as untimely. Rather, the civil presiding judge apparently decided to raise the timeliness issue on his own motion, as reflected in Judge Mar-tone’s order of December 2, 1988:

The court has before it Judge Howe’s minute order of December 1, 1988 transferring this action to us for reassignment. However, a review of the file indicates that plaintiff’s notice of change of judge was submitted on December 1, 1988. The trial in this action is set for January 9, 1989. Under Rule 42(f)(1)(C), Ariz.R.Civ.P., a notice is timely if filed sixty or more days before the date set for trial and failure to file a timely notice precludes change of judge as a matter of right. Since plaintiff’s notice of change of judge as to Judge Howe is untimely, it is dishonored, and this action is transferred back to the Honorable Joseph D. Howe.

Petitioners argue that the civil presiding judge exceeded his authority by dishonoring the notice, thereby in effect overruling Judge Howe’s order honoring the notice. They contend that Judge Martone’s administrative role as presiding civil judge limits his discretion to honoring Judge Howe’s transfer and reassigning the case. We agree.

Under Rule 42(f), as well as under the prior statutory method of securing a change of judge by filing an affidavit pursuant to former A.R.S. § 12-409, the ruling on the timeliness of the notice of change of judge is to be made by the trial judge to be disqualified rather than by the civil presiding judge. Guberman v. Chatwin, 19 Ariz.App. at 593, 509 P.2d. at 724 (Rule 42(f)); Hendrickson v. Superior Court, 85 Ariz. 10, 330 P.2d 507 (1958) (A.R.S. § 12-409). In Guberman, the respondent presiding judge advised the court “that it is his uniform practice to permit the judge in relation to whom a notice of change of judge has been presented to rule upon the timeliness of his motion ... [pursuant to] Rule 42(f).” The Guberman court approved of this practice, reasoning that the trial judge is best qualified to decide timeliness and waiver issues under Rule 42(f). 19 Ariz.App. at 593, 509 P.2d at 724.

In our opinion, a civil presiding judge does not obtain additional judicial authority to overrule a trial judge’s decision by nature of his administrative powers. See Fraternal Order of Police, Lodge 2 v. Superior Court, 122 Ariz. 563, 565, 596 P.2d 701, 703 (1979) (superior court judge has no jurisdiction to review or change previous ruling of another superior court judge). The presiding judge is “responsible for the day-to-day administrative operation of the court.” Rule 1.3, Local Rules, Maricopa County Superior Court. This responsibility includes the authority to make permanent assignment of a case to one judge. Rule VII, Uniform Rules of Practice for the Superior Court. However, the assignment authority of the presiding judge does not include the power to exercise a “horizontal appeal” and overrule a fellow judge on decisions of substance such as the timeliness of a change of judge. See Rule 42(f), Arizona Rules of Civil Procedure; Rule 2.7, Local Rules, Maricopa County Superior Court. We have previously tried to avoid such “horizontal appeals” so that the same motion cannot be brought in front of different superior court judges. Mozes v. Daru, 4 Ariz.App. 385, 420 P.2d 957 (1966).

At this point it is appropriate to comment on the position taken by the dissent both as to the facts and the law. First, the dissent appears to glean from the record that the motive of the parties in seeking a change of judge in this matter was simply a subterfuge to obtain a continuance of a trial date for which they were not prepared. While admittedly, abuses of Rule 42(f) occur for this purpose, there is no evidence of any such motive in this case and its existence is based solely on supposition. Nor is there any indication that the facts presented by the parties are incorrect. The letter of Judge Martone does not suggest otherwise.

Second, the dissent treats the question of whether the notice of the change of judge was timely as simply a matter of counting days, a ministerial calendaring function. As previously pointed out, Judge Howe could have properly determined that his previous order had lulled counsel into believing that a notice of change of judge would be honored even though technically untimely. This is exactly how Judge Howe properly resolved this factual issue, by accepting the change of judge. See Hendrickson v. Superior Court, supra, (notice may be timely even though filed after the expiration of time to file has expired, if facts giving rise to the notice were acquired after expiration of normal time period.) The dissent’s assertion that Judge Howe lacks judicial authority to make this determination is without support. Thus, one person’s “ministerial calendaring function” becomes another person’s “horizontal appeal.”

This brings us to the main point of divergence between the majority and dissent. The dissent takes the position that, even in the absence of additional facts, one superi- or court judge may overrule another superior court judge on the same issue in the same case. In doing so it relies upon language in Hendrickson that timeliness of a notice of change of judge “must be determined by the Judge presiding,” and two Division Two court of appeals decisions rendered in 1966 and 1969 respectively.

As to the Hendrickson language, it is clear that “judge presiding” does not refer to the presiding judge of a multi-judge county but to the judge presiding over the matter in the first instance. This is so, for the order being reviewed in Hendrickson was from Cochise County which in 1958 had only one judge.

Whatever may have been the force of the court of appeals decisions, the latest pronouncement on this subject is from the Arizona Supreme Court in Fraternal Order of Police v. Superior Court, 122 Ariz. 563, 596 P.2d 701 (1979) which stated:

The petitioner contends that the respondent judge had no jurisdiction to issue an injunction forbidding the holding of an election for determination of an employee bargaining representative. Any action taken by the respondent judge would be in conflict with the previous rulings of Judge LaPrade. We agree.

The respondent judge, in effect, was acting as a reviewing court of a judge on the same court. He had no jurisdiction to review or change the judgment of a judge with identical jurisdiction.

Id. at 565, 596 P.2d 701 (emphasis added).

We therefore hold that Judge Martone abused his discretion and acted in excess of his authority in dishonoring the notice of change of judge as untimely filed. In his administrative capacity as presiding judge, he was required to reassign the case upon transfer from the trial judge. We therefore vacate his order reassigning the case to Judge Howe.

Stipulation to Assigned Judge

Petitioners next argue that Judge Mar-tone also exceeded his authority in refusing to assign the case to Judge Nastro as the stipulated trial judge as required by Rule 42(f)(1)(F). While we agree that Judge Martone had no discretion in the matter, this issue must be remanded for an evidentiary hearing to determine whether Judge Nastro has indicated his willingness and availability as the assigned judge.

Rule 42(f)(1)(F) provides:

Assignment of action. At the time of the filing of a notice of change of judge, the parties shall inform the court in writing if they have agreed upon a judge who is available and is willing to have the action assigned to him. An agreement of all parties upon such judge shall be honored and shall preclude further changes of judge as a matter of right unless the judge agreed upon becomes unavailable____

Our supreme court has held that the “clear and unambiguous” language of this rule is mandatory, and that once such a stipulation has been filed, a presiding judge “has no discretion but to honor it.” City of Tucson v. Birdsall, 109 Ariz. 581, 582, 514 P.2d 714, 715 (1973).

Because the presiding judge had no authority to dishonor the notice of change of judge, his administrative authority upon receiving the stipulation was limited to reassigning the case to Judge Nastro in accordance with the stipulation. His reassignment of the case to Judge Howe was an abuse of discretion for failure to honor the stipulation.

In City of Tucson v. Birdsall, the supreme court remedied a similar problem by ordering the presiding judge to reassign the matter to the stipulated trial judge pursuant to Rule 42(f)(1)(F). In that case, the court had before it in the record a signed and filed consent by the stipulated judge, indicating his availability and willingness to be assigned the case. However, in this case we find a factual conflict existing in the limited record on review as to Judge Nastro’s availability and willingness to be assigned this case.

We have before us several affidavits of counsel, attesting that Judge Nastro initially agreed to accept the matter for trial prior to the stipulation of all counsel, and has reconfirmed his willingness to act as trial judge even after the filing of this special action. On the other hand, Judge Martone has indicated to this court that after he consulted with Judges Howe and Nastro about the factual assertions the parties raised regarding this matter, he concluded that this action is based “upon either erroneous factual assertions or misunderstandings.” Judge Martone's conclusion is that Judge Howe agreed to be the trial judge and Judge Nastro agreed to be the settlement judge, not the other way around. Additionally, Judge Martone informs us that, since this action was filed, Judge Howe has indicated that he would disqualify himself as trial judge, “based on the assertions made in the petition for special action.” Finally, Judge Martone advises us of the following policy in Maricopa County Superior Court:

If Judge Howe disqualifies himself, Judge Schneider [the current presiding judge] would then reassign the action to some other judge in the Civil Department on a random basis. The members of the Civil Department have been encouraged not to indicate their ability and willingness to accept a case on a notice within the meaning of Rule 42(f)(1)(F), Ariz.R. Civ.P., in order to discourage forum shopping.

The “encouragement” referred to by Judge Martone is obviously intended to circumvent the workings of a mandatory procedural rule. However, even in the absence of such a policy we recognize that a factual conflict exists on the record presented to us. We cannot determine, on this record, if Judge Nastro actually indicated that he “is available and is willing to have the action assigned to him,” in accordance with Rule 42(f)(1)(F). We therefore must remand this matter for an evidentiary hearing to determine this issue.

If Judge Nastro indicates that the assertions of his availability and willingness contained in the stipulation are true, then the presiding judge has no discretion but to assign the case to Judge Nastro. If Judge Nastro indicates that he is not either available or willing to have the action assigned to him, the presiding judge múst assign the case according to the provisions of Rule 42(f)(1)(F) regarding unavailability of the stipulated judge:

If a judge to whom an action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other legal incapacity, the parties shall be restored to their several positions and rights under this rule as they existed immediately before the assignment of the action to such judge.

As a final matter, we note that our disposition here may affect the internal policies and administrative practices now utilized in the Maricopa County Superior Court. We recognize, as did the supreme court in City of Tucson v. Birdsall and the dissent here, the practical problems in docketing and budgeting that may be inherent in allowing parties to stipulate to a desired trial judge, especially in complex litigation. However, we are, as was the supreme court, “constrained to hold that the Rule is clear and unambiguous.” Birdsall, 109 Ariz. at 582, 514 P.2d at 714. If the rule is unworkable and plays havoc with the superior court’s administrative system, the remedy is to seek a rule change, not to develop administrative practices and policies which circumvent the rule.

Based on the foregoing, we grant special action relief and vacate the presiding judge’s order reassigning the case to Judge Howe. We remand this matter to superior court for further proceedings consistent with this opinion. The stay previously entered in this matter is dissolved.

BROOKS, J., concurs.