Mervyn's v. Superior Court

879 P.2d 367, 179 Ariz. 359, 171 Ariz. Adv. Rep. 36, 1994 Ariz. App. LEXIS 168
CourtCourt of Appeals of Arizona
DecidedAugust 16, 1994
DocketNos. 1 CA-SA 94-0081, 1 CA-SA 94-0082 and 1 CA-SA 94-0083
StatusPublished
Cited by1 cases

This text of 879 P.2d 367 (Mervyn's v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mervyn's v. Superior Court, 879 P.2d 367, 179 Ariz. 359, 171 Ariz. Adv. Rep. 36, 1994 Ariz. App. LEXIS 168 (Ark. Ct. App. 1994).

Opinion

OPINION

GRANT, Presiding Judge.

These three special actions were filed and considered by this court on the same date. On April 18,1994, we issued an order accepting jurisdiction of the special actions and denying relief. The order stated that an [360]*360.opinion would be issued in due course. This is that opinion.

In these special actions we are asked to decide a question of first impression: whether a taxpayer has a peremptory right to a change of judge in the Arizona Tax Court and whether a hearing must be held when an affidavit of bias and prejudice is filed against the Tax Court Judge. Since the facts and issues in all three cases are essentially the same, we have consolidated them for purposes of this opinion only,

FACTS AND PROCEDURAL HISTORY

The petitioners’ cases in the Arizona Tax Court concern the validity of property taxes on possessory (leasehold) interests of Indian land. The taxes have been paid, and the petitioners are seeking refunds on the theory that the tax is invalid. On February 10, 1994, petitioners filed affidavits of grounds for change of judge, pursuant to Ariz.Rev. StatAnn. (“AR.S.”) section 12-409.' Each affidavit was signed by the party, not by counsel, and stated that the party believes that Judge William J. Schafer, III, the assigned Tax Court Judge, would not be a fair judge based on statements made by the judge in rulings in other cases similar to the petitioners’ cases. The affidavits state that because of judicial decisions Judge Schafer made in two other tax cases with the same or similar issues, he would be prejudiced in the three instant cases. Prior to the filing of these affidavits for change of judge, Judge Schafer had made no rulings nor entered any orders in the petitioners’ cases. The affidavits were filed after the defendant Maricopa County’s Answer and standard discovery requests. The timeliness of the affidavits is not in question.

On February 14, 1994, Respondent Judge C. Kimball Rose as the Presiding Judge of the Superior Court, entered an order denying the change of judge requested by petitioners. The Respondent Judge based his decision on the concept that the “bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source and not from what the judge has done in his participation in the case” (citing Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (1977)).

ISSUES

1. Is there a right to a peremptory change of judge in the Tax Court?

2. Was the decision of the Respondent Judge denying a timely filed affidavit of grounds for change of the Tax Court Judge, pursuant to AR.S. section 12-409, arbitrary, capricious, and an abuse of discretion?

DISCUSSION

Effective September 30, 1988, the Arizona Legislature created the Tax Court by adding Article 4, titled “Tax Court,” to Title 12, “Courts and Civil Proceedings,” of the Arizona Revised Statutes. This legislation created a special “department” of the Maricopa County Superior Court for the assignment of all tax disputes. AR.S. § 12-163(A). AR.S. section 12-164(A) provides that a superior court judge shall be assigned to the Tax Court by the presiding judge of Maricopa County Superior Court. In addition to having the qualifications prescribed by law for a superior court judge, the judge of the Tax Court is required to demonstrate a willingness to specialize in tax cases and a willingness to serve as a tax judge for at least two years. AR.S. § 12-164(B). The statute providing for a change of judge in the Tax Court, AR.S. section 12-165, states that a change shall be granted only for cause as required by AR.S. section 12-409, which states in relevant part:

A If either party to a civil action in a superior court files an affidavit alleging any of the grounds specified in subsection B, the judge shall at once transfer the action to another division of the court if there is more than one division, or shall request a judge of the superior court of another county to preside at the trial of the action.
B. Grounds which may be alleged as provided in subsection A for change of judge are:
[361]*3615. That the party filing the affidavit has cause to believe and does believe that on account of bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial.

The Tax Court Rules are silent concerning change of judge. Arizona Rules of Civil Procedure Rule 42(f)(1)(A), allows change of judge as a matter of right for any action in superior court “except an action in Arizona Tax Court____” This is consistent with the Tax Court Act, AR.S. section 12-165. The procedure for change of judge based on cause, pursuant to AR.S. section 12-409, is set out in Rule 42(f)(2). That procedure was followed in this case because the decision on the request for change of judge was made herein by the presiding judge, not the assigned judge. The decision by the presiding judge did not occur after a hearing because the presiding judge ruled that the affidavits were not sufficient on their face to warrant a hearing.

Petitioners argue that in the absence of clear procedural rules for the Tax Court, the automatic change of judge provisions of AR.S. section 12-409 apply. Lewis v. Kelliher, 171 Ariz. 228, 829 P.2d 1274 (App.1992) (holding that the requirements of section 12-409 apply to juvenile court proceedings). The Lewis case arises from the juvenile court, and the Rules of Procedure for the Juvenile Court like the Tax Courts do not expressly provide for a peremptory change of judge. The Lewis court reversed a denial of the requested change, holding that the plaintiff was entitled to a change of judge under AR.S. section 12-409. Lewis is not controlling here, however, because AR.S. section 12-165(c) specifically requires that a change of judge in the Tax Court be granted “only for cause.”

The petitioners argue that they possess a peremptory right to a change of judge once an affidavit of bias and prejudice is filed. We do not agree. Since there is by statute, only one Tax Court Judge in the state, and the statute provides that the judge can be challenged only for cause, we agree with the trial court that there is no right to a peremptory change of the Tax Court Judge. A.R.S. § 12-165.

Since there is no right to a peremptory change of judge in the Tax Court we must consider whether the Respondent Judge properly denied this motion for change of judge for cause. The veracity and reasonableness of the allegations in the affidavits supporting a motion for a change of judge for cause must be considered on their face before a hearing to establish cause is ordered. We also agree with the Respondent Judge that these affidavits were insufficient on their face as a matter of law. Therefore the Respondent Judge was not required to conduct a hearing on the requests for change of judge. We agree with the Respondent Judge that the bias and prejudice alleged in the affidavit must be from an extra-judicial source in order to merit a hearing.

Rule 42(f)(2)(A), Arizona Rules of Civil Procedure, sets forth the means by which a party initiates a “Proceeding(s) Based On Cause.” The Rule states in relevant part:

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Bluebook (online)
879 P.2d 367, 179 Ariz. 359, 171 Ariz. Adv. Rep. 36, 1994 Ariz. App. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mervyns-v-superior-court-arizctapp-1994.