IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
CLAUDIA PATRICIA HIGUERA,
Petitioner,
v.
THE HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
THE STATE OF ARIZONA,
Real Party in Interest.
No. 2 CA-SA 2016-0033
Filed October 7, 2016
Special Action Proceeding
Pima County Cause No. CR20161073001
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Benavidez Law Group, P.C., Tucson
By Javier Alatorre
Counsel for Petitioner
Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Real Party in Interest
HIGUERA v. LEE
Opinion of the Court
OPINION
Judge Staring authored the opinion of the Court, in which Presiding
Judge Howard and Judge Espinosa concurred.
S T A R I N G, Judge:
¶1 By special action, Claudia Higuera challenges the
respondent judge’s determination that she had waived her right to a
peremptory change of judge under Rule 10.2, Ariz. R. Crim. P., and
had failed to properly file the notice for such a change. We agree
Higuera waived her right and, therefore, although we accept special
action jurisdiction, we deny relief.
Factual and Procedural Background
¶2 Higuera was charged with theft, and arraigned on
March 21. Her case was assigned to the respondent on that date.
On March 30, Higuera’s counsel filed a notice of change of judge
pursuant to Rule 10.2, filing the notice with the clerk of the superior
court and serving the state, but failing to provide a copy to the
respondent’s chambers. A case management conference was set for
April 20, and Higuera appeared, but her counsel did not, due to a
calendaring error. The conference was rescheduled for April 27.1 At
the April 27 conference, Higuera’s counsel informed the respondent
he and the prosecutor had been “trying to do some plea
discussions,” and had agreed to yet another continuance. Counsel
and the respondent discussed dates and set the continued
conference for May 13.
¶3 After the date had been set and counsel asked to be
excused, the respondent told counsel his judicial administrative
assistant had discovered the notice of change of judge. Relying on
Rule 3, Pima Cty. Super. Ct. Loc. R. P., he informed counsel it had
1At oral argument before this court, Higuera’s counsel
conceded he did not raise the March 30 notice of change of judge
with the respondent between the April 20 and April 27 hearings.
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not been “copied to anybody” and had not been sent “to [the
respondent’s] division, or the criminal presiding, or the presiding
judge.” He also told the attorneys that because they had “now gone
through two hearings” the notice had been waived. When the
respondent pointed out that counsel had not brought the notice up
at the conference, Higuera’s counsel responded he “didn’t know that
[he] needed to bring it up” because he had filed it “within the
computer stuff that is supposed to be copied to everybody under the
computer.” The respondent issued a written ruling that, because
Higuera had not properly filed the notice under Rule 3 and because
she had “participated in a pretrial hearing,” she had waived her
right to a change of judge pursuant to Rule 10.2.2
¶4 Higuera subsequently served copies of the original
notice to the presiding judges, the respondent judge, and the court
administrator. She also filed an objection to the court’s decision, and
this petition for special action followed.
Jurisdiction
¶5 “[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.” State v. Ingram, 239 Ariz. 228, ¶ 16, 368 P.3d 936, 940
(App. 2016). Thus, the exercise of special action jurisdiction is
appropriate because Higuera has no remedy by appeal. Ariz. R. P.
Spec. Act. 1(a).
2 At argument, Higuera’s counsel also conceded the
respondent judge first brought up the notice. And counsel indicated
he would not have brought it up had the judge not done so and may
not have raised it at the May 13 hearing, as well. Counsel also
asserted his belief the respondent was trying “to set [him] up.” The
record before us does not support such an allegation, and we
caution counsel concerning making such unsupported statements in
the future.
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Discussion
¶6 Higuera argues her participation in the case
management conference “did not cause a waiver of her right to a
peremptory change of judge.” She also contends she properly
complied with Rule 10.2 and further “service of the pleading” was
not required, contrary to the respondent’s ruling. She asserts Rule 3,
Pima Cty. Super. Ct. Loc. R. P., on which the respondent relied in
part, did not apply.
¶7 The respondent concluded Higuera waived her right to
a peremptory change of judge by appearing at the continuing case
management conference. Higuera argues, however, that because the
conference did not involve “contested issues of law,” “the waiver
provisions of Rule 10.4(a) . . . did not come into play.” We review
de novo issues involving the interpretation of court rules and
“evaluate procedural rules using principles of statutory
construction.” Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030
(App. 2005).
¶8 Pursuant to Rule 10.2(a), “[i]n any criminal case, each
side is entitled as a matter of right to a change of judge.” To exercise
this right, the party must timely file “a pleading entitled ‘Notice of
Change of Judge’ signed by counsel, if any, stating the name of the
judge to be changed” and including an avowal that the request is
“made in good faith” and not for various improper purposes.
Ariz. R. Crim. P. 10.2(b). Rule 10.4(a), however, provides the right to
a peremptory change of judge is lost “when the party participates
before that judge in any contested matter in the case, an omnibus
hearing, any pretrial hearing, a proceeding under Rule 17, or the
commencement of trial.” (Emphasis added.)3
3Effective 1973, Rule 10.2(a) provided that “any party shall be
entitled to request a change of judge,” regardless of the interest or
bias of the judge. Ariz. Sup. Ct. Order (Apr. 17, 1973). Under Rule
10.4, in effect at that time, “[a] party [lost the] right under Rule 10.2
to a change of judge when [the party] agree[d] to the assignment of
the case to a particular judge or participate[d] before him in an
omnibus hearing, any subsequent pretrial hearing, a hearing under
Rule 17, or the commencement of trial.” In 1975, Rule 10.4 was
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¶9 Despite the inclusion of “any pretrial hearing” in Rule
10.4, Higuera argues the respondent erred in concluding she had
waived her right to a change of judge by participating in the April 27
conference because “when a court enters rulings on motions which
do not concern the merits of the case or involve consideration of
evidence or affidavits, the waiver provisions do not apply.” For
support, Higuera relies on several cases discussing various versions
of the civil and criminal rules relating to requests for changes of
judge.
¶10 Higuera relies first on State v. Poland, which in turn
cited several decisions by this court, on which Higuera also relies.
144 Ariz. 388, 395, 698 P.2d 183, 190 (1985). In Poland, our supreme
court addressed the defendant’s failure to timely file a notice for a
peremptory change of judge due to the state’s filing of a motion to
dismiss his first-degree murder convictions, which the supreme
court had reversed. Id. at 394-95, 698 P.2d at 189-90. Poland argued
that because “a motion for change of judge would have been
unnecessary” had the dismissal been granted, “strict compliance
with the rule should be waived.” Id. at 394, 698 P.2d at 189. The
court acknowledged that strict compliance with the time
requirements of the rule “can be waived where the peremptory
challenge is made diligently and as soon as practicable,” but
determined Poland had not acted diligently. Id.
¶11 The court then stated Poland had also “waived his
peremptory challenge rights” by participating in hearings which
“involved contested issues.” Id. at 395, 698 P.2d at 190 (“The
hearings in this case involved contested issues insofar as the parties
disagreed on the important question of whether the requested
dismissal would be with or without prejudice.”). Citing this court’s
decision in Itasca State Bank v. Superior Court, 8 Ariz. App. 279, 445
P.2d 555 (1968), it set forth the principle that a party waives the right
to a peremptory challenge by participating in such a hearing. Id.
And it distinguished Poland’s situation from that presented in our
decision in City of Sierra Vista v. Cochise Enterprises, Inc., 128 Ariz.
467, 626 P.2d 1099 (App. 1979), in which, our supreme court stated,
amended to provide that the right was waived by participating in
“any pretrial hearing.” Ariz. Sup. Ct. Order (May 7, 1975).
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we had determined that “a hearing on a stipulated, and therefore
uncontested, motion to dismiss with prejudice did not result in a
waiver.” Id.
¶12 From this, Higuera argues that only participation in a
contested hearing can result in waiver of the right to a peremptory
change of judge. But our supreme court did not go so far in Poland.
Instead, it held only that Poland had waived his right by
participating in the contested matter, and it did not purport to set
forth the only ground on which to distinguish City of Sierra Vista. Id.
Likewise, when viewed in light of the rules in place at the times of
the decisions the Poland court discussed, it is clear those cases did
not impose the broad requirement Higuera urges.
¶13 In Itasca State Bank, we addressed A.R.S. § 12-409, the
civil statute providing for a change of judge for cause. 8 Ariz. App.
at 280-81, 445 P.2d at 556-57. That statute provides, as it did when
Itasca was decided, that a party may file an affidavit alleging the
judge has a conflict or is interested in the action or that the party
“has cause to believe and does believe that on account of the bias,
prejudice, or interest of the judge he cannot obtain a fair and
impartial trial.” § 12-409. We concluded this statute “imposes no
time limitation,” and that under a 1955 decision, “it is too late to
disqualify” a judge if he or she “is allowed to receive evidence
which of necessity is to be used and weighed in deciding the
ultimate issues.” Itasca State Bank, 8 Ariz. App. at 281, 445 P.2d at
557, quoting Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955). We
therefore rejected the respondent judge’s apparent determination
that because the bank had “allowed him to hear evidence relating to
the default judgment” it had waived its right of “peremptory
challenge.”4 Id. We stated that because “[n]o contested issue of law
4 “Before Rule 42(f) was amended to allow a peremptory
change of judge as of right, the same peremptory challenge ‘was
accomplished by an affidavit of bias and prejudice which was a
mere form and not intended or required to be true.’ Yet, such
affidavits were also used as true challenges for cause.” Taliaferro v.
Taliaferro, 186 Ariz. 221, 222, 921 P.2d 21, 22 (1996), quoting King v.
Superior Court, 108 Ariz. 492, 493, 502 P.2d 529, 530 (1972).
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or fact was involved in the default judgment hearing,” the bank had
not waived its right. Id.
¶14 Later this court addressed waiver under Rule 42(f),
Ariz. R. Civ. P., the civil rule relating to the peremptory change of
judge. City of Sierra Vista, 128 Ariz. 467, 626 P.2d 1099. In that case,
after “[v]arious motions” had been filed, the trial court dismissed
the civil complaint and counterclaim pursuant to a stipulation that a
settlement had been reached. Id. at 467-68, 626 P.2d at 1099-1100.
The petitioner thereafter filed a notice of change of judge and a
motion to consolidate the action with another pending against a
co-defendant in a different division. Id. at 468, 626 P.2d at 1100. The
motion to consolidate was granted and, after a hearing on the
motion for change of judge, the motion was denied. Id.
¶15 In City of Sierra Vista, we discussed former Rule
42(f)(1)(D)(i), which provided for waiver when there had been a
“judicial proceeding which concerns the merits of the action and
involves the consideration of evidence or of affidavits.” Id., quoting
former Ariz. R. Civ. P. 42(f)(1)(D) (1972). In that context, we cited
Itasca for the proposition that before the right to change of judge
may be waived, “a hearing must involve a contested issue of law or
fact” and determined that the dismissal had not involved such
issues. Id. We did not address any other subsection of former Rule
42(f)(1)(D), including those which allowed for waiver after “[a]
pretrial conference,” “commencement of trial,” or agreement of the
parties on a judge.5
¶16 Close analysis of our case law, therefore, discloses that
the statutes and rules addressed therein differed from that presented
to us in this matter. Rule 10.4 now provides that a party waives the
right to a peremptory change of judge by participating “in any
contested matter in the case, an omnibus hearing, any pretrial
5Likewise, in County Attorney v. Superior Court, we discussed
civil decisions and criminal rules predating Rule 10.4, which did not
provide for waiver based on participation in the hearings now
included in Rule 10.4. 11 Ariz. App. 346, 464 P.2d 666 (1970); see also
Ariz. Code Ann. §§ 12-107, 44-1201 (1939); former Ariz. R. Crim. P.
196, 200 (1956).
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hearing, a proceeding under Rule 17, or the commencement of trial.”
Outside of Poland, in which the court’s holding was limited as
discussed above, none of the cases on which Higuera relies involved
rules or statutory provisions providing that a party waives the right
to a peremptory strike by appearing before a judge at a pretrial
hearing or conference, as is now provided in Rule 42(f), Ariz. R.
Civ. P., and Rule 10.4, Ariz. R. Crim. P.6
¶17 Higuera’s reliance on these cases and Poland, therefore,
is misplaced. The issue before us, having not been decided
expressly in earlier case law, depends on the meaning of the list
provided in Rule 10.4, which sets forth the grounds for waiver of the
peremptory change of judge. As noted above, the list of events
includes: “any contested matter in the case, an omnibus hearing, any
pretrial hearing, a proceeding under Rule 17, or the commencement
of trial.” Ariz. R. Crim. P. 10.4(a) (emphasis added). Higuera argues
we must read “any pretrial hearing” to mean only a “‘contested’
pretrial hearing.” But to do so is to disregard the clear language of
the rule. See Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030
(App. 2005) (plain language of rule “best indicator” of supreme
court’s intent in promulgating it). “[A]ny contested matter” must
mean something different from “omnibus hearing,” “any pretrial
hearing,” Rule 17 proceeding, or “commencement of trial” or there
would have been no reason for our supreme court to include those
events or to use the conjunctive “or” to separate them. See Devenir
Assocs. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161, 164 (1991)
(“The court must, if possible, give meaning to each clause and word
in the statute or rule to avoid rendering anything superfluous, void,
contradictory, or insignificant.”). Thus, the rule plainly and
unambiguously provides that a party waives its right to a
6Arizona courts have in the past stated that “the principles of
law by which we determine whether one had lost his right to a fair
and impartial judge are . . . the same whether the case be civil or
criminal.” County Attorney, 11 Ariz. App. at 347, 464 P.2d at 667,
quoting Marsin, 78 Ariz. 309, 279 P.2d 721. But that principle
predated the modern rules, which contain somewhat different
provisions in each context.
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peremptory challenge by participating in any of the enumerated
events, not just a contested matter.
¶18 In this case, the hearing in which Higuera participated
was a “case management conference.” As noted, Higuera contends
“pretrial hearing” should be interpreted to mean a hearing that
involves a contested matter. She therefore does not address whether
the case management conference otherwise qualified as a pretrial
hearing. The state, in contrast, argues that because the possibility of
a plea agreement was mentioned the hearing was “a proceeding
under Rule 17.” We need not determine if this proceeding could
also be considered one under Rule 17, because we conclude it falls
within the broad ambit of “any pretrial hearing.”
¶19 The term “pretrial hearing” is not defined in the rules of
criminal procedure. But, as indicated above, to avoid redundancy
and superfluousness, it must mean something other than “omnibus
hearing,” Rule 17 hearing, or commencement of trial. Rule 16.3 sets
forth the “[p]rocedure on omnibus hearings,” which defines the
scope of that proceeding as including the court’s hearing motions,
obtaining stipulations on fact, discussion of time limits and trial
logistics, and the setting of “further hearings for the taking of
evidence or argument of motions as are needed.” Such hearings, or
“judicial session[s],” must then be considered “pretrial hearing[s]”
for purposes of Rule 10.4. Hearing, Black’s Law Dictionary (10th ed.
2014) (“A judicial session, usu[ally] open to the public, held for the
purpose of deciding issues of fact or of law, sometimes with
witnesses testifying.”).
¶20 The “judicial session” at issue, however, was not
scheduled pursuant to an omnibus hearing, but took place before
any such hearing occurred. But, in view of the history of Rule 10.4,
we cannot say “pretrial hearing” is limited solely to those hearings
taking place after an omnibus hearing. In 1975, the rule was
amended to remove the word “subsequent,” which had previously
modified “pretrial hearing.” Because our supreme court removed
that word, we must presume it intended a waiver to result from
participation in all pretrial hearings, not only those subsequent to an
omnibus hearing. See State v. Campoy, 220 Ariz. 539, ¶ 18, 207 P.3d
792, 799 (App. 2009) (court considers amendments and commentary
to rule as reflecting intent of drafters as “to meaning and
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application” of rule). The hearing at issue here falls within that
broad category.
¶21 Higuera argues, however, that the “waiver provisions
of Rule 10.4(a) . . . apply only prior to the filing of the peremptory
challenge.” She contends that by filing the notice she had already
exercised her right, and therefore could not waive it. The contrary
conclusion, she asserts, would “allow a defendant to test the waters
with the judge she has already challenged” and then “decide to
waive the Notice and keep the judge.” But nothing in Rule 10.4
limits the waiver provisions to the filing of the notice. Instead of
stating that a party waives the right to a change of judge by failing to
file a notice before any of the named proceedings, the rule provides
that a party waives the right by participating in those proceedings.
Thus, Higuera’s failure to assert, by no later than the outset of the
April 27 proceeding, that she had filed a Rule 10.2 notice, and her
decision to continue to participate in the proceeding despite having
filed a notice, waived her right to a peremptory change and forfeited
any attendant error by the respondent judge in proceeding, absent
evidence of bias or prejudice. 7 See State v. Waller, 235 Ariz. 479,
7Higuera also argues the respondent judge “had no authority
to enter rulings on [her] 10.2 Notice.” She contends that upon her
filing of the notice, the respondent was required to transfer the
matter to the presiding judge for reassignment. But reassignment by
the presiding judge is required “once a proper notice ha[s] been
filed.” Bergeron ex rel. Perez v. O’Neil, 205 Ariz. 640, ¶ 20, 74 P.3d 952,
959 (App. 2003). Nothing in Rule 10 requires a judge to transfer the
proceeding to the presiding judge if a notice is untimely or the right
has been waived.
On the record before us, it appears the respondent judge was
made aware of the notice only as he prepared for the hearing in
which Higuera participated. Because we conclude Higuera waived
her right to a peremptory change of judge, regardless of whether her
notice was properly filed, we do not address the respondent judge’s
ruling that Rule 3, Pima Cty. Super. Ct. Loc. R. P., which is entitled
“Procedure: Civil Motions, Proposed Orders, Oral Argument, Notice
of Hearing, Telephone Conferences, and Discovery,” may properly
be applied to a criminal proceeding.
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¶¶ 41-43, 333 P.3d 806, 818 (App. 2014) (no fundamental error when
motion for change of judge for cause denied absent showing
“outcome of [the] case would have been different”). Because
participating in the proceeding constitutes the waiver, a party will
not be allowed to participate and then make a choice as to whether
to waive an earlier-filed notice. Rather, once a party fails to assert a
notice has been filed and participates in the proceeding, the right to
a peremptory change of judge is irrevocably waived.
¶22 To the extent Higuera contends interpreting Rule 10.4 to
provide for waiver based on participation in any pretrial hearing
rather than only a contested, substantive one will violate a party’s
right to a trial before a fair and impartial judge, we disagree. “[T]he
loss of the right to a peremptory challenge of a judge in no way
affects a party’s Rule 10.1 right to a change of judge for cause.” Hill
v. Hall ex rel. Cty. of Yuma, 194 Ariz. 255, ¶ 6, 980 P.2d 967, 969
(App. 1999); see also State v. Shields, 26 Ariz. App. 121, 122-23, 546
P.2d 846, 847-48 (1976). Thus, a party who waives the right to a
peremptory change of judge is free to seek a change of judge for
cause if the judge assigned to the case is unfair or partial. “[T]he
granting of a peremptory challenge to obtain a change of judge as a
matter of right is a challenge which is given as a matter of grace
under the Rules, and is to be distinguished from a disqualification of
a judge based upon cause.” Hickox v. Superior Court, 19 Ariz. App.
195, 198, 505 P.2d 1086, 1089 (1973); see also State v. Reid, 114 Ariz. 16,
21, 559 P.2d 136, 141 (1976) (no constitutional right to peremptory
change of judge).
¶23 For all these reasons we conclude, based on the
language of Rule 10.4, that Higuera waived her right to a
peremptory change of judge. We therefore cannot say the
respondent judge’s ruling was “arbitrary and capricious or an abuse
of discretion” or that he “proceed[ed] without or in excess of
jurisdiction or legal authority.” Ariz. R. P. Spec. Act. 3(b), (c).
Disposition
¶24 Thus, although we accept special action jurisdiction, we
deny relief.
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