specially concurring.
I agree with the majority’s conclusion that we should take special action jurisdiction. However, because I disagree with the majority’s resolution of whether the superior court has jurisdiction to review the actions of a superior court judge sitting as a magistrate in the superior court, I specially concur. With all other aspects of the majority’s opinion I agree.
I disagree with the majority because both the superior court judge sitting as a magistrate and the superior court judge asked to review the magistrate’s ruling in this case, Judge Sheldon, are judicial officers of the same court, the Superior Court of the State of Arizona in and for the County of Maricopa. Since special actions necessarily are from an inferior court to a higher court, Comment to Rule 1, Rules of Procedure for Special Actions, and here the magistrate was sitting in a court of equal jurisdiction to that where the special action was taken, Judge Sheldon correctly concluded that he lacked jurisdiction to consider the special action.
The majority believes that when a superi- or court judge, or other authorized person, sits as a magistrate, the magistrate is sitting without a court and that the magistrate is simply an officer with certain powers and jurisdiction which are specific to the office of magistrate.
The Arizona Constitution, Art. VI, § 1 provides that the judicial power shall be vested in, “an integrated judicial department consisting of a Supreme Court, such intermediate appellate courts as may be provided by law, a superior court, such courts inferior to the superior court as may be provided by law, and justice courts.” Article VI, § 32 of the Arizona Constitution provides, “the jurisdiction, powers and duties of courts inferior to the superior court and of justice courts ... shall be as *91provided by law.” Thus, all Arizona courts are created by the constitution or by the legislature. I fail to find where the constitution or the legislature has provided for a magistrate’s court that is inferior to the superior court such as to enable parties to exercise their appeal and special action rights. Although I agree that a magistrate is a judicial officer with specific powers and jurisdiction, I also believe that the magistrate is a member of the court where he or she is sitting. This must necessarily be so in order for parties to have the right to appeal and to bring special actions, as those rights are exercised from an inferior court to a higher court.
The issue I address today is not an issue of first impression in Arizona. In Green v. Thompson, 17 Ariz.App. 587, 499 P.2d 715 (1972) this court answered the question whether a superior court judge has jurisdiction to entertain a special action against a superior court commissioner in the negative. We stated that traditionally, prohibition, or as writs of certiorari, mandamus and prohibition are now labeled, special action, lies to prevent an inferior court or tribunal from action without or in excess of its jurisdiction. Id. at 588, 499 P.2d at 716. We stated that the question was not whether the superior court commissioner had more limited jurisdiction than the superior court judge, but rather whether the commissioner sits in a court or tribunal that is inferior to the superior court. We concluded that the commissioner sat in the same court as the superior court judge because within the jurisdiction of the superior court, there is a limited area in which the commissioner has authority to act and because, within the scope of the commissioner’s authority, his or her acts have the same force and effect as if done by a superior court judge. We stated that if facts justifying and requiring special action relief from the acts of a commissioner occur, that relief could be obtained from this court. Id. at 591, 499 P.2d at 719.
In support of our decision in Green, we cited People ex rel. Filkin v. Flessner, 48 Ill.2d 54, 268 N.E.2d 376 (1971) where the Illinois Supreme Court was faced with the question of whether a circuit court judge could issue a writ of mandamus or prohibition against a magistrate. We stated that in Illinois the relationship between a circuit court judge and a magistrate parallels the relationship between the superior court judge and the commissioner in Arizona because magistrates are appointed by and serve at the pleasure of circuit court judges and the scope of their authority is defined by law and is a limited area within the jurisdiction of the circuit court. In Filkin, the Illinois Supreme Court held that a circuit court judge could not issue a writ of prohibition against the magistrate because mandamus and prohibition are writs directed to inferior courts. The court stated that the circuit judge and the magistrate were members of the same court. Id. at 56, 268 N.E.2d at 378.
Both Filkin and Green do not regard as pertinent the fact that the magistrate or commissioner is appointed by a judge and that their authority is narrower than that of a judge.
I think the reasoning in Green and Filkin applies equally to magistrates in Arizona. The magistrate in the present case was sitting in the superior court. The order complained of is captioned from superi- or court. Superior court magistrates are appointed by and sit at the pleasure of superior court judges.8 In this case Superi- or Court Judge Reinstein, the presiding criminal judge, appointed Judge Hall a fellow superior court judge to act as magistrate. The scope of the magistrate’s authority is defined by law. The magistrate’s acts have the same force and effect as if done by a judge, albeit within their limited jurisdictional area.
The majority argues that Green is inapplicable because a magistrate is not a member of any court and a commissioner is a *92member of the superior court. That, in my view, is a distinction without a difference. The magistrate sits in the court where he or she has been appointed to sit. Like the commissioner, the magistrate’s jurisdiction is narrower than a judge’s and when the magistrate sits in the superior court, the orders he or she issues are captioned from the superior court.
Following the majority’s argument to its logical conclusion, I wonder where a party would appeal to or request special action relief from when the decision the party complaining of was a decision of a magistrate sitting in city court. Obvious to me is that the action would lie in superior court because one appeals to or brings special action from an inferior court to a higher court. It would seem that the majority would find no jurisdictional problem with an appeal or special action in the first instance to this court because a magistrate is just an officer sitting without benefit of a court.
The majority, citing 22 C.J.S. Criminal Law § 343(a), § 345, argues that the decisions of a superior court judge sitting as magistrate are not an exercise of the judicial power of the superior court. Section 343(a) states:
Jurisdiction to examine and commit persons accused of crime is controlled by constitutional or statutory provisions, and is generally vested in justices of the peace or police magistrates, or in judges or officials authorized to exercise such jurisdiction.
The comment to the section states, “the power to examine and to commit persons charged with crime is not judicial, but is one of the duties of the conservators of the peace, and it may be, and usually is, vested in persons other than courts, as, for instance, justices of the peace, or police magistrates.” Stated simply, the section provides that the role of the magistrate, in some constitutional or statutory schemes, is not carried out by courts of record. However, the section clearly states that the role is guided by the particular state’s statutes and constitution. I believe in Arizona the magistrate is an officer of the court where he or she sits, which may be a court of record.
The majority correctly concludes that when a superior court judge takes on a role separate and apart from his superior court duties, i.e. acts as a magistrate, the judge is acting ex officio. A magistrate certainly is acting without benefit of his or her previous office. However, the magistrate is still a judicial officer of the court where he or she sits, even though the magistrate is dispossessed of the powers of his or her previous office.
Lastly, I disagree with the majority’s reliance on A.R.S. § 12-124(B) for the position that the superior court has jurisdiction in this special action proceeding. Section 12-124(B) provides, “the superior court shall have appellate jurisdiction in all actions appealed from justices of the peace, inferior courts, boards and officers from which appeals may, by law, be taken.” The majority argues that section 12-124(B) gives the superior court special action jurisdiction over the office of the magistrate. It may, when the magistrate is sitting in an inferior court, however, here, the magistrate is sitting in the superior court. To maintain any consistency, this must be the result. The term “officer” as used in that section clearly refers to officers of boards and not to the office of magistrate.
. This is not to say that the superior court could not take special action jurisdiction of the actions of a magistrate sitting in city court or any other court which is inferior to it. See e.g., Price v. Maxwell, 140 Ariz. 314, 681 P.2d 466 (App.1984), vacated on other grounds, 140 Ariz. 232, 681 P.2d 384 (1984).