dissenting.
Provisions for the disqualification of a judge in a criminal case without an actual showing of bias have been part of the law of this state since the 1913 Penal Code. Under § 999 of the Penal Code of 1913 the statutory procedure for disqualification of a judge in a criminal case was in effect a peremptory challenge which required the trial judge to step aside without any showing of actual bias. Sam v. State, 33 Ariz. 383, 265 P. 609 (1928). With the advent of the 1939 Code, the right to disqualify a judge in a criminal case was extended to the State as well as the defendant. A.R.S. § 44-1201, 1939 Code, Rules of Criminal Procedure No. 248.
At first the disqualification statutes and rules were limited to the superior court, but in 1983 the right to peremptorily challenge a judge was extended to the municipal courts in those cases in which the defendant did not enjoy the right to a de novo review of the conviction. Cain v. City Court of City of Tucson, 135 Ariz. 96, 659 P.2d 649 (1983). The rationale for the decision in Cain was that the parties to the criminal action in non-record courts should have, as a matter of fairness, the same right to peremptory challenges as parties in the superior court.
It is basic that the State has an equal right with the defendant to an impartial court. State v. Barnes, 118 Ariz. 200, 575 P.2d 830 (1978). The peremptory disqualification rule recognizes that it is often difficult to prove actual bias, so a party is entitled to disqualify a judge without the necessity of proving actual bias or prejudice.
It has been recognized that the use of the peremptory challenge to disqualify a judge could be misused for such purposes as obtaining a continuance without any real belief that the judge was biased or prejudiced. Sam v. State, 33 Ariz. 383, 265 P. 609 (1928). Despite the recognition of some abuse in the use of the disqualification rule, this court has nevertheless for many years adhered to the proposition that it is better to uphold the right to the peremptory challenge of a judge rather than become involved in some technical examination of the basis of the challenge. This same position has been followed in California. Faced with a challenge to the procedure of allowing the prosecutor to peremptorily challenge a judge, the California Supreme Court stated:
We conclude that to the extent that abuses persist in the utilization of section *105170.6 [peremptory challenge section] they do not, in our judgment, “substantially impair” or “practically defeat” the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful to view them as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6. The statute thus remains a reasonable—and hence valid— accomodation of the competing interests of bench, bar, and public on the subject of judicial disqualification. We do not doubt that should future adjustments to this sensitive balance become necessary or desirable, the Legislature will act with due regard for the rights of all concerned.
Solberg v. Superior Court of City and County of San Francisco, 19 Cal.3rd 182, 204, 137 Cal.Rptr. 460, 474, 561 P.2d 1148, 1162 (1977).
I disagree with this court’s action in dismissing all the peremptory challenges to Magistrate Fajardo. If that individual isn’t actually prejudiced against the prosecutor after these proceedings, he would be less than human. It must be noted in the so-called uncontested affidavit of the magistrate that he met with officials of the city attorney’s office to discuss the matter of the notices of change of judge. Slip opinion, at 3. Thus, the magistrate has taken more than a casual interest in this process. He charges that the city prosecutors are trying to teach him a lesson. The impartiality of this judicial officer is compromised. In passing, it is also worthy of note that the magistrate probably violated Canon 3 of Judicial Conduct by entering into discussions with the city prosecutors about the challenges in DWI cases. In Canon 3 a judge is reminded to be faithful to the law without regard to public clamor or fear of criticism. Canon 3 A(l). The magistrate should discharge his duties under the law as he understands it, and he should not have become involved in discussions with the prosecutor about disqualification in DWI cases.
The city prosecutor and his staff are certainly not blameless in this saga. If the purpose of the disqualification was to “educate” the magistrate, the attorneys may have violated the Arizona Rules of Professional Conduct in attempting to improperly influence a judge. See Rules of Professional Conduct ER 3.5. In any event, there is a proper forum which has been created to handle lawyer discipline, and we should not confuse that procedure with the right of the State to disqualify a judge.
Turning to the prosecutor’s use of the peremptory challenge, it has long been recognized that such a challenge is a means to disqualify a judge when a party believes that the trial judge has a history or pattern of ruling in favor of one side or at least seeming to be partial to that side. As noted earlier, it is difficult to establish that such a position is actually present to such a degree that it would constitute actual cause for removal of the trial judge from the case. The necessity for that proof is removed by allowing the peremptory challenge. If a magistrate has consistently ruled against positions taken by the State, the prosecutor has a perfectly legitimate right to have that judge removed from future cases. In my judgment, there is absolutely nothing improper in the head of a prosecutorial office establishing a policy that the office will file a notice of disqualification against a given judge in a particular type of case when it appears that the judge favors the defense. Whether the perception of the supervisor has a sound basis is of no consequence; the State is entitled to have its case considered in a fair and impartial manner. The prosecutor would be derelict in his duty in allowing a magistrate or judge to continue to hear cases brought by the State when the attorney for the State is convinced that the magistrate is biased against the State. There should be no restriction on the chief prosecuting officer instructing the attorneys under his or her supervision to also file challenges to the same judicial officer who is perceived to be unfair to the State. There would not be the slightest protest by this court had the record shown it was a *106defense counsel who had a policy of disqualifying a specific judge every time a case was referred to that judge. Nor would there be any objection if the senior partner of a firm directed that the cases of that firm not be taken before a certain judge because the partner believed that judge was not fair and impartial in particular types of litigation conducted by the firm. Such a position would be passed off as simply good advocacy on behalf of the client. When a similar position is taken by the prosecutor, it somehow becomes a matter of injustice. It appears to me that the majority opinion really says that the State’s not entitled to the same fair trial that we guarantee to defendants. I dissent.