George H. King
Lang Baker & Klain
8767 E. Via De Commercio, Ste. 102
Scottsdale, AZ 85258-3374
Tel: 480-947-1911
Fax: 480-970-5034
[email protected] The discussion of waiver in the Petition points to an issue not raised in the Petition, namely whether the party who seeks ex parte relief may still change that judge as a matter of right even after an ex parte hearing before that judge. The language of Rule 42(f)(D) would seem to indicate that the party would be able to do so, because a judge's ruling is only a waiver "after notice to the parties," and in the ex parte scenario, only one party had notice. Rule 42(f)(1)(D) provides:
(D) Waiver. After a judge is assigned to preside at trial or is otherwise permanently assigned to the action, a party waives the right to change of that judge as a matter of right when:
(i) the party agrees to the assignment; or
(ii) after notice to the parties
(aa) the judge rules on any contested issue; or
(bb) the judge grants or denies a motion to dispose of one or more claims or defenses in the action; or
(cc) the judge holds a scheduled conference or contested hearing; or
(dd) trial commences.
Such waiver is to apply only to such assigned judge.
To me, it makes no sense to allow a party to go before a judge, get an unfavorable ruling on an ex parte matter, and then change the judge.
I would suggest rewriting Rule 42(f)(1)(D)(ii) to read "after notice to the party" instead of "after notice to the parties." This would make it clear that parties who have notice of a proceeding waive their change of judge rights if not timely exercised, even if other parties do not get notice. This appears to be the intent of the rule, and may even be the best reading of the rule, but the change of "parties" to "party" would provide much needed clarification.
Thank you.