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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 01 Jul 2013 06:23 PM by  MPalmer
R-13-0026 Rule 42(f), Arizona Rules of Civil Procedure
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MPalmer
Posts:

--
10 Jan 2013 06:04 PM
    R-13-0026

    Petition to Amend Rule 42(f)(1)(D)(ii)(dd), Ariz. R. Civ. P.

    Would specify that an ex parte hearing does not constitute the commencement of a trial and thus is not a waiver of the entitlement to a change of judge as a matter of right

    Petitioner:
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738 (intermittent cell)
    mikepalmer_arizona@fastmail.fm

    Filed: January 10, 2013

    Comments due May 21, 2013.

    DENIED August 27, 2013.
    Attachments
    GeorgeKing
    Posts:

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    28 Feb 2013 09:55 AM
    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
    gking@lang-baker.com


    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.
    AZStateBar
    Posts:

    --
    29 Apr 2013 10:37 AM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    602.252.4804
    John.Furlong@staff.azbar.org
    Attachments
    domanico
    Posts:

    --
    17 May 2013 06:58 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK C. FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    Domanico@mcao.maricopa.gov.

    Attachments
    MPalmer
    Posts:

    --
    01 Jul 2013 06:23 PM
    Mike Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    602-513-3738
    mikepalmer_arizona@fastmail.fm

    Reply
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