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Last Post 27 May 2021 06:42 PM by  J. Greene
R-21-0006 Petition to Amend Various Rules of Procedure Related to the Peremptory Change of Judge
 55 Replies
Author Messages
Jennifer Greene
New Member
Posts:35 New Member

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07 Jan 2021 05:28 PM
    Filed on behalf of:
    Committee of Presiding Judges
    c/o Administrative Office of the Courts
    1501 W. Washington, Suite 411
    Phoenix, AZ 85007
    (602) 452-3301
    [email protected]

    Would abrogate the rules authorizing a change of judge as matter of right that are found in the criminal, civil, family law, eviction, and justice court procedural rules, and would amend or abrogate related provisions in those or other rules.

    Filed: January 7, 2021

    Comments must be submitted on or before Monday, May 3, 2021.

    Replies must be submitted on or before Tuesday, June 1, 2021.
    Attachments
    James_Smith
    New Member
    Posts:4 New Member

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    22 Jan 2021 01:10 PM
    I endorse the petition. As it noted, peremptory changes of judge don't exist in most states or federal court. Nonetheless, those courts function and provide impartial jurists. Likewise, our appellate courts don't offer litigants the opportunity to strike an appellate judge or justice; the ARCAP implicitly recognize the impartiality of all appellate jurists unless a party shows cause.

    What's more, litigants can abuse the right to such challenges. In civil cases, a party opposing a time-sensitive provisional remedy may file a notice on the eve of a hearing. The problem may be more pronounced in election cases, which often have tight deadlines. An election litigant may file his/her notice of change of judge the morning of the return hearing, which leads to a new assignment and later hearing date. The parties and the court lose valuable time while the case is reassigned and a new hearing scheduled.

    Arizona should join the majority of states and the federal system by eliminating peremptory changes of judge.

    James D. Smith
    No. 016760
    101 W. Jefferson St.
    No. 814
    Phoenix AZ 85003
    (602) 372-5945
    Charles B. Williamson, esq.
    New Member
    Posts:2 New Member

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    29 Jan 2021 05:26 PM
    I oppose this petition, particularly as it pertains to changing the Rules of Civil Procedure. The rationale expressed in this petition applies almost exclusively to dilatory tactics in criminal and juvenile courts, especially in outlying counties. There are no such problems in civil court, especially in Maricopa and Pima Counties. I will point out the footnote on page 2 … although we appear to be in the minority of the 18 states that allow changes as a matter of right, ALL states in the 9th Circuit (except HI) remain in the so-called "minority." Further, 5 of the 18 states (CA, ID, IN, NV, and TX) only require a showing of cause for criminal cases, while still allowing the notice without cause in civil. I welcome the criminal attorneys to chime in, but from my perspective, following these 5 states is a reasonable compromise if in fact this rule is abused in criminal courts.

    The only comment in the petition itself that appears to pertain to the civil practice states that “[a]nother unintended consequence of these rules is that they can operate to hide the truth when a judge needs to be removed for cause or needs to address deficiencies in areas such as judicial demeanor or knowledge of the law.” If that is a concern, then add a requirement that any party who chooses to notice a judge as a matter of right under ARCP 42.1 must separately and confidentially articulate their reasons for doing so to the JPR Commission within a reasonable time frame. But the question of whether to allow a notice should not hinge upon whether there is adequate cause.

    The prior comment about the dangers of keeping Rule 42.1 stating "a party opposing a time-sensitive provisional remedy may file a notice on the eve of a hearing" is misleading. Rule 42.1(c)(4) clearly states that where the Parties have received at least 5 days notice of a proceeding -- which would be the vast majority of proceedings in civil cases -- any notice of change of judge is ineffective if filed within 3 days of that proceeding. Combined with the many other limitations within the Rule, especially where a Judge may not be noticed after ruling on a contested issue, there are adequate and fair protections in place.

    Our firm has personally only noticed a Judge once in the last 10 years, and we may not need to do it at all in the next 10 years, but I am grateful that Rule 42.1 exists as it is currently written, and I hope it remains to ensure that our clients have reasonable access to justice.

    Charles B. Williamson
    Clausen & Williamson PLLC
    2999 N. 44th St. #318
    Phoenix, AZ 85018
    (602) 285-4450
    Don
    New Member
    Posts:1 New Member

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    04 Feb 2021 01:09 PM
    I echo Charles Williamson's comment and oppose the petition so far as it applies to civil cases.

    Donal Burnett (#028800)
    Burnett Law Office, PLC
    1744 S. Val Vista Dr., #208
    Mesa, AZ 85204
    480-347-9116
    Yolanda Fox
    Basic Member
    Posts:225 Basic Member

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    05 Feb 2021 02:29 PM
    I am opposed to the petition, particularly the portion that proposes to delete the peremptory change of judge for civil cases. I have practice civil trial law for the last 33 years, primarily in Maricopa County. My experience that a change of judge is only rarely employed in Maricopa County in civil matters. In fact, it is far more common for judges to recuse themselves or to be rotated to different calendars during the course of the matter, sometimes shortly before trial. The Commission on Trial Court Appointments generally does a fine job, but litigants deserve the opportunity to get a different judge in the rare instances where counsel believes a judge is not right for a case. The general belief among lawyers in the community seems to be that certain judges account for nearly all the peremptory notices in a given time frame because of a widespread belief in the bar that the judge is biased or incompetent. If that is in fact the case, the better solution would be to solve the problem with the judge, rather than to take away the rights of the litigants.

    Matthew P. Millea
    Millea Law Firm
    301 East Bethany Home Road
    Suite B-100
    Phoenix, Arizona 85020
    (480) 367-1921
    PCBA
    New Member
    Posts:11 New Member

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    25 Feb 2021 01:51 PM
    The Pima County Bar Association opposes this Petition. Please see attached comment.

    Commenter:
    James W. Rappaport

    Committee:
    Pima County Bar Association, Rules Committee

    Mailing address:
    177 North Church Avenue
    Tucson, AZ 85701

    Phone Number:
    520-623-8258

    Email address:
    [email protected]

    Bar Number:
    031699
    Attachments
    Haralambie
    New Member
    Posts:1 New Member

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    11 Mar 2021 07:50 PM
    Ann M. Haralambie
    3661 N. Campbell Avenue, PMB #130
    Tucson, AZ 85719
    (520) 327-6287

    I believe I posted a comment this morning, but it does not appear to have gone through. I oppose this amendment as it would apply to family law cases. Family law matters, especially concerning child custody (now known as legal decision-making and parenting time) are highly discretionary. Even if they heard the same evidence and made identical findings of fact, different judges might enter very different orders. Given the greatly deferential appellate review, parties have no effective recourse. Because of the degree of discretion involved in custody matters, judges' personal life experiences, philosophies regarding parental autonomy vs. child protection, inherent biases, etc. particularly affect how particular judges might rule in custody cases. I have practiced family and child welfare law for 44 years and rarely exercise a peremptory notice of change of judge (and see them only rarely from other Pima County attorneys). But it remains an important tool and enhances public confidence in the judicial system. It has been many years since I practiced criminal and general civil law, but I would urge you to leave the peremptory challenge in place for family law cases.
    Brian A. Laird, Tucson
    New Member
    Posts:1 New Member

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    20 Mar 2021 07:11 PM
    I join those who oppose this proposed rule change, particularly the well-reasoned comments by Charles B. Williamson and Matthew Millea, and by James Rappaport and Abbe Goncharsky on behalf of the Pima County Bar Association. In the civil arena, Rule 42.1 provides important procedural protections for citizens against unintentional and unconscious biases by judges. Anyone who does not understand that such biases exist should read Thinking Fast and Slow, by Daniel Kahneman, in which the Nobel prize laureate explains the clinical evidence proving the existence of hard-wired systems in the human brain that lead to unconscious decision-making errors. It should be compulsory reading for all justices, judges, and attorneys.

    The committee’s unsupported allegations of racial, gender, or religious biases against judges are deeply troubling. If the presiding judges or the ad hoc committee have evidence of such serious wrongful conduct, they should report it in detail. In the absence of evidence, the remarks are inflammatory rhetoric, arguably in violation of Rule 1.2 of the Arizona Code of Judicial Conduct, and accordingly should be withdrawn. This is particularly true because the judges seek to abrogate rules that provide protection for litigants against biases, perceived or actual. If the alleged biases against judges based on race, gender, or religion are merely imagined, and not supported by evidence, we are presented with an unintended irony: the committee credits its own perceptions of biases in attorneys and litigants against judges, while refusing to acknowledge that attorneys and litigants may have similar valid perceptions about judges.

    The committee of presiding judges is composed of 13 white men and two white women. It is indeed an interesting time when a powerful committee of all white judges raises the specter of alleged racial bias in support of its attempt to abrogate rules that provide protections to litigants.

    Also troubling is the committee’s complaint that judges are prohibited from looking into the reasons for an attorney filing a notice under Rule 10.2. Why should judges even care if they get “bumped”? Move on to the next case. There is plenty of work to be done. The possibility of a bar complaint is strong deterrent to any attorney who would falsely state that a notice of change of judge is filed in good faith when it is not, and the state bar is perfectly capable of investigating any such charge. The notion that a judge would take a personal interest in such a matter only serves to illustrate the need to preserve these rules.

    Brian A. Laird
    Laird Law PLLC
    3573 E. Sunrise drive, Suite 215
    Tucson, AZ 85718
    (520) 230-8878
    JAH117
    New Member
    Posts:1 New Member

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    22 Mar 2021 02:34 PM
    Jilyane Acevedo Henry (#032117)
    Stromfors Law Office
    3200 N. Dobson Rd. Ste D-1
    Chandler, AZ 85224
    480-237-1276

    I echo the sentiments opposing the rule change to strike the change of judge rule. I agree with comments made by Brian Laird, Charles Williamson, Ann Haralambie and the Pima County Bar Association.

    Unfortunately, there is a significant amount of discretion in the court with regard to the interpretation of laws. While it would be ideal to have more uniformity, no two courtrooms are the same. In one court, a party may obtain a more favorable spousal maintenance or parenting time ruling than in another court - regardless of the stated laws. COVID has highlighted the need for change of judge filings like no other time. Though every judge should be given the benefit of the doubt as it comes to their ability to impartially decide matters, judges are human and bring with them the experiences they have used to build their careers and lives.

    While there are many other reasons - not elaborated here - results based on the same/similar fact patterns before different judges often yield different results. Until we can remove this variable, without the need for litigants to spend thousands/years on appeals (which most cannot afford), the change of judge option is the most reasonable option available.
    Lisa Hobson
    New Member
    Posts:1 New Member

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    26 Mar 2021 07:35 PM
    Lisa Hobson, Esq. (#032110)
    P.O. Box 20858
    Sedona, AZ 86341
    (928) 300-5480

    I oppose permanent change to challenge of judge by right, Rule 4, Family Law Rules of Procedure.
    The temporary hold on challenge as of right ​has already negatively effected one of my cases during COVID.

    I have been practicing Family Law in Yavapai County since 2015. There is no pool of judges that your case will be randomly assigned to here in small town USA. So to have it assigned to one you know is not going to be favorable to your client, or cause; and you have no facts to assert bias, is like a death sentence for your case. It's too difficult to prove bias ,then you are stuck with the judge you just papered ;and how do you think that's going to effect the judge? One of the things that an experienced attorney is highly compensated for, is knowing your judge and being able to advise your client about that judge - strategy.

    Family law practitioners have already been run over once with the infiltration of legal paraprofessionals. We don't need another slap in the face. It seems that the reason behind abrogation of this rule are for the convenience of the system; and that is not a good reason at all.

    Lisa Hobson, Esq.
    Kay L. Radwanski
    New Member
    Posts:11 New Member

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    12 Apr 2021 06:20 PM
    Honorable Charles W. Gurtler, Jr., Presiding Judge
    Superior Court in Mohave County
    2225 Trane Road
    Bullhead City, AZ. 86442
    Chair, Committee on Superior Court
    Staff: [email protected]
    Telephone (602) 452-3360

    The Committee on Superior Court (“COSC”) has authorized the Honorable Charles W. Gurtler, Jr., chair, to file this comment regarding Petition No. R-21-0006 on its behalf. COSC conducted a special meeting on April 2, 2021, to address various rule petitions. The committee voted unanimously, with the six members who are presiding judges abstaining, to support adoption of Petition R-21-0006. For the reasons stated by the petitioners, COSC respectfully asks the Court to adopt Petition R-21-0006.
    Greg Sakall
    New Member
    Posts:5 New Member

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    20 Apr 2021 11:50 AM
    Hon. Greg Sakall (021310)
    Judge, Division 23
    Pima County Superior Court
    110 West Congress St.
    Tucson, AZ 85701
    (520) 724-8301
    [email protected]

    Comment attached on behalf of the Hon. Greg Sakall, along with Andrew Jacobs, the Hon. Kenneth Lee, and the Hon. Richard Gordon.
    Attachments
    Lynn Goar
    New Member
    Posts:2 New Member

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    22 Apr 2021 04:44 PM
    I am opposed to these suggested changes. The right to change a judge once as a matter of right is a longstanding procedure. It allows parties to avoid a judge that it may have had problems with in the past. While it may not rise to the level of a change of judge for cause, it eliminates hard feelings and increases trust in the system. In the average civil case, I see no downside to the current system. If there are problems in specific types of cases, as in emergency hearings or election matters, the rule could be narrowly amended to account for those.

    Lynn Goar
    1955 W. Grant Rd., Ste. 125G
    Tucson, AZ 85745
    520-740-1447
    [email protected]
    Annette
    New Member
    Posts:5 New Member

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    24 Apr 2021 02:45 PM
    I oppose this change and the peremptory right to one change of judge should be preserved in family court cases.

    I support and endorse the Comments filed by Judge Sakall in opposition to this Rule change, and I support and endorse the Comment in opposition to be filed by the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML).

    Annette Burns, Attorney
    State Bar No. 009871
    4808 North 22nd Street, Suite 200
    Phoenix, Arizona 85016
    [email protected]

    Kristina Matthews
    New Member
    Posts:1 New Member

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    24 Apr 2021 05:22 PM
    I oppose this rule change. Practicing in both the criminal and the family arena as well as federal court where there is no such rule, I find it to be one of the better aspects of state court versus federal. It is not abused and oftentimes necessary to ensure a fair adjudication in all types of practices.

    I share the sentiment of most lawyers, the AAML, and the Pima County Bar.

    Kristina Matthews, #023467
    Matthews Law Firm
    5505 W Chandler Blvd Ste 5
    Chandler, AZ 85226
    (480) 256-0256
    MBower
    New Member
    Posts:1 New Member

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    26 Apr 2021 12:45 PM
    I oppose this Rules Petition and the peremptory right to change of judge should be preserved in family court cases. I support and endorse the Comment in opposition filed by the Arizona chapter of AAML.

    Melissa Kleminski Bower
    [email protected]
    777 E. Thomas Road, Suite 210
    Phoenix, AZ 85014.
    Robert Schwartz
    New Member
    Posts:1 New Member

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    26 Apr 2021 06:36 PM
    Robert Schwartz
    1850 North Central Avenue
    Suite 1400
    Phoenix, AZ 85004
    [email protected]
    602-285-5020

    There is no logical reason to remove the litigants right to a peremptory challenge for change of Judge. This is especially true in family law cases. The feeling of Judicial bias runs very strong in these cases and affects the litigants perception of being able to receive a fair hearing/trial. All Judges have particular bias and opinions regarding discretionary matters. Litigants should retain the right to change a Judge that they feel may be pre-disposed to certain issues. I strongly oppose removing such right
    John Bolt
    New Member
    Posts:1 New Member

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    26 Apr 2021 06:59 PM
    I oppose this change and the peremptory right to one change of judge should be preserved in family court cases.

    I support and endorse the Comments filed by Judge Sakall in opposition to this Rule change, and I support and endorse the Comment in opposition to be filed by the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML).

    John R. Bolt
    State Bar No. 003534
    730 E. Cool Mist Dr.
    Oro Valley, AZ 85755
    [email protected]
    Dana Levy
    New Member
    Posts:1 New Member

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    26 Apr 2021 08:30 PM
    I oppose this change and the peremptory right to one change of judge should be preserved in family court cases.
    I support and endorse the Comment in opposition to be filed by the Arizona chapter of the AAML.

    Dana M. Levy, #016249
    1850 North Central Suite 1400
    Phoenix, Arizona 85004
    [email protected]

    Annette
    New Member
    Posts:5 New Member

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    27 Apr 2021 12:50 PM
    The Comment in opposition to R-21-0006 filed by the Arizona Chapter of the American Academy of Matrimonial Lawyers (AAML) is attached.

    Filed by Annette Burns on behalf of Arizona Chapter, AAML
    4808 North 22nd Street, Suite 200
    Phoenix, Arizona 85016
    602-230-9118
    [email protected]

    Attachments
    WBishop
    New Member
    Posts:1 New Member

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    27 Apr 2021 02:38 PM
    William D. Bishop
    7210 N. 16th St.
    Phoenix, AZ 85020
    (602) 749-8500

    I oppose this rule change. I support the opposition submitted by the Arizona Chapter of the American Academy of Matrimonial Lawyers. William D. Bishop.
    LAURA C. BELLEAU
    New Member
    Posts:1 New Member

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    27 Apr 2021 07:53 PM
    I strongly oppose this change. I support and endorse the Comment filed by the Arizona Chapter of the American Academy of Matrimonial Lawyers (AAML), as well as the Comment filed by Judge Sakall in opposition to this Rule change.

    Laura C. Belleau, #014334
    Karp & Weiss, PC
    3060 N. Swan
    Tucson, Arizona. 85712
    [email protected]
    Len Karp
    New Member
    Posts:1 New Member

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    28 Apr 2021 06:22 PM
    Len Karp
    3060 N Swan Rd
    Tucson, AZ 85712
    (520) 325-4200

    I oppose this Rules Petition and the peremptory right to change of judge should be preserved in family court cases. I support and endorse the Comment in opposition filed by the Arizona chapter of AAML and that filed by Pima County Judges Sakall, Jacobs, Lee and Gordon. I have been practicing law in the State of Arizona for 56 years and have tried civil, criminal and family law cases before judges and juries. It is especially important in family law cases to preserve the right to the peremptory change of judge because the assigned judge is both the trier of fact and law as opposed to most civil or criminal cases.
    Kathleen Stillman
    New Member
    Posts:1 New Member

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    29 Apr 2021 10:11 AM
    Kathleen Stillman
    2201 E Camelback Rd Ste 650
    Phoenix, AZ 85016
    (602) 955-1515
    I oppose this Rules Petition and the peremptory right to change of judge should be preserved in family court cases. I support and endorse the Comment in opposition filed by the Arizona chapter of AAML.
    Aaron T. Blase
    New Member
    Posts:1 New Member

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    29 Apr 2021 12:35 PM
    I oppose this Rules Petition and believe that a parties’ peremptory right to a change of judge should be preserved in Family Law matters.

    I support and endorse other comments that have been filed in opposition to this Rule change, including the detailed comments by the Pima County Bar Association, by Judge Sakall, and by the Arizona Chapter of AAML.

    Aaron T. Blase (#025906)
    Davis, Blase, Stone, and Holder
    11111 N. Scottsdale Rd., Ste. 225
    Scottsdale, Arizona 85254
    [email protected]
    Marie Zawtocki
    New Member
    Posts:1 New Member

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    29 Apr 2021 01:02 PM
    I also object to these proposed rule changes especially as they apply to Family Court and Civil Court.
    I am in agreement with the many and varied reasons provided by the other persons commenting in favor of maintaining the rules as they currently are. The comments that are publicly available include judges, attorneys, pro tems, and mediators from a number of counties across Arizona.
    While I have not had to use the existing rule often, when exercised it has allowed my client a fair and equitable result in their case and given them confidence in the judicial system. When an opposing attorney is exercising this, we often discuss the reasons why. I have never had reason to question that they are likewise exercising this in good faith. As at least one person commented, if an attorney was abusing this rule, there are other avenues to address that.
    That other states or court systems do not have this rule, is not a reason to do away with it. It serves a valid purpose. Perhaps those states and court systems should consider implementing this rule themselves.

    Marie Splees Zawtocki
    Attorney -- Family and Civil Law
    2345 S Alma School Road, Suite 200
    Mesa, Arizona 85210
    480-655-0733
    Carol Soderquist
    New Member
    Posts:1 New Member

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    29 Apr 2021 01:20 PM
    I oppose the proposed change to the peremptory right to change of judge. This right is essential in the subjective arena of family court, which often encompass issues of domestic violence.

    I support and endorse the comments filed on April 20, 2021, by Hon. Greg Sakall, Andrew Jacobs, Esq., the Hon. Kenneth Lee, and the Hon. Richard Gordon.

    Carol A. Soderquist, Esq.
    SODERQUIST LAW PLLC
    17470 N Pacesetter Way
    Scottsdale, AZ, 85255
    Office (480) 256-8355
    Michael Shew
    New Member
    Posts:1 New Member

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    29 Apr 2021 01:48 PM
    I oppose this Rules Petition and the peremptory right to change of judge should be preserved in family court cases for the various reasons explained in the brief in opposition submitted by the Hon. Greg Sakall, along with Andrew Jacobs, the Hon. Kenneth Lee, and the Hon. Richard Gordon, and the brief in opposition submitted by the Arizona Chapter of the American Academy of Matrimonial Lawyers.

    Michael J. Shew
    Certified Family Law Specialist
    State Bar of Arizona, Board of Legal Specialization

    Michael J. Shew, Ltd.
    15835 South 46th Street, Suite 136
    Phoenix, Arizona 85048-0446
    Ph: (480) 940-3636
    Fax: (480) 940-3646
    www.michaelshew.com
    [email protected]



    JEAAssistant
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:02 PM
    Please see comments in attached letter to the Arizona Supreme Court by John Eli Aboud, Esq.

    John Eli Aboud, Attorney
    1661 N. Swan Rd., Ste. 234
    Tucson, AZ 85712
    [email protected]
    Attachments
    Annalisa Masunas
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:12 PM
    I too strongly oppose this change. I support and endorse the Comment filed by the Arizona Chapter of the American Academy of Matrimonial Lawyers (AAML), as well as the Comment filed by Judge Sakall, in opposition to this proposed Rule change.

    Annalisa Moore Masunas
    Attorney at Law
    Moore, Masunas & Moore, P.L.L.C.
    (520) 318-0001
    135 S. Stratford Drive
    Tucson, Arizona 85716
    [email protected]
    John Herrick
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:14 PM
    John Herrick
    16165 N 83rd Ave Ste 200
    Peoria, AZ 85382
    (602) 264-1001
    I oppose the elimination of the peremptory change of judge as it relates to family law. I agree with the comments of Judge Sakall and of the American Academy of Matrimonial Lawyers. This change is not good for our clients.
    Jennifer G. Gadow
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:25 PM
    Jennifer G. Gadow
    2201 E. Camelback, Suite 650
    Phoenix, AZ 85016
    602-955-1515
    [email protected]
    016186

    I oppose this change and the peremptory right to one change of judge should be preserved in family court cases. In an effort to ensure access to justice for litigants, they should have the opportunity to strike an assigned judge on one occasion.

    I support and endorse the Comments filed by Judge Sakall in opposition to this Rule change. They are well reasoned and consistent with ensuring all parties have a fair trial. I also support and endorse the Comment in opposition to be filed by the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML).
    Brian S. Kelley
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:33 PM
    Brian S. Kelley
    AZ Bar #033960
    Ryan Rapp Underwood & Pacheco, PLC
    3200 N. Central Ave., Ste. 2250
    Phoenix, Arizona 85012
    [email protected]

    I strongly oppose this proposed change to the Arizona Rules of Family Law Procedure, and I support the comment submitted by the Arizona Chapter of the AAML.
    Lisa McNorton
    New Member
    Posts:1 New Member

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    29 Apr 2021 02:42 PM
    I oppose this change and the peremptory right to one change of judge should be preserved in family court cases.

    I support and endorse the Comments filed by Judge Sakall in opposition to this Rule change, and I support and endorse the Comment in opposition filed by the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML) and the Pima County Bar Association.

    Lisa C. McNorton
    SBN 019900
    McNORTON FOX, PLLC
    4400 E. Broadway #602
    Tucson AZ 85701
    (520) 327 - 3122
    Jen Mihalovich
    New Member
    Posts:1 New Member

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    29 Apr 2021 06:04 PM
    I strongly oppose this change. I support and endorse the Comment filed by the Arizona Chapter of the American Academy of Matrimonial Lawyers (AAML), as well as the Comment filed by Judge Sakall in opposition to this Rule change.

    Jennifer Mihalovich
    AZ Bar No. 020243
    Stewart Law Group
    3115 S. Price Road, Suite 111
    Chandler, AZ 85248
    480-498-5463
    [email protected]
    Daniel Stratman
    New Member
    Posts:1 New Member

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    30 Apr 2021 01:10 PM
    I oppose the rule change . i think this comment sums it up best for me. "I oppose this amendment as it would apply to family law cases. Family law matters, especially concerning child custody (now known as legal decision-making and parenting time) are highly discretionary. Even if they heard the same evidence and made identical findings of fact, different judges might enter very different orders. Given the greatly deferential appellate review, parties have no effective recourse. Because of the degree of discretion involved in custody matters, judges' personal life experiences, philosophies regarding parental autonomy vs. child protection, inherent biases, etc. particularly affect how particular judges might rule in custody cases. I have practiced family and child welfare law for 44 years and rarely exercise a peremptory notice of change of judge (and see them only rarely from other Pima County attorneys). But it remains an important tool and enhances public confidence in the judicial system. It has been many years since I practiced criminal and general civil law, but I would urge you to leave the peremptory challenge in place for family law cases."

    I oppose this rules petition. The premptory right to change judges should be preserved. I support and endorse the other comments filed in opposition aswell.

    Daniel Stratman
    [email protected]
    16421 N. Tatum Boulevard, Suite 127
    Phoenix, Arizona 85032
    Dorian L Eden
    New Member
    Posts:1 New Member

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    30 Apr 2021 01:32 PM
    Doren L. Eden
    10201 S 51st St Ste 270
    Phoenix, AZ 85044
    (480) 637-0668


    I oppose this Rules Petition and the peremptory right to change of judge should be preserved in family court cases. Family law grants significant discretionary choices to a judge. As lawyers, we learn a judge's bias and opinions about these discretionary choices. In order to protect future clients, we need to maintain the right to preemptively challenge for change of judge. I support and endorse the Comment in opposition filed by the Arizona chapter of AAML, as it very well details the very negative impact on family law cases and litigants.
    Olabisi “Bisi” Onisile Whitney
    New Member
    Posts:1 New Member

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    30 Apr 2021 01:43 PM
    I strongly oppose this change. The peremptory right to change of judge should be preserved in family court cases. I support and endorse other comments filed in opposition to this Rule change.

    Olabisi Whitney
    Attorney & Counselor at Law
    16421 North Tatum Boulevard, Suite 127
    Phoenix, Arizona 85032
    Phone: (602)687-6248
    [email protected]
    Aris Gallios
    New Member
    Posts:1 New Member

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    30 Apr 2021 04:33 PM
    I oppose this Rules Petition because the peremptory right to change of judge should be preserved in family court cases. I support and endorse the Comment in opposition filed by the Arizona chapter of AAML.

    Aris J. Gallios
    State Bar No. 010619
    3131 E. Camelback Road, Suite 230
    Phoenix, Arizona 85016
    Telephone (602) 852-5565

    Gloria L. Cales
    New Member
    Posts:1 New Member

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    30 Apr 2021 06:36 PM
    I vehemently oppose this Rules Petition and the peremptory right to change of judge should absolutely be preserved in family court cases. I support and endorse the comment in opposition filed by the Arizona chapter of AAML.


    Gloria L. Cales, SBN 10802
    16515 South 40th Street, Suite 141
    Phoenix, Arizona 85048
    480-889-3600
    [email protected]
    State Bar of Arizona
    Basic Member
    Posts:141 Basic Member

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    30 Apr 2021 10:33 PM
    Lisa M. Panahi, Bar No. 023421
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, AZ 85016-6288
    (602) 340-7236
    [email protected]
    Attachments
    Diana Cooney
    New Member
    Posts:36 New Member

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    03 May 2021 12:38 PM
    ELIZABETH BURTON ORTIZ
    EXECUTIVE DIRECTOR
    ARIZONA PROSECUTING ATTORNEYS' ADVISORY COUNCIL (APAAC)
    3838 N. CENTRAL AVENUE, SUITE 850
    PHOENIX, AZ 85012
    PHONE: 602-542-7222
    FAX NO: 602-274-4215
    [email protected]
    (BAR NO. 012838)

    R-21-0006

    COMMENT OF THE ARIZONA PROSECUTING ATTORNEYS’ ADVISORY COUNCIL IN THE MATTER OF:
    PETITION TO AMEND RULE 10.2, ARIZONA RULES OF CRIMINAL PROCEDURE
    Attachments
    Deborah Serrata
    New Member
    Posts:14 New Member

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    03 May 2021 01:50 PM
    ALLISTER ADEL
    MARICOPA COUNTY ATTORNEY

    Kenneth N. Vick
    Chief Deputy
    225 West Madison Street
    Phoenix, Arizona 85003
    Telephone: (602) 506-3800
    [email protected]
    (State Bar No. 017540)
    (Firm State Bar No. 00032000)

    PETITION TO AMEND VARIOUS RULES OF PROCEDURE RELATED TO THE PEREMPTORY CHANGE OF JUDGE

    R-21-0006 - MARICOPA COUNTY ATTORNEY’S COMMENT IN OPPOSITION

    Attachments
    Stephanie Ryan
    New Member
    Posts:1 New Member

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    03 May 2021 03:11 PM
    As a public defender, I oppose this rule change. Though I personally use 10.2 only once a year or less, the times I have done so have provided crucial emotional support for my clients. Criminal defendants have very little control over their cases and the individuals involved; as a result they often feel helpless, especially if they are “repeat” defendants who have had a prior bad experience with the justice system. Rule 10.2 gives clients some sense of control, even slight, in that it opens the door to a conversation about their assigned judge and what to expect from that courtroom. It puts at least one decision into the defendant’s hands, which boosts their faith that they will be treated fairly and justly.

    Any rule can be abused, and I have no objection to an amendment allowing for penalties for such for individuals. However, the current restrictions on 10.2 motions already provide for management of that abuse within the system. Time limitations on a 10.2 motion assist with calendar management, the inability to pick the next-assigned judge discourage judge-shopping, and the restriction to one 10.2 per case requires parties to consider whether it is truly appropriate. A complete repeal of the 10.2 provision will only serve to undermine defendant trust in the justice system, which could have unintended consequences in the form of additional bar complaints to be processed, additional appeals and petitions for post-conviction relief, and other matters that will clog the court system significantly more than 10.2 motions currently do.

    As a matter of promoting confidence in the justice system and in the interest of court efficiency, I oppose this rule change.

    Stephanie Ryan
    33 N Stone Ave 9th Floor
    Tucson, AZ 85701
    [email protected]
    520-724-6933

    Paul McGoldrick
    New Member
    Posts:1 New Member

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    03 May 2021 06:40 PM
    Submitted on behalf of:
    American College of Trial Lawyers
    Paul J. McGoldrick - State Committee CHair
    [email protected]


    The Arizona Chapter of the American College of Trial Lawyers strongly opposes the proposal to eliminate a party’s longstanding right to change a judge in litigated cases. The proposed rule changes have elicited strong and unanimous negative reaction from our members. Please see attached correspondence.
    Attachments
    David Euchner
    New Member
    Posts:29 New Member

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    03 May 2021 07:14 PM
    ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
    DAVID J. EUCHNER, SB#021768
    [email protected]
    Pima County Public Defender’s Office
    33 N. Stone Ave., 21st Floor
    Tucson, AZ 85701
    (520) 724-6800
    Attorney for Arizona Attorneys for Criminal Justice

    Attached is the comment of Arizona Attorneys for Criminal Justice (AACJ) opposing this petition.
    Attachments
    Jennifer Perkins
    New Member
    Posts:1 New Member

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    03 May 2021 07:58 PM
    Hon. Jennifer M. Perkins (023087)
    Arizona Court of Appeals, Division One
    1501 W. Washington Street
    Phoenix, Arizona 85007
    (602) 452-6760
    [email protected]

    The judges listed below submit this comment in our individual capacity and not on behalf of the Arizona Court of Appeals.

    We have reviewed comments both for and against the proposed changes. We recognize the good faith of the proponents who seek to advance administrative efficiency in our courts. But we believe that the availability of peremptory challenges to judges is an access to justice issue. And as between administrative efficiency and access to justice, we believe the latter must prevail.

    We therefore oppose Petition 21-0006.

    Hon. Michael J. Brown, Hon Jennifer M. Perkins, Hon. James B. Morse, Hon. David D. Weinzweig, Hon. D. Steven Williams, Hon. Brian Y. Furuya
    Kristin Fitzharris
    New Member
    Posts:3 New Member

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    03 May 2021 08:05 PM
    Attached please find Southern Arizona Legal Aid, Inc.'s comment on this proposed rule change.

    Kristin Fitzharris
    Managing Attorney
    Domestic Relations and Immigration Units
    2343 E. Broadway Blvd, Ste 200
    Tucson AZ 85719
    520-623-9465 x 4125
    [email protected]
    Attachments
    Rebecca Johnson
    New Member
    Posts:1 New Member

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    03 May 2021 08:08 PM
    Rebecca R. Johnson
    P.O. Box 469
    616 S. Eighth Avenue
    Safford, AZ 85548
    (928) 428-7323
    [email protected]
    State Bar No. 24182

    Comment attached.
    Attachments
    Barry D. Halpern
    New Member
    Posts:3 New Member

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    03 May 2021 10:55 PM
    Barry Halpern
    Snell & Wilmer, LLP
    One Arizona Center
    400 E. Van Buren, Suite 1900
    Phoenix, Arizona 85004-2202
    602-382-6000
    602-382-6070
    [email protected]
    #005441

    Attorneys Barry D. Halpern, Brett W. Johnson, Tracy A. Olson, and Claudia E. Stedman submit this Comment in Opposition to R-21-0006 on behalf of the Arizona Medical Association, Arizona Osteopathic Medical Association, and the Arizona Chamber of Commerce and Industry.
    Attachments
    Alex Heveri
    New Member
    Posts:1 New Member

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    04 May 2021 12:12 AM
    I oppose this Rule change as it relates to Criminal cases. I have been a defense attorney for 29 years. During that time, I have observed why this Rule is vital to secure the ends of justice and equality. For example, there have been judges who adopted personal sentencing policies that are harsh on a type of offender. I observed two outlier judges whose sentencing policy was to impose one year in jail as part of probation for all persons before them that were convicted of aggravated DUI. Defendants before every other judges only served four months in jail as part of probation. Thus, if you were randomly assigned to those two judges, you would have to serve an extremely harsh and disparate sentence. These rules were adopted to assist defendants to obtain fair and just proceedings, in every type of case. The ability to procedurally move to change a judge is vital to meet that end. There is no case law to challenge these types of blatantly disproportionate sentencing practices since judges have wide latitude in imposing a lawful sentence. The Rule allows defense lawyers to practice law instead and take action when necessary instead of simply informing a client about how bad their luck is.

    Alex Heveri
    Pima County Legal Defender's Office
    [email protected]
    Alison Atwater
    New Member
    Posts:1 New Member

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    04 May 2021 01:43 PM
    I oppose this Rules Petition, and the peremptory right to change of judge should be preserved in family court cases.

    Alison Atwater, #027945
    Atwater Law PLLC
    2550 W. Union Hills Dr.
    Suite 350-8881
    Phoenix, AZ 85027
    623-850-3732
    [email protected]
    Richard L. Basinger, Esq.
    New Member
    Posts:1 New Member

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    06 May 2021 07:29 PM
    This proposed change to this long-standing Rule should not occur for either Civil or Criminal. Through the years my clients and I have experienced many fine Judges who listen carefully, read pleadings carefully and make great effort to understand the facts and apply the correct law. However I have also, in the Civil practice, experienced Judges in both Maricopa who do not listen to or understand the facts and /or law and have made atrocious rulings. There are numerous examples.
    Maricopa: (A few)
    1. Judge issued a Stay on a Deed of Trust foreclosure resultant of a Title Company not paying off my Client at the COE. After full hearing with another competent Judge who understood, real property law, there was a ruling in my Client's favor with an award of attorney's fees and costs with detailed findings of fact and law. Upon appeal, both the Court of Appeals and Supreme Court upheld the Judgment and also awarded fees and costs and issued sanctions against the other attorney who had justified the Appeal for reason of Judge G's ruling. One Court of Appeals Judge, with a real estate background stated that Judge G was just plain wrong. I thereafter Noticed off Judge G. without subjecting clients to such consternation and out of pocket fees and costs.
    2. A newly assigned Judge with over 2 feet of pleadings in front of him, who stated he was giving 5 minutes argument to each attorney and made completely incorrect decisions. We managed to have him taken off the case using the peremptory strike because of timing. Another Superior Court Judge who read the pleadings and had appropriate argument reversed almost 80% of the rulings. Thereafter, we could Notice the Judge, to prevent subsequent Clients from being subjected to such atrocities and expenses.
    3. A Judge who refused to follow on point Supreme Court decisions, including one which was a case adverse to him as an attorney. His reasoning was that he never did agree with the Supreme Court's decision, and we could appeal the decision. The Client was not in the position to do so, based on timing and expense. I could thereafter notice him without subjecting Clients to such unjustified acts.

    Mohave: Most of the Judges are very good. But there can always be the exceptions.
    1. I was warned by attorneys to stay away from a Judge. I thought he couldn't be "that bad". In a Civil case in which I represented a Property Owner verses an Association, Judge C neither understood the facts or applicable law, including without limitation that under applicable law a HOA Board should not make decisions in closed executive sessions (admitted) deciding therewith he did not need to apply Open Meeting Law, made decisions arbitrarily overriding State Water Law including decisions of ADWR compliant with law, and other erroneous rulings. Therewith, my Clients were assessed fees and costs and thereafter based on their economic conditions and being totally "turned off" by their experience with the Judicial System as they experienced it. I thereafter filed Notices, including for a number of Probates transferred to him, and had to file extensive pleadings to finally have him removed. I later found out he was the most Noticed Judge for both Civil and Criminal Cases. Without the Notice provision, to many would have been needlessly subjected to the emotional consternation and needless financial expenses of his actions.
    2. There is another example of a pro-per individual with whom I consulted, who was "hammered" by the trial Judge, and did get a complete reversal in the Appellate Court(s). That Judge who also had attorneys Notice him, has retired.

    IT IS TOO HARD, EXPENSIVE, SLOW AND TENUOUS TO REMOVE A JUDGE FOR CAUSE.

    I implore this Court not to change this rule. Vehicles should not be removed from all peoples' use because some abuse the. Guns should not be removed from all people because statically a few people abuse them. Likewise, the Preemptory Strike provision should not be abolished because a few attorneys may abuse it.

    Richard L. Basinger, Attorney
    Basinger Legal Services, PLC
    441 Astor Ave
    Kingman, AZ 86409
    (928) 692-4771

    Glenn Halterman
    New Member
    Posts:1 New Member

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    10 May 2021 06:31 PM
    I oppose this Rule change; the peremptory right to one change of judge should be preserved in family court cases.

    I support and endorse the Comment filed by Judge Sakall, et al., in opposition to this Rule change, and I support and endorse the Comment in opposition filed by the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML).

    Glenn D. Halterman, #025318
    Ellsworth Family Law, P.C.
    1630 S. Stapley Drive, Suite 200
    Mesa, AZ 85204
    (480) 635-8700
    [email protected]
    Kristin Fitzharris
    New Member
    Posts:3 New Member

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    12 May 2021 05:31 PM
    Our link is broken so here is the text of our letter opposing this rule change:
    3 May 2021

    Committee of Presiding Judges
    c/o Administrative Office of the Courts
    1501 W. Washington, Suite 411
    Phoenix, AZ 85007
    (602) 452-3301
    [email protected]

    Dear Committee of Presiding Judges:

    Southern Arizona Legal Aid, Inc., joins the Pima County Bar Association, the Arizona chapter of the American Academy of Matrimonial Lawyers (AAML), Judge Sakall, and other esteemed colleagues in opposing this rule change petition. Family Law attorneys have used this rule sparingly to achieve a more equal forum for specific clients in specific situations and little evidence of abuse of this rule has been presented. This is especially true in the smaller counties where we practice where the relationship between Judges and the bar relies on the maintenance of ethical practice by lawyers appearing frequently before the bench. Reputation is of paramount importance and this operates as a control on any lawyer frequently abusing the rule for purposes of delay. As others have pointed out, judges are human and we cannot expect them to maintain super-human objectivity. In rare cases, this rule has been necessary to achieve a more just result for low-income and diverse clients who historically have experienced systemic and often implicit oppression and bias.

    As our colleague, Ann M. Haralambie has pointed out, the personal and discretionary nature of family law cases can lead to contrasting results for the same family in front of different judges with their varying backgrounds and personal beliefs. Without this rule, if the litigant does not notice the judge, the litigant could be stuck with potentially unfair results without recourse to appellate relief given the deference given to trial court discretion. Alternatively attorneys, or worse, individuals appearing pro per, would have to ask a judge to recuse themselves and state the cause on the record. They would be reliant on the judges themselves to rule on their own potential bias, which they may not be aware of, to the detriment of the client (and potentially the lawyer’s reputation). The current rule does not require a judge to rule on his or her own potential implicit bias and this is sometimes the most peaceful way to achieve justice in an imperfect human system. Judicial economy must give way to an infrequently used tool that offers a way of putting a person on more equal footing in court while their lives, freedom, finances, future, and custody of their children are being decided by an honorable yet human person. It is heartening to see the unity in the judiciary and bar opposing this rule change.

    Sincerely,

    /s/Anthony Young
    Anthony Young
    Executive Director
    Southern Arizona Legal Aid Inc.
    2343 E. Broadway Blvd, Ste 200
    Tucson AZ 85719
    520-623-9465 x 4101
    J. Greene
    New Member
    Posts:13 New Member

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    27 May 2021 06:42 PM
    Filed on behalf of:
    Committee of Presiding Judges
    c/o Administrative Office of the Courts
    1501 W. Washington, Suite 411
    Phoenix, AZ 85007
    (602) 452-3301
    [email protected]
    Attachments


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