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

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

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

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

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

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.

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

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, 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.

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.

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.