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Last Post 12 May 2021 05:31 PM by  Kristin Fitzharris
R-21-0006 Petition to Amend Various Rules of Procedure Related to the Peremptory Change of Judge
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Author Messages
State Bar of Arizona
Posts:99

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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:28 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:10 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:13 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
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