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Arizona Rules of Civil Procedure: Rule 42 Right to Change of Judge for Second Evidentiary Hearing

Posted by Ted A. Schmidt | Jun 24, 2019 | 0 Comments

Arizona Rules of Civil Procedure: Rule 42 Right to Change of Judge for Second Evidentiary Hearing

Coffee v. Superior Court, No. 1 CA-SA 18-0251 (App. Div. I, June 20, 2019) (J. Weinzweig)    Successful party on appeal or special action may notice the trial judge where that judge is ordered to reconsider a prior ruling based upon new evidence.

In this special action, petitioner father challenged the trial court's order that his minor son immediately move from Arizona to Kansas to live with his mother. The Arizona Court of Appeals upon special action found that the petitioner had been denied due process and ordered the superior court to hold a second evidentiary hearing where petitioner is afforded due process, consider the mother's request for modified child support and the father's counter-petition to modify legal decision-making.  Petitioner then noticed the trial judge pursuant to Rule 42.1(e) of the Arizona Rules of Civil Procedure.  The trial court denied the request for a new judge so petitioner again sought special action relief. The Arizona Court of Appeals accepted jurisdiction and granted petitioner relief. 

First the court of appeals noted that jurisdiction never transfers from the superior court to the court of appeals even when the court of appeals accepts jurisdiction of a special action.  A special action represents a separate, original proceeding where an appellate court examines the action or inaction of public officials and may issue orders affecting future proceedings in a case. Unless the court of appeals issues a stay the trial court may otherwise proceed in the underlying action during special action proceedings.

Rule 42.1(e) authorizes a party to obtain a new trial judge “[i]n actions remanded from an appellate court [if] the appellate decision requires a new trial and the movant has not previously removed a  trial judge in the action.  .  .  . Rule 42.1(e) hinges on principles of fairness and impartiality.  It is concerned about trial judges who might prejudge an issue on remand, having already  tackled  the  issue,  heard  the  arguments  and reached  a conclusion. .  .   It also guards against the ‘possibility of judicial bias where trial judges might begrudge the parties who successfully seek review of their rulings.”

Because here the court of appeals decision required the trial court to reconsider issues already decided based upon evidence not previously considered, petitioner has a right to exercise his first notice of change of judge under rule 42. Significantly, the court of appeals interpreted the word “trial” broadly enough to include a contested evidentiary hearing finding no “magic” in the specific terms “trial” or “reversal.”  Critical to the court of appeals decision was the fact that the trial court was being asked to reconsider a ruling it had already made based upon new evidence and was not being asked to simply explain a ruling it had already made. Similarly an order that the trial court perform ministerial function would not open the door for a change of judge. Finally, there need be no showing that the trial judge is biased or  “upset” with a movant who successfully challenges their decision on appeal or by special action in support of a rule 42.1(e) motion.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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