Nancy Bourke v. Roger H. Contreras

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

ROGER H. CONTRERAS,
Appellee,

v.

NANCY BOURKE,
Appellant.

No. 2 CA-CV 2023-0146-FC
Filed August 9, 2024

Appeal from the Superior Court in Cochise County
No. DO200901390
The Honorable Timothy B. Dickerson, Judge

AFFIRMED

COUNSEL

Pahl & Associates, Tucson
By Danette R. Pahl
Counsel for Appellee

Nancy Bourke, Sierra Vista
In Propria Persona
 CONTRERAS v. BOURKE
Opinion of the Court

OPINION

Presiding Judge O’Neil authored the opinion of the Court, in which Judge
Brearcliffe concurred and from which Judge Sklar dissented.

O’ N E I L, Presiding Judge:

¶1 Nancy Bourke appeals from an order designating her a
vexatious litigant and imposing pre-filing restrictions in proceedings
related to the dissolution of her marriage to Roger Contreras. She argues
the judge who issued the order had a conflict of interest. She also contends
the order lacks an evidentiary basis and violates due process. We affirm.

Background

¶2 We view the evidence in the light most favorable to sustaining
the superior court’s findings. See Vincent v. Nelson, 238 Ariz. 150, ¶ 17 (App.
2015). In 2009, Contreras filed a petition to dissolve his marriage to Bourke
in Cochise County Superior Court. See In re Marriage of Contreras & Bourke,
No. 2 CA-CV 2014-0158, ¶ 2 (Ariz. App. Aug. 13, 2015) (mem. decision).
Since the dissolution of their marriage, Bourke and Contreras, who are the
parents of a minor child, have engaged in “almost non-stop, ferociously
contested litigation.” In re Marriage of Contreras & Bourke, No. 2 CA-CV
2019-0205-FC, ¶ 2 (Ariz. App. June 17, 2021) (mem. decision).

¶3 Contreras filed a motion requesting that Bourke be
designated a vexatious litigant in 2019. The presiding judge, after recusing
himself from the dissolution case in 2020, apparently learned about the
vexatious litigant motion in late 2021. Noting that a vexatious litigant
designation must be made by the presiding judge or a designee, the judge
invited briefing. Contreras took no further action at that time, so the judge
dismissed the motion in early 2022. When Contreras later renewed the
motion in December 2022, the same presiding judge heard it. After
allowing time for responsive pleadings, the presiding judge entered an
order in May 2023 designating Bourke a vexatious litigant and restricting
her from filing “any motions or notices” in the dissolution case without the
express permission of the court hearing the dissolution case.

¶4 Bourke appealed. Ordinarily, because the vexatious litigant
designation is entered by an administrative order, we would be limited to

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Opinion of the Court

special action review.1 Madison v. Groseth, 230 Ariz. 8, n.8 (App. 2012). In
this case, however, the superior court’s findings of vexatious conduct and
the resulting limitations were limited exclusively to Bourke’s conduct in the
dissolution case. Thus, the order designating Bourke a vexatious litigant is
essentially a form of injunctive relief, and we have jurisdiction under A.R.S.
§ 12-2101(A)(5)(b).

Discussion

¶5 Bourke’s appeal is limited to the order designating her a
vexatious litigant. “Arizona courts possess inherent authority to curtail a
vexatious litigant’s ability to initiate additional lawsuits” by imposing pre-
filing restrictions. Madison, 230 Ariz. 8, ¶ 17. The inherent powers of the
judiciary do not depend on any statute. State ex rel. Mahoney v. Superior
Court, 78 Ariz. 74, 77 (1954) (court’s “inherent powers” are “powers which
were not given by legislation and which no legislation can take away”).
Nevertheless, our legislature has also enacted A.R.S. § 12-3201, which
confers an additional source of authority to “designate a pro se litigant a
vexatious litigant,” restricting the litigant from filing “a new pleading,
motion or other document without prior leave of the court.” Because the
superior court cited the statute as the basis for its order, we review the order
primarily through that lens.

I. Judicial Disqualification

¶6 Bourke first argues that the presiding judge was biased in
favor of Contreras. She claims the judge “admitted his inability to be
impartial” when he voluntarily recused himself from the dissolution case,
which she asserts was due to a conflict of interest related to Contreras. She
further asserts the judge’s actions in the vexatious litigant proceeding were
“void ab initio” because of his previous recusal.

¶7 Whatever the merits of Bourke’s claim that the presiding
judge was biased, the judge’s actions in the vexatious litigant proceeding
were not automatically void. The fact that a judge erred by hearing a case

1We lack jurisdiction over administrative orders. Madison v. Groseth, 230 Ariz. 8, n.8 (App. 2012); see A.R.S. § 12-2101. Bourke asserts the superior
court erred by “publishing” the vexatious litigant designation in an
administrative order and asks this court to “order the immediate de-
publication” of the order. Because we do not have jurisdiction over the
administrative order, we do not address this argument.

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Opinion of the Court

does not mean the judge lacked the power to act. See Taliaferro v. Taliaferro, 186 Ariz. 221, 222-23 (1996) (failure to honor peremptory notice of change
of judge, “even if . . . erroneous,” cannot shrink “the power of the court to
entertain [the] action” and cannot be challenged on appeal); cf. State v.
Schrock, 149 Ariz. 433, 439-40 (1986) (criminal verdict not void even though
received by recused judge in violation of prior version of Rule 10.2, Ariz. R.
Crim. P.). Moreover, even assuming further action in the dissolution case
would have been improper after recusal, it does not follow that the judge
exceeded his authority by acting on the vexatious litigant motion when it
was later referred to him as presiding judge. Section 12-3201(A) provides
that a vexatious litigant motion must be heard by “the presiding judge of
the superior court or a judge designated by the presiding judge of the
superior court.” Thus, when Contreras filed his renewed motion,
regardless of which judge was hearing the dissolution case, it was for the
presiding judge to either decide the motion or designate a different judge
to do so. See A.R.S. § 12-3201(A); cf. Harnage v. Browning, 256 Ariz. 387, ¶¶ 7-
8 (2023) (case “assigned” to judge scheduled to hear trial or specific legal
issue).

¶8 The circumstances of this case are unique, insofar as the
motion to designate Bourke a vexatious litigant was based primarily on her
conduct in a single case from which the presiding judge had previously
recused. We need not decide, however, whether the presiding judge’s
recusal from the dissolution case as an assigned judge also required him to
recuse from the related vexatious litigant proceeding. Even when genuine
grounds for disqualification exist, the means for a party to challenge a judge
for cause is by timely filing an affidavit alleging statutory grounds for
disqualification. See John Munic Enters., Inc. v. Laos, 235 Ariz. 12, ¶ 4 (App.
2014) (judicial bias argument waived by failure to request disqualification
under A.R.S. § 12-409 or in motion for reconsideration); § 12-409; Ariz. R.
Fam. Law P. 6.1; see also Ariz. R. Civ. P. 42.2. Thus, to the extent the prior
recusal served as cause to believe the judge was biased or otherwise
disqualified, Bourke was required to file an affidavit seeking a change of
judge for cause within twenty days of her discovering such grounds. § 12-
409; Ariz. R. Fam. Law P. 6.1(a), (c); see also Ariz. R. Civ. P. 42.2(b), (d). Short
of that, Bourke could have filed a notice of change of judge as a matter of
right. Ariz. R. Fam. Law P. 6; see also Ariz. R. Civ. P. 42.1; Harnage, 256 Ariz.
387, ¶¶ 7-8.

¶9 Notwithstanding the presiding judge’s recusal from the
dissolution case, Bourke took no action when he heard the initial vexatious
litigant motion and invited briefing. When Contreras subsequently filed

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his renewed motion, Bourke knew no later than by January 10, 2023, that
the motion would be heard by the same judge. On that date, Bourke filed
a request with the presiding judge asking that he dismiss Contreras’s
renewed motion. She was aware then of the judge’s prior recusal. She
mentioned it, in passing, in her response to the vexatious litigant motion on
February 10, 2023; but she did not request reassignment or recusal, formally
or otherwise. Instead, she litigated the motion on the merits, through her
response and through numerous related pleadings, until the judge entered
a ruling in May 2023. Only now, for the first time on appeal, does Bourke
raise her argument that the judge was biased.

¶10 Bourke’s failure to raise the issue below not only deprived the
superior court of an opportunity to address the substance of any purported
conflict, it also deprives us of both a decision and record against which to
assess Bourke’s allegation of bias beyond the fact of the judge’s recusal.
Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“errors not raised in the trial
court cannot be raised on appeal” because court “should be afforded the
opportunity to correct any asserted defects before error may be raised on
appeal”). Based on the plain operation of the rules, Bourke has waived her
claim. Ariz. R. Fam. Law P. 6.1(c); see Ariz. R. Civ. P. 42.2(d); John Munic
Enters., Inc., 235 Ariz. 12, ¶ 4.

¶11 We recognize that no mere procedural rule can strip away the
right to a trial before a fair and impartial judge. Marsin v. Udall, 78 Ariz.
309, 312 (1955). The right can, however, be waived. Id. And our rules of
procedure “prescribe the conditions under which a party may be said to
have consented that his case be tried before a particular judge, i. e., whether
he has waived his right to challenge the fairness of the judge, provided it
does not operate to deprive him of the right.” Id. We would not apply
waiver, for example, where application of the rules would effectively
deprive a party of an opportunity to challenge a judge for cause. E.g., id.
(under older rule, failure to file affidavit at least three days before trial as
required did not waive right because litigant “did not know who the trial
judge was to be in time to comply”).2 But so long as a party knows about

2The dissent’s reliance on State v. Emanuel, 159 Ariz. 464 (App. 1989),

is inapposite for this reason. There, the defendant had no opportunity to
file a written motion challenging the judge before the sentencing hearing
because the defendant only learned about the judge’s extrajudicial
investigation during the course of the hearing. Emanuel, 159 Ariz. at 466.
When the defendant discovered what the judge had done, and before
imposition of sentence, the defendant promptly “interrupted the trial

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the grounds for disqualification and has an opportunity to challenge a
judge for cause, see id., the failure to timely file an affidavit waives the
challenge, see John Munic Enters., Inc., 235 Ariz. 12, ¶ 4. Although a trial
court nonetheless has discretion to consider an untimely challenge for
cause, State v. Carver, 160 Ariz. 167, 172 (1989), by the time a judge has heard
evidence or decided the ultimate issues in dispute, “it is too late to
disqualify him on the ground of bias and prejudice.” Marsin, 78 Ariz. at
315; see also State v. Quintana, 92 Ariz. 308, 311 (1962).

¶12 Here, of course, Bourke never raised the issue before the
superior court at all. She raised it in the first instance on appeal. “This, we
have repeatedly held, cannot be done.” Smith v. Rabb, 95 Ariz. 49, 54 (1963).3
Bourke’s passing reference to the fact of the judge’s recusal was not
sufficient. See Carver, 160 Ariz. at 172 (litigant “[p]lacing his perceptions
and concerns ‘on the record’” not sufficient to be deemed challenge for
cause). “The privilege to challenge the judge’s fairness carries with it the
concomitant right to willingly submit to trial.” Marsin, 78 Ariz. at 312.
Bourke’s passing comment highlights that when she proceeded to litigate
the motion on the merits without a challenge for cause, she did so knowing
the judge had previously recused. Id. (“Of course, one may with
knowledge of the facts, consent that his case be tried before a judge he
thinks is biased and prejudiced.”) She voluntarily relinquished her right to
challenge the judge. See id.

¶13 Our dissenting colleague effectively treats Rule 2.11 of the
Code of Judicial Conduct, see Ariz. R. Sup. Ct. 81, R 2.11, as a separate basis
to disqualify a judge, independent of § 12-409 and not subject to the
timeliness and waiver provisions of the rules governing challenges for

judge” and orally moved to disqualify him. Id. The judge denied the
motion. Id. The court of appeals therefore opined that “‘waiver’ is not a
viable claim or defense where a violation . . . is raised prior to actual
sentencing.” Id. at 468. It did not suggest that such a challenge could be
raised for the first time on appeal. See id. at 468-69.
3The dissent cites Conkling v. Crosby, 29 Ariz. 60 (1925), to suggest

otherwise. But our supreme court has rejected that argument, noting that
“even in the Conkling case, the challenge was made before the lower court
had entered final judgment.” Smith, 95 Ariz. at 54. In any event, the present
rules governing timeliness, which now prescribe the conditions for waiver
of challenges for cause, were not in effect when Conkling and Smith were
decided. See Ariz. R. Fam. Law P. 6.1(c); see also Ariz. R. Civ. P. 42.2(d).

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cause. See Ariz. R. Fam. Law P. 6.1(c); Ariz. R. Civ. P. 42.2(d). The code
itself cautions against this approach when it provides that it is not
“intended to be the basis for litigants to seek collateral remedies against
each other or to obtain tactical advantages in proceedings before a court.”
Ariz. R. Sup. Ct. 81, Scope. The statute and rules governing judicial
disqualification allow removal of a judge for bias or prejudice only if it
would deny a party a fair trial. § 12-409; see Ariz. R. Fam. Law P. 6.1(a) (“A
party seeking a change of judge for cause must establish grounds by
affidavit as required by A.R.S. § 12-409.”); Ariz. R. Civ. P. 42.2(b). We
believe the dissenting opinion conflates a judge’s discretion to recuse with
a party’s right to seek disqualification.

¶14 Applying Rule 2.11(A), our colleague suggests a prior recusal
is enough that a judge’s impartiality might reasonably be questioned,
triggering a duty to recuse. But even if we were to treat the Code of Judicial
Conduct as independent grounds for disqualification, our supreme court
has explained that a judge’s “impartiality might reasonably be questioned”
based on an “appearance of interest or prejudice” only “when the judge
abandons his judicial role and acts in favor of one party or the other.”
Carver, 160 Ariz. at 172-73. It is not obvious that a previous recusal, even in
the same case, is enough to demonstrate such bias. A judge may voluntarily
recuse for reasons that are not grounds for disqualification. See Zuniga v.
Superior Court, 77 Ariz. 222, 224 (1954) (“[A] judge may . . . recuse himself
even though the reason given might not be sufficient to form the basis of a
legal disqualification.”). In this case, we can only speculate as to whether
the reasons for the presiding judge’s earlier recusal from the dissolution
case would have applied to the vexatious litigant proceeding. Those
reasons might not have been relevant to that proceeding. They might no
longer have existed by the time the judge heard the motion. Indeed, they
might not have been disqualifying at all.

¶15 Regardless, even claims of actual bias may be waived. E.g.,
Marsin, 78 Ariz. at 312. We decline to hold that a claim that falls short of
the requirements of § 12-409 should evade waiver when a substantive claim
of actual bias would not. Even if a prior recusal is disqualifying under the
code, Bourke was no less required to timely raise the issue than if the judge
was disqualified for any other reason. A judge’s independent obligation to
disqualify himself applies whenever “disqualification is required.” Ariz. R.
Sup. Ct. 81, R 2.11 cmts. 1, 2. A meritorious claim of disqualification,
therefore, necessarily implicates the judge’s own duty not to hear a case.
Yet that duty does not obviate a party’s obligation to timely raise the issue
upon discovery. See Ariz. R. Fam. Law P. 6.1; Ariz. R. Civ. P. 42.2. Nor does

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it negate the waiver provisions of our rules governing challenges for cause.
See Ariz. R. Fam. Law P. 6.1(c); Ariz. R. Civ. P. 42.2(d). Waiver is
meaningless if it applies only to meritless claims.

¶16 We are similarly unpersuaded that a voluntary recusal is
analogous to a change of judge as a matter of right. See Ariz. R. Fam. Law
P. 6; Ariz. R. Civ. P. 42.1. Even if we could find that an analogy controls
where a rule does not apply, this one does not hold. When a party files a
proper peremptory notice of change of judge, the judge’s removal from the
case is compulsory, not voluntary: the rules specifically require the judge
to “proceed no further in the action.” Ariz. R. Fam. Law P. 6(g)(1); Ariz. R.
Civ. P. 42.1(f)(1). The rules impose no such requirement on a judge who
voluntarily recuses, nor do they limit a judge’s later exercise of jurisdiction.
Indeed, where a judge wrongly dishonors a proper peremptory notice, our
supreme court has rejected the argument that the judge’s actions are
without jurisdiction or are otherwise voidable on appeal. Taliaferro, 186
Ariz. at 222-24 (clarifying language from older cases stating that a judge’s
removal upon an affidavit is jurisdictional); see also State v. Ingram, 239 Ariz.
228, ¶¶9-13 (App. 2016). Instead, where a proper notice is not honored,
parties must seek immediate relief by special action “or forever hold their
peace.” Taliaferro, 186 Ariz. at 223-24 & 224. Even when a party timely
challenges a judge’s decision to hear a case after a peremptory notice, by
the time the judge has made a decision on the merits, “it is too late in the
day to be worrying about who tried the case, short of true challenges for
cause” as provided in the rules. Id. at 223; see also Ingram, 239 Ariz. 228, ¶ 9.

¶17 Nor is a judge’s obligation upon a timely affidavit for cause
analogous here, as the dissent suggests. See Ariz. R. Fam. Law P. 6.1(d)(3);
see also Ariz. R. Civ. P. 42.2(e)(3). Bourke filed no such affidavit. Even if she
did, as we have explained, she would have been required to show sufficient
grounds under § 12-409. When a party obtains a change of judge based on
an oral request, we treat it as a peremptory change of judge as a matter of
right. Ariz. R. Fam. Law P. 6(c)(2); Ariz. R. Civ. P. 42.1(b)(2). We cannot
agree that a judge’s voluntary recusal, in the absence of any request at all,
“has the same effect” as either a peremptory notice or an affidavit for cause.

¶18 No Arizona court has ever bound a judge to a prior voluntary
recusal. In Scheehle v. Justices of the Supreme Court of Arizona, 211 Ariz. 282,
293-95 & 295 (2005), our supreme court considered “a motion to disqualify”
four supreme court justices, at least one of whom had previously decided
to recuse voluntarily the last time the same case had come before the court.
Our supreme court concluded that the previously recused justice was not

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“bound by that decision,” instead examining whether the complaining
party had demonstrated legal or factual grounds requiring disqualification.
Scheehle, 211 Ariz. at 293-94, 300-01 & 301; see also State v. Mincey, 141 Ariz.
425, 442-43 (1984) (affirming denial of defendant’s motion for change of
judge for cause where judge had voluntarily recused from sentencing,
refused to recuse from motion for new trial, and then withdrew voluntary
recusal after reading defendant’s motion). Ultimately, we need not decide
here whether a voluntary recusal is disqualifying or is otherwise binding
on a judge. We conclude only that Bourke waived her challenge by
straightforward application of the rules. See Ariz. R. Fam. Law P. 6.1(c); see
also Ariz. R. Civ. P. 42.2(d).

¶19 We do not discount the concerns raised by our dissenting
colleague for the perceived impartiality of the judiciary. It is, if nothing
else, debatable whether a judge who has previously demonstrated a
willingness to recuse is more suspect than a judge who has not recused at
all. But we have never before allowed suspicion alone to disqualify a judge,
absent an ultimate showing by a preponderance of the evidence that a party
would be denied a fair trial by a judge’s bias or prejudice. Costa v. Mackey, 227 Ariz. 565, ¶ 12 (App. 2011); see § 12-409(B)(5); CSA 13-101 Loop, LLC v.
Loop 101, LLC, 233 Ariz. 355, ¶ 31 (App. 2013) (recusal did not “taint [prior]
rulings with the appearance of impropriety”); Jimenez v. Wal-Mart Stores,
Inc., 206 Ariz. 424, ¶¶ 16-17 (App. 2003) (subsequent recusal did not raise
substantial question about impartiality). In cases where a party suspects
bias but does not allege disqualification in an affidavit for cause, in addition
to the right to request recusal or bring a special action on the merits, our
rules provide abundant protection in the form of a peremptory notice of
change of judge as a matter of right. See Ariz. R. Fam. Law P. 6; Ariz. R.
Civ. P. 42.1. What the rules do not allow is for a party, aware that a judge
is precluded from hearing a case and with every opportunity to raise a
challenge, to pocket the mulligan, litigate the merits, await the results, and
try again with a different judge after raising the issue for the first time on
appeal. Cf. Taliaferro, 186 Ariz. at 223 (peremptory challenge may not be
treated as “a trump card which would later destroy the validity of the entire
proceeding”).

¶20 Our decision is not an endorsement of the presiding judge’s
choice to decide the vexatious litigant motion. Even if the presiding judge
believed he was not disqualified from hearing the vexatious litigant
proceeding, given his recusal from the related dissolution case, the judge
surely could have designated a different judge to decide it. See § 12-
3201(A). At a minimum, he could have made a record explaining his

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determination that grounds for disqualification did not exist. Cf. Ariz. R.
Sup. Ct. 81, R 2.11(C). But ultimately, even assuming his recusal from the
dissolution case disqualified him from hearing the vexatious litigant
proceeding, Bourke waived the issue by failing to timely raise it.4 See John
Munic Enters., Inc., 235 Ariz. 12, ¶ 4.

II. Vexatious Conduct

¶21 As to the merits of the decision, we review the superior court’s
order designating Bourke a vexatious litigant for an abuse of discretion. See
Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 9 (App. 2007)
(injunctive relief reviewed for abuse of discretion). “We defer to the court’s
findings of fact unless clearly erroneous, but we review de novo its legal
conclusions.” Id. Under § 12-3201, vexatious conduct includes: “[r]epeated
filing of court actions solely or primarily for the purpose of harassment,”
“[u]nreasonably expanding or delaying court proceedings,” and
“[r]epeated filing of documents or requests for relief that have been the
subject of previous rulings by the court in the same litigation.”

¶22 The superior court here found that four of Bourke’s pleadings
were “frivolous, not necessary, and resulted in unnecessary compl[ex]ity”
to the dissolution matter. Although Bourke broadly asserts the finding was
“ultimately based on insufficient evidence,” she fails to develop any
argument that the court’s findings concerning the four pleadings at issue
were erroneous or unsupported by the record. See Ariz. R. Civ. App. P.
13(a)(7)(A) (opening brief must contain argument “concerning each issue
presented for review, with supporting reasons for each contention” and
“citations of legal authorities” relied upon); Boswell v. Fintelmann, 242 Ariz.
52, n.3 (App. 2017) (failure to develop and support argument results in

4We reject Bourke’s contention that the presiding judge’s alleged bias

“constitutes structural error.” In criminal cases, structural error is error that
“deprive[s] defendants of ‘basic protections’ without which ‘a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or
innocence.’” State v. Ring, 204 Ariz. 534, ¶ 45 (2003) (quoting Neder v. U.S., 527 U.S. 1, 8-9 (1999)). Bourke cites no authority applying a structural error
analysis to an allegation of judicial bias in a civil case. Nor has she cited
any statute or rule permitting a party to raise grounds for disqualification
for the first time on appeal. Her argument is contrary to our statutes and
rules, under which the sole means to seek a change of judge for cause in a
civil action is by filing an affidavit in the superior court alleging one of
several statutory grounds for disqualification. § 12-409; Ariz. R. Civ. P. 42.2.

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waiver). Instead, Bourke asserts that the court’s “innumerable substantive
errors” may be shown by comparing “any objective facts . . . to the clearly
unsupported findings.” She also asserts it is “facially unbelievable” that
the court reviewed the voluminous record in the dissolution case before
issuing its ruling. Otherwise, the substance of her argument appears to be
that the court’s failure to conduct an evidentiary hearing “was a per se
refusal to issue [its ruling] on sufficient evidence.” We conclude the record
supports the court’s findings.

¶23 Bourke’s “Motion to Continue December 5, 2022 Hearing”
asked the trial court presiding over the dissolution case to reschedule an
evidentiary hearing because her “computer crashed” while she was
attempting to file her exhibits. In finding the motion vexatious, the superior
court reasoned that although “[t]his could have been a short motion,”
Bourke “included in it several of her complaints” concerning previous
decisions in the dissolution case. Indeed, Bourke offered little to explain
how the computer crash would interfere with her preparation for the
hearing, except to state that she “keeps her documents on her computer’s
hard drive.” Instead, she devoted much of the motion to grievances
concerning prior court decisions. Bourke devoted the opening paragraph
of the motion to complaining that the court had previously granted
continuances to Contreras for reasons that Bourke apparently found
inadequate. She also suggested that the court’s attorney fee awards had
resulted in her “living off of credit cards” and asserted that she could not
“seek assistance with exhibits and filed case documents because the parties
are gagged.”

¶24 Bourke’s “Motion to Terminate Appointment of [the Best
Interests Attorney]” similarly contained numerous complaints concerning
previous decisions in the dissolution case. The dissolution court had
denied Bourke’s earlier requests to terminate the minor child’s best interests
attorney (BIA) on largely the same grounds. Bourke stated that “[f]or
nearly four years now, this Court has encouraged the BIA’s bias and lies to
the detriment of a small child.” She asserted the court in the dissolution
case had “encouraged” the BIA “to deceive in order to please” Contreras,
whom Bourke described as an “abusive litigator.” She further accused that
court of “abusive behaviors” and criticized its denial of earlier requests for
relief, including her previous motion to terminate the BIA. Bourke
generally suggested that the court had not been even-handed in its
treatment of the parties in the dissolution case, stating that it had
“encourage[d] the BIA’s blind adherence to [Contreras]’s domestic violence
agenda.”

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¶25 Bourke’s “Motion for [the Dissolution Case] to Proceed
Publicly” likewise requested relief that had been subject to previous rulings
in the dissolution case. The dissolution court had sealed the case file and
closed hearings to the public, and it affirmed both decisions on subsequent
occasions. Again, Bourke utilized this motion as a means to express her
disagreement with various prior decisions. She accused one judge of
attempting to “exact revenge” against her, accused another judge of
“abuses,” argued that previous rulings had “driven [her] to poverty,” and
claimed that the court “defers to [Contreras]’s every whim.” She identified
the denial of her “Motion to Continue December 5, 2022 Hearing,”
discussed above, as an example of her unfair treatment, repeating her
complaint from that motion concerning the prior decision to grant a
continuance at Contreras’s request.

¶26 Finally, in her “Motion for Equal Treatment/Equal Limitation
of Parties’ Gag Order Hearings,” Bourke sought an order that the court in
the dissolution case would not hear Contreras’s allegation that Bourke was
in contempt for violating “gag orders.” Like her other motions, this one
went far beyond the specific request for relief or any arguments relevant to
it. Apart from the request for relief, the motion consists entirely of Bourke’s
complaints concerning the substance and procedure of various prior orders,
followed by straightforward allegations of judicial bias. After reciting a list
of complaints dating back more than a year, Bourke urged, “This Court
should not continue using the gag orders herein to hide its terribly
prejudicial behavior toward [Bourke] and the minor child.” She accused
the dissolution court of “twist[ing] facts, the law, and all reason to find ways
in which [Bourke] has not faithfully complied with” orders while allowing
Contreras “to break [them] with impunity.” She insisted that “[t]he
temporar[]y seal of this case should not be used as a weapon by this Court.”
The motion is devoid of either legal argument or citation to legal authority.
In its order finding the motion vexatious, the superior court concluded that
the motion “particularly illustrate[d] [Bourke]’s vexatious conduct”
because “[t]he requests made in [this] motion[] were previously denied.”
The court noted that Bourke had “repeatedly attempted to have the
proceedings opened to the public,” apparently taking the motion as another
of Bourke’s pleadings that challenged the order to close the dissolution case
to the public. Indeed, much of the motion reads as a series of complaints
challenging prior decisions related to that order and its enforcement.

¶27 The superior court did not abuse its discretion by concluding
that these four motions amounted to vexatious conduct. At a minimum,
and consistent with the court’s findings, the motions challenged matters

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Opinion of the Court

that had been the subject of previous rulings in the dissolution case. See
§ 12-3201(E)(1)(f). Moreover, as the court also found, Bourke’s motions
unreasonably expanded the proceedings with pleadings that largely served
as vehicles to air accusations against the court and Contreras. See § 12-
3201(E)(1)(b).

III. Due Process

¶28 Bourke also argues the superior court violated her right to due
process by failing to conduct an evidentiary hearing. Pre-filing restrictions
“must be entered sparingly and appropriately” and with respect for due
process. Madison, 230 Ariz. 8, ¶¶ 17-18 & 17. “[T]o ensure that a litigant’s
access to courts is not inappropriately infringed upon,” a pre-filing
restriction against a litigant requires: (1) “notice and an opportunity to
oppose the order”; (2) an adequate record of relevant cases and filings; (3)
“substantive findings as to the frivolous or harassing nature of the litigant’s
actions”; and (4) an order that is “narrowly tailored to closely fit the specific
vice encountered.” Id. ¶ 18 (quoting De Long v. Hennessey, 912 F.2d 1144,
1148 (9th Cir. 1990)). These requirements are grounded in the fundamental
right to access courts, see id. ¶¶ 17-18, and it necessarily follows that they
apply to pre-filing restrictions entered under either § 12-3201 or the court’s
inherent authority.

¶29 Here, the superior court permitted adequate time for Bourke
to file a response in opposition to the motion to designate her a vexatious
litigant, made a record of each pleading at issue, made substantive findings
concerning the conduct it found vexatious, and limited the pre-filing
restrictions to a single case. See Madison, 230 Ariz. 8, ¶ 18. Notably, Bourke
did not request an evidentiary hearing. She requested only the
“opportunity to oppose the order . . . through motion practice, during a
hearing, or both.” The court permitted Bourke that opportunity. Bourke
has not meaningfully explained how she was prejudiced by the lack of an
evidentiary hearing, given that the vexatious litigant designation depended
entirely on her own pleadings in the court file. See, e.g., Volk v. Brame, 235
Ariz. 462, ¶ 26 (App. 2014) (“Due process errors require reversal only if a
party is thereby prejudiced.”).

IV. Attorney Fees and Costs

¶30 Contreras requests his attorney fees and costs on appeal
under A.R.S. § 25-324(A), (B), and Rule 21, Ariz. R. Civ. App. P. We deny
his request for fees. As the prevailing party on appeal, Contreras is entitled
to recover his costs upon compliance with Rule 21. See A.R.S. § 12-341.

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Opinion of the Court

Disposition

¶31 We affirm the order designating Bourke a vexatious litigant.

S K L A R, Judge, dissenting:

¶32 Nancy Bourke was declared a vexatious litigant by a
presiding judge who had recused from the same case in which he entered
the vexatious-litigant order. The majority rightly questions whether that
judge should have entered that order. But it nevertheless concludes that
Bourke waived the issue on appeal. I disagree with this conclusion.

¶33 More fundamentally, I disagree with the majority about the
nature of this case. For the majority, the central issue is whether Bourke
properly invoked the procedure for challenging a judge for cause and
whether her asserted failure to do so results in waiver. But because this
case involves a judge who had already recused in the same case, I believe
we must instead focus on the effect of that recusal. I also do not believe we
should apply the discretionary doctrine of waiver in this context. Nor do I
believe that a for-cause challenge was required. Rather, our case law
provides that the recusal rendered the vexatious-litigant order voidable. I
conclude that by raising the issue on appeal, Bourke has rendered it void. I
therefore respectfully dissent.

I. Applicable Facts

¶34 The facts are undisputed. In early 2020, the case was
reassigned to the presiding judge due to conflicts with other judges. That
same day, without taking any other action, the presiding judge recused
himself. His recusal order did not specify a reason. By that point, all the
superior court judges in Cochise County had recused themselves, so the
court reassigned the case to a Pima County judge. The order doing so,
which came from the court administrator and was unsigned, stated that “a
conflict exist[ed]” because all the Cochise County judges had recused
themselves.

¶35 Nearly three years later, in December 2022, Contreras
renewed an earlier motion—which had apparently been overlooked—
seeking an order that Bourke was a vexatious litigant. That motion was
referred to the presiding judge, consistent with A.R.S. § 12-3201. After
issuing an initial order governing procedures for that motion, the presiding
judge granted it. Nowhere in either of those orders did the presiding judge
reference his prior recusal.

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Opinion of the Court

¶36 Bourke’s response to the motion did reference it. In the
context of arguing that Contreras’s motion amounted to judge-shopping,
she wrote that Contreras “wishes for the Presiding Judge, who has already
recused himself due to conflicts of interest, to address the merits of [a
different motion], instead of the assigned judicial officer.” She did not,
however, explicitly ask that the presiding judge re-recuse himself. Nor did
she seek a change of judge, either for cause or peremptorily.

II. Applicability of Waiver

¶37 The majority relies heavily on the doctrine of waiver. I
therefore first address why I would not apply waiver under these facts.

A. Scope and basis of recusal obligation

¶38 Addressing waiver requires placing the judicial recusal
obligation in the proper ethical context. The source of that obligation is
Rule 2.11(A) of the Code of Judicial Conduct, which is found at Rule 81 of
the Rules of the Supreme Court. Rule 2.11(A) provides, “A judge shall
disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned.” The rule also includes a
non-exclusive list of such circumstances. This obligation secures a party’s
foundational right to a trial presided over by an impartial judge as well as
the broader societal interest in ensuring that the judiciary is free of bias. See
Kay S. v. Mark S., 213 Ariz. 373, ¶ 36 (App. 2006) (requiring courts to
consider “risk of undermining public confidence in the judicial process” in
determining whether judgment should be vacated for failure to disqualify
judge).

¶39 Of particular interest, especially in light of the majority’s
conclusion concerning waiver, is a comment to Rule 2.11. It emphasizes,
“A judge’s obligation not to hear or decide matters in which disqualification
is required applies regardless of whether a motion to disqualify is filed.”
Code of Judicial Conduct, Rule 2.11, cmt. 2.

B. Relationship between recusal obligation and waiver
determination

¶40 Despite the comment’s “regardless” language, the majority
concludes that Bourke waived her challenge because she did not seek a
change of judge for cause under Rule 6.1 of the Arizona Rules of Family
Law Procedure. The majority is correct that this rule requires a party to file
an affidavit in support of its request “within 20 days after discovering that

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Opinion of the Court

grounds exist for a change of judge.” Ariz. R. Fam. Law P. 6.1(c). And it
does cite a case finding that a party waived the right to challenge a judge’s
purported bias by delaying in raising a challenge. John Munic Enters., Inc.
v. Laos, 235 Ariz. 12, ¶ 4 (App. 2014).

¶41 But neither the rule nor the case law require us to find waiver
in this context. Rather, our decision to apply waiver is discretionary.
Noriega v. Town of Miami, 243 Ariz. 320, ¶ 27 (App. 2017). We have declined
to do so in numerous circumstances, including where “consideration of an
issue better serves the public.” Ariz. All. For Retired Am., Inc. v. Crosby, 256
Ariz. 297, ¶ 10 (consideration serves the public). We have also done so
where a case raises a novel or pure issue of law. See, e.g., State v. Santillanes, 254 Ariz. 301, ¶ 28 (App. 2022) (vacated on other grounds by State v.
Santillanes, 256 Ariz. 480, ¶ 39 (2024) (novel issue)); Logan B. v. Dep’t of Child
Safety, 244 Ariz. 532, ¶¶ 9-11 (App. 2018) (legal issue).

¶42 Perhaps most importantly, we have also declined to apply
waiver in a context similar to this one, precisely because the issue
implicated the judicial-ethics rules. In that case, State v. Emanuel, 159 Ariz.
464, 468 (App. 1989), the judge had conducted independent research to
assist in a sentencing determination. Doing so was inconsistent with the
obligation contained in the applicable ethics code to “disqualify himself in
a proceeding in which his impartiality might reasonably be questioned.”
Id. at 467-68 (citing ABA Code of Judicial Conduct, Canon 3(c) (as amended
August 1977)). In declining to apply waiver, this court distinguished other
cases in which waiver had been applied, in part because they did not
involve violations of the judge’s obligation. Id. at 468. This court then
remanded for a resentencing by a different judge. Id. at 469.

¶43 I agree with the majority that Emanuel can be factually
distinguished. But its core conclusion—that we should not necessarily
apply waiver in cases involving judicial-ethics issues—has equal force here.
Whether a recused judge may reenter a case, even in the context of a
vexatious-litigant proceeding, is an important question that concerns the
impartiality and perceived impartiality of the judiciary. Nor, despite the
majority’s implication to the contrary, does the question require
development of a factual record. This court is equally capable as the trial
court of addressing the pure legal question about the effect of a prior
recusal. Moreover, applying waiver is inconsistent with the comment to
Rule 2.11, which imposes the recusal obligation regardless of a motion to
disqualify.

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Opinion of the Court

C. Whether affidavit for change of judge is proper
mechanism for challenging reentry of recused judge

¶44 Even if applying waiver might be appropriate in some
circumstances when a recused judge reenters a case, I am not convinced
that a party can waive the issue simply by not filing a Rule 6.1 affidavit. A
party may file such an affidavit only for the reasons specified in A.R.S.
§ 12-409(B). A prior recusal could arguably fit under some of the reasons.
See, e.g., § 12-409(B)(2) (“judge is otherwise interested in the action”), (B)(5)
(“party filing the affidavit has cause to believe and does believe that on
account of the bias, prejudice, or interest of the judge he cannot obtain a fair
and impartial trial”). But Section 12-409 does not purport to be a complete
list of circumstances in which judges are disqualified. Zuniga v. Superior
Court, 77 Ariz. 222, 224 (1954) (providing that recusal does not necessarily
equate to existence of grounds for disqualification). Rule 2.11 contains a
broader but still non-exclusive list. See Code of Judicial Conduct, Rule
2.11(A) (“A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned.”). In my
view, a judge having previously recused in the same case fits within Rule
2.11, even if it falls outside Section 12-409. Otherwise, recusals could be
revocable. But in the majority’s view, litigants faced with such a
circumstance would have no remedy.

¶45 This case illustrates the problem. As the majority notes, the
presiding judge was not required to give a reason for his initial recusal, and
he did not do so. The only clue is the court administrator’s order that
references a “conflict.” But even that order is of limited value. It does not
describe the conflict’s nature, and it does not clarify whether the court
administrator conferred with the presiding judge before using the word
“conflict.”

¶46 On this record, Bourke had no concrete basis to argue that the
presiding judge’s prior recusal rendered him biased or otherwise subject to
disqualification under Section 12-409. The record does not reveal anything
to support such an argument. And once the presiding judge recused,
Bourke had no need to develop or preserve such a record. She could
reasonably rely on the recusal itself as a basis for concluding that the judge
would not reenter the case.

¶47 Moreover, what if Bourke had filed such a request, then not
prevailed? The majority contemplates this possibility, even stating, “It is
not obvious a prior recusal, even in the same case, is enough to
demonstrate” the necessary bias. Based on that reasoning, the majority

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Opinion of the Court

apparently believes that, at least in some cases, a recused judge may revoke
the recusal and reenter a case. As I explain in the next section, I disagree.
But at a minimum, I would not penalize Bourke with waiver simply because
she failed to perceive such a counterintuitive possibility. Our case law on
waiver is sufficiently flexible to relieve her of this penalty.

III. Remedy for Order Improperly Entered by Recused Judge

¶48 Regardless of a waiver, Bourke is not entitled to relief unless
she has a substantive basis for it. Because I do not believe Section 12-409 is
applicable, I disagree with the majority that we must analyze that question
based on that statute. I would look instead to the rules and case law
governing judicial recusal.

A. Rules of procedure and case law concerning effect of
recusal

¶49 The rules of procedure do not address the effect of a judge’s
reentry into a case after recusal. The closest analogs are Rules 6(g) and
6.1(d) of the Arizona Rules of Family Law Procedure. Rule 6(g)(1) sets forth
a judge’s responsibilities after a party has filed a proper notice of change of
judge as a matter of right. It requires the judge to “proceed no further in
the action” except to make immediately necessary orders. Rule 6.1(d)(3)
imposes a similar requirement on judges who are the subject of a successful
affidavit seeking to change judge for cause. See also Ariz. R. Civ. P. 42.1(f),
42.2(e)(3) (similar requirements in civil cases); Ariz. R. Crim. P. 10.1(b)(2),
10.2(b)(3) (similar requirements in criminal cases). These requirements
suggest that when the presiding judge recused himself—an action that has
the same effect as disqualification under the rules—his power to act did not
extend to entering the vexatious-litigant order.

¶50 Relying on the same language in the criminal version of this
rule, this court concluded in Nordstrom v. Leonardo, 214 Ariz. 545 (App.
2007), that a presiding judge who had been peremptorily removed from a
case lacked authority to consider a later for-cause challenge to a different
judge. We concluded that once the presiding judge had been peremptorily
removed, his obligation to “proceed no further” rendered him without legal
authority to decide the for-cause challenge. Id. ¶¶ 11-16. This was true even
though his ruling on the for-cause challenge was in his capacity as presiding
judge, as expressly contemplated by the applicable rule. Id. ¶ 14 (citing
Ariz. R. Crim. P. 10.1(c)).

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Opinion of the Court

¶51 A much older case from our supreme court reaches a similar
conclusion. That case, Conkling v. Crosby, 29 Ariz. 60 (1925), addresses the
consequences of a judge “actually laboring under a disqualification.” Id. at
68-69. It explains that “no affidavit is necessary to the consummation of a
disqualification which already exists,” so “the failure to file the affidavit in
any manner [cannot] cure an existing disqualification or clothe the judge
with authority to preside notwithstanding.” Id. at 69. Rather, the actions
of that judge are “voidable.” Id. at 68. Thus, as long as the disqualified
judge’s actions are challenged “in due season,” they are subject to being set
aside. Id.

B. Voidability of orders entered by recused judge

¶52 Taken together, these cases stand for the proposition that once
a judge has been removed or recused from a case, that judge’s subsequent
rulings are voidable upon timely challenge. See also Hordyk v. Farley, 94
Ariz. 189, 195 (1963) (holding that where trial court proceeded after party
filed “affidavit of bias,” issue “is jurisdictional in nature” such that writ of
prohibition may issue). I agree with the majority that they are not
automatically void even in the absence of a challenge.

¶53 But in my view, raising the challenge on appeal is sufficiently
timely under the circumstances of this case, especially because Bourke
alerted the presiding judge to his prior recusal. This is consistent with
Conkling, in which the challenge was raised after trial, though as the
majority notes, before judgment was entered. Conkling, 29 Ariz. at 63. I
therefore believe our case law compels us to vacate the presiding judge’s
vexatious-litigant order and remand so a different judge may consider it.

¶54 Numerous other jurisdictions share this view. Some even go
further, providing an absolute rule that orders entered by recused judges
are void. See, e.g., Marts v. Khan, 344 So. 3d 224, 225 (La. Ct. App. 2022)
(holding that judgment entered after trial court recusal was “an absolute
nullity”); Olson v. Eco Marine Contractor, LLC, 319 So. 3d 788, 790 (Fla. Dist.
Ct. App. 2021) (“An order entered by a judge after recusal is void,” except
where it is merely ministerial act); Stringer v. United States, 233 F.2d 947, 948
(9th Cir. 1956) (“In our judgment, once having disqualified himself for
cause, on his own motion, it was incurable error for the district judge to
resume full control and try the case.”).

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Opinion of the Court

C. Addressing the majority’s remaining points

¶55 The majority raises two other issues that are worthy of
comment. First, it relies on the view that the vexatious-litigant issue is
distinct from—though related to—the underlying family-law action, such
that the family-law recusal would not apply. I agree that in many cases,
vexatious-litigant motions arise out of a litigant’s conduct over multiple
proceedings. I offer no comment on the effect of a prior recusal to that type
of motion.

¶56 But this was not such a motion. It solely concerned Bourke’s
conduct in this case. And the resulting order limited her ability to file
documents in this case alone. Under these circumstances, I cannot agree
that the vexatious-litigant motion was anything other than a continuation
of the underlying proceeding. See also Rath v. Rath, 974 N.W.2d 652, ¶ 31
(N.D. 2022) (concluding that judge who had been disqualified could not
consider vexatious-litigant motion).

¶57 Second, the majority seeks support for its position in Scheele
v. Justs. of the Sup. Ct. of Ariz., 211 Ariz. 282 (2005). In that case, a certified
question from a federal case that named all five justices as defendants who
had all recused themselves. Id. at 294. Years later, the supreme court
received a new certified question in the same case. Id. Only two of the
defendant-justices remained on the court, and one did not recuse. Id. at
294-95, 300-01. The court concluded that her recusal was not required in
answering the new certified question. Id. at 301.

¶58 Scheele, however, presented two unique circumstances not
relevant here. First, the two certified questions were distinct proceedings
before the supreme court, though part of a single federal-court proceeding.
See id.; see also Scheele v. Justs. of Sup. Ct. of Ariz., 203 Ariz. 520 (2002). This
case, by contrast, involved a single proceeding.

¶59 Second, and more importantly, Scheele implicated the rule of
necessity, which allows a judge to hear a matter despite grounds for
disqualification where no other judge could hear it. Scheele, 211 Ariz. at
296-97; see also Code of Judicial Conduct, Rule 2.11, cmt. 3 (incorporating
rule of necessity). That rule is not applicable here, where Section 12-3201(A)
allows the presiding judge to designate a different judge to decide the
vexatious-litigant motion.

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Opinion of the Court

***

¶60 Ultimately, I cannot agree with the majority that voluntary
recusal is of less permanence or consequence than a disqualification for
cause. Litigants and the public should be confident that when a judge
recuses from a case, the judge will not later reenter that same case. Any
other outcome risks the appearance of bias. That risk is a sufficient reason
not to apply the discretionary doctrine of waiver—a doctrine that the
majority needlessly elevates over the important public interest at issue. I
would therefore remand so a different judge, designated by the presiding
judge under Section 12-3201(A), can reconsider the vexatious-litigant
motion. See Hordyk, 94 Ariz. at 195 (allowing disqualified judge to enter
order transferring case to different judge). I respectfully dissent.

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