Edward P. Bolding v. State of Arizona

FILED BY CLERK
IN THE COURT OF APPEALS DEC 19 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

EDWARD P. BOLDING, )
)
Petitioner, )
)
v. )
) 2 CA-SA 2006-0085
HON. HOWARD HANTMAN, Judge of ) DEPARTMENT B
the Superior Court of the State of )
Arizona, in and for the County of Pima, ) OPINION
)
Respondent, )
)
and )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
)

SPECIAL ACTION PROCEEDING

Pima County Cause No. CR-20061270

JURISDICTION ACCEPTED; RELIEF GRANTED

Robert J. Hooker, Pima County Public Defender
By Robert J. Hirsh Tucson
Attorneys for Petitioner

Terry Goddard, Arizona Attorney General
By Kimberly H. Ortiz Tucson
Attorneys for Real Party in Interest

B R A M M E R, Judge.
¶1 The respondent judge denied petitioner Edward Bolding’s peremptory notice

of change of judge filed against him pursuant to Rule 10.2, Ariz. R. Crim. P., 16A A.R.S.

As Bolding “has no equally plain, speedy, or adequate remedy by appeal of a denial of notice

of change of judge, special action review is appropriate.” Medders v. Conlogue, 208 Ariz.

75, ¶ 1, 90 P.3d 1241, 1242 (App. 2004); see Ariz. R. P. Spec. Actions 1(a), 17B A.R.S.

Accordingly, we accept jurisdiction. Concluding the respondent judge proceeded “without

or in excess of [his] jurisdiction or legal authority,” we grant relief. Ariz. R. P. Spec. Actions

3(b).

Factual and Procedural Background

¶2 Bolding, a former attorney, is charged with engaging in a scheme and artifice

to defraud his former client, Marjorie Hagen. The Pima County Public Defender was

appointed to represent Bolding, and attorney Robert Hirsh was assigned to Bolding’s case.

Hagen had met with Hirsh in 2004, while Hirsh was in private practice. She had been

seeking legal representation in a civil action against Bolding related to the same events at

issue in the criminal case. Based on the belief that Hagen had disclosed confidential

information to Hirsh during this meeting, the state sought to disqualify the Public Defender’s

office from representing Bolding. See E.R. 1.18, Ariz. R. Prof’l Conduct, Ariz. R. Sup. Ct.

42, 17A A.R.S.

¶3 The judge to whom Bolding’s case had been assigned (the trial court) found

Hagen “was at least a prospective client under Ethical Rule 1.18,” and referred the matter “to

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the criminal assignment judge for [a] special assignment regarding the determination of

whether Mr. Hirsh and his office should be disqualified.” The trial court instructed the

assigned respondent judge to examine Hagen “in camera and ex parte[] to ascertain whether

any confidences were exchanged between [her] and [Hirsh] and to determine whether [Hirsh]

is ethically prohibited from continuing to represent Mr. Bolding.” The trial court directed

that, “in the event the preliminary results of this review indicate that [Hirsh] should be

disqualified,” the respondent judge was to permit the defense to present evidence for the

respondent judge’s “ultimate determination.”

¶4 Bolding filed a notice requesting a change of judge from the respondent judge,

pursuant to Rule 10.2. The state moved to strike the notice, asserting the notice was “against

a judge not assigned to the case.” The respondent judge agreed, stating, “Rule 10.2 . . .

applies only to the assigned trial judge,” and denied Bolding’s request for a change of judge.

This petition for special action followed.

Discussion

¶5 In his special action petition, Bolding argues the respondent judge exceeded

his legal authority by ruling on Bolding’s request for a change of judge. He also contends

the respondent judge’s ruling that Rule 10.2 does not apply to this situation was incorrect.

Bolding’s latter argument requires us to determine whether Rule 10.2 permits a peremptory

change of a judge assigned to decide a specific legal issue separately from the rest of the case

or if that rule permits only a peremptory change of the judge assigned to hear the entire case.

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Rule 10.2(a) states, in pertinent part: “In any criminal case other than a death penalty case,

each side is entitled as a matter of right to a change of judge.”

¶6 “In construing procedural rules promulgated by our supreme court, we employ

the traditional tools of statutory construction.” Medders, 208 Ariz. 75, ¶ 9, 90 P.3d at 1244.

We look first to the plain language of the rule. In re MH 2004-001987, 211 Ariz. 255, ¶ 15,

120 P.3d 210, 213 (App. 2005). “[P]rovisions [of a court rule] must be considered in the

context of the entire [rule] and consideration must be given to all of the [rule’s] provisions

to determine the [supreme court’s] intent manifested by the entire [rule].” Medders, 208

Ariz. 75, ¶ 10, 90 P.3d at 1244, quoting Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d

1169, 1173 (App. 1993). By its plain language, Rule 10 applies to a judge assigned to a case.

Rule 10.1(a) permits reassignment “if a fair and impartial hearing or trial cannot be had by

reason of the interest or prejudice of the assigned judge.” Rule 10.2(c) provides, in relevant

part, that a notice of change of judge must be filed within ten days of “[a]rraignment, if the

case is assigned to a judge and the parties are given actual notice of such assignment at or

prior to the arraignment,” or after “actual notice to the requesting party of the assignment of

the case to a judge.”

¶7 The rule, however, does not specify whether “assignment of the case”

necessarily limits its application to the judge to whom the entire case is assigned, or to a

judge to whom a discrete part of the case is assigned. Because the rule is ambiguous, we

consider other factors, namely, the rule’s “‘context, subject matter, effects, consequences,

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spirit, and purpose.’” Bergeron ex rel Perez v. O’Neil, 205 Ariz. 640, ¶ 16, 74 P.3d 952, 958

(App. 2003), quoting Vega v. Sullivan, 199 Ariz. 504, ¶ 8, 19 P.3d 645, 648 (App. 2001).

¶8 Bolding argues the respondent judge’s reliance on Medders in ruling Rule 10.2

does not apply was misplaced. In Medders, the petitioner had filed a motion to modify his

release conditions with the judge assigned to his criminal case. 208 Ariz. 75, ¶ 3, 90 P.3d

at 1242. The order setting the hearing, however, was not signed by the original judge

assigned to the case, but by the respondent judge, and that judge conducted the hearing. Id.

The original judge subsequently vacated the trial date and scheduled the trial before the

respondent judge. Id. ¶ 4. Medders requested a Rule 10.2 change of judge, which the

respondent judge denied, finding Medders had, pursuant to Rule 10.4(a), “waived his right

to a peremptory change of judge by appearing before him at the contested release-conditions

hearing.” Id.

¶9 We concluded Medders had not waived his right to a peremptory challenge

because the respondent judge had not yet been assigned to Medders’s case when he

conducted the release conditions hearing. Id. ¶ 10. We reasoned that Rule 10.4 applies only

to “the judge who is assigned the case for purposes of Rule 10.2 at the time of the contested

hearing.” 1 Id. The facts before us are similar to those in Medders. The respondent judge

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We also stated, “Medders presumably could not have filed a notice of peremptory
change of the respondent judge upon receiving notice . . . that the respondent judge would
hear the release-conditions matter.” Medders, 208 Ariz. 75, ¶ 7, 90 P.3d at 1243. This
language, although equivocal, could be read to support the respondent judge’s ruling here.
However, we did not have to decide that question in Medders and do not consider it authority
for that proposition.

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here was involved in this case for the limited purpose of determining whether Hirsh should

be disqualified. In Medders, however, there was no suggestion that the assigned judge had

relinquished the authority to review, for example through a request for modification of

release conditions, the respondent judge’s ruling on Medders’s release conditions.

Conversely, the trial court here explicitly instructed the respondent judge to make the

“ultimate determination” whether Hirsh should be disqualified.

¶10 We noted in Medders that the situation there “may have arisen as an unintended

consequence of the [superior court’s] attempt to efficiently administer its docket by allowing

one division to hear relatively minor matters assigned to another division.” Id. ¶ 11. The

special assignment to the respondent judge here was not a product of general administrative

procedure, but a specific assignment to the respondent judge to hear and decide a specific

legal issue.

¶11 Moreover, the trial court here reassigned the disqualification issue “to avoid

having the trial judge tainted by . . . ex parte contact [with Hagen].” See, e.g., United States

v. Adams, 785 F.2d 917, 920 (11th Cir. 1986) (although “in some situations the trial judge

may find an ex parte conference necessary,” “court must insure that the conference is

carefully conducted so that no rights of the defendant are threatened”). And, although we

recognize an indigent defendant, unlike a defendant who does not require appointed counsel,

does not have the right to choose which attorney will be appointed to represent him, see

United States v. Gonzales-Lopez, ___ U.S. ___, ___, 126 S. Ct. 2557, 2561 (2006); Robinson

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v. Hotham, 211 Ariz. 165, ¶ 11, 118 P.3d 1129, 1132 (App. 2005), the trial court’s adopted

procedure was necessary to protect Bolding’s right to counsel in the face of the state’s effort

to disqualify his appointed attorney.

¶12 In Medders, we cited State v. Cozad, 113 Ariz. 437, 438, 556 P.2d 312, 313

(1976), for the proposition that the “assigned judge for Rule 10.2 purposes is [the] judge who

is scheduled to preside over trial.” Medders, 208 Ariz. 75, ¶ 10, 90 P.3d at 1244. Read out

of the context of Cozad, this language arguably supports the respondent judge’s decision.

Cozad, however, addressed whether the ten-day waiver provision in Rule 10.2(b) ran from

the date counsel was aware which judge would be assigned, rather than from the date the

judge “assum[ed] the calendar.” 113 Ariz. at 438, 556 P.2d at 313. Nothing in Cozad limits

Rule 10.2 to the judge assigned for trial. Nor does the rule itself have such a limitation. See

State v. Barnes, 118 Ariz. 200, 202, 575 P.2d 830, 832 (App. 1978) (party may change judge

pursuant to Rule 10.2 after guilty plea has been entered).

¶13 In its response to the special action petition, the state does not defend the

respondent judge’s reliance on Medders, and instead relies chiefly on State v. Tackman, 183

Ariz. 236, 902 P.2d 1340 (App. 1994). There, the appellants had pled guilty to trafficking

in stolen property and, as part of their plea agreements, had agreed to pay restitution to

identified victims. Id. at 237, 902 P.2d at 1341. The sentencing court appointed a court

commissioner “as a special fact-finding master to conduct the restitution hearing and report

his findings to the sentencing court.” Id. Both appellants filed a notice of change of judge

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pursuant to Rule 10.2, which the sentencing court denied, “holding the requests inappropriate

because [the commissioner] was to act only as a fact finder and not as a judge.” Id. On

appeal, Division One of this court held Rule 10.2 could not be used to challenge the

appointment, reasoning the sentencing court had “retained jurisdiction over each case” and

that “no assignment or reassignment to a different judge ever occurred.” Id. at 239, 902 P.2d

at 1343.

¶14 The state admits Tackman is not dispositive, but suggests that it is “persuasive

that a [Rule] 10.2 challenge to any judge who does not retain original jurisdiction over the

matter is improper.” Thus, the state reasons, because the trial judge here “never relinquished

his jurisdiction over the substantive criminal case,” Rule 10.2 does not apply. We disagree.

The court in Tackman recognized that “no provision exists for the peremptory removal of a

special master” but noted “safeguards remain for the protection of parties who are

dissatisfied with the person placed in that position. First, the parties have the right to contest

the special master’s findings within the time limits prescribed by statute. . . . Second, the

judge—the ultimate fact finder—remains subject to a peremptory challenge.” 183 Ariz. at

239, 902 P.2d at 1343. Those safeguards do not exist in the case before us. The special

master in Tackman had been instructed to report factual findings to the sentencing court.

Here, the respondent judge was instructed to rule on whether Hirsh should be disqualified.

That ruling, unlike the determinations by the respondent judge in Medders or the special

master in Tackman, was, by the trial court’s own instruction, not subject to its review.

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¶15 Neither Medders nor Tackman persuades us that Rule 10.2 does not apply to

a judge assigned to make a final determination of a specific legal question separately from

the rest of the case. Neither case decided the issue Bolding presents. Here, the trial court

assigned the case to the respondent judge to decide a specific legal question, and the

respondent judge’s decision was not subject to review by the trial court. Therefore, we

conclude the respondent judge was “assigned the case for purposes of Rule 10.2 at the time

of the contested hearing,” Medders, 208 Ariz. 75, ¶ 10, 90 P.3d at 1244, and that Rule 10.2

applies by its plain language.

¶16 “[A]ny provision relating to disqualification of judges must be given strict

construction to safeguard the judiciary from frivolous attacks upon its dignity and integrity

and to ensure the orderly function of the judicial system.” State v. Perkins, 141 Ariz. 278,

286, 686 P.2d 1248, 1256 (1984), overruled on other grounds, State v. Noble, 152 Ariz. 284,

287-88, 731 P.2d 1228, 1231-32 (1987). Although nothing in the record with which we have

been provided suggests the respondent judge is in any way biased, we agree with Division

One of this court that “a litigant is entitled to an impartial judge at any and all stages of the

proceeding.” Barnes, 118 Ariz. at 202, 575 P.2d at 832. Moreover, Rule 10.2 entitles a party

to a peremptory change of judge as a matter of right, Bergeron, 205 Ariz. 640, ¶ 17, 74 P.3d

at 958, “‘without the necessity of divulging details that could cause needless embarrassment

and antagonism or showing actual bias which may be difficult to prove,’” id. ¶ 23, quoting

Rule 10.2 cmt. to 2001 amendment (emphasis removed). To interpret Rule 10.2 as only

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applying to a judge to whom an entire case is assigned would unnecessarily abrogate this

important right. Again, we interpret court rules according to the principles of statutory

construction. Medders, 208 Ariz. 75, ¶ 9, 90 P.3d at 1244. Accordingly, we will not

“judicially create” an exception to the Rule’s plain meaning. State v. Ring, 131 Ariz. 374,

378, 641 P.2d 862, 866 (1982), and we see no textual or policy reason to draw distinctions

based on the scope of a judge’s assignment to a case. Assignment to the case, regardless of

the scope of the judge’s assignment, is all the rule requires.2

¶17 Moreover, Rule 10.1 permits a change of judge when “a fair and impartial

hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge.”

(Emphasis added.) Although we address here a request under Rule 10.2, we construe that

provision “in the context of the whole of Rule 10,” Medders, 208 Ariz. 75, ¶ 10, 90 P.3d at

1244, and the language of Rule 10.1 makes clear that Rule 10 applies not only to trials, but

to all other hearings as well. Furthermore, a preliminary proceeding in a criminal case, such

as a motion to suppress evidence, is often dispositive of the entire case. We see no reason

to limit Rule 10.2’s application to trials when other proceedings may be equally as important.

Accordingly, we conclude the procedures available pursuant to Rule 10.2 apply to the

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Although the state asserts it “believes that [Bolding’s] [Rule] 10.2 notice of change
of judge was improper forum shopping,” it has provided no evidentiary or legal support for
that allegation. Accordingly, we do not address it. See Ariz. R. P. Spec. Actions 7(i), 17B
A.R.S. (Rules of Civil Appellate Procedure apply to special actions); Ariz. R. Civ. App. P.
13(a)(6), (b), 17B A.R.S. (argument must contain citations to relevant legal authorities).

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respondent judge and that he exceeded his jurisdiction and legal authority by striking

Bolding’s notice of change of judge.

¶18 Because we find the respondent judge’s ruling was erroneous, we need not

address Bolding’s argument the respondent judge was without authority to rule on his notice

of change of judge. We reiterate the comment we made in Medders, however, that Rule 10

does not clearly explain if the judge subject to the Rule 10.2 notice may rule on the notice’s

timeliness, see 208 Ariz. 75, n.1, 90 P.3d at 1243 n.1, or, as in this case, whether the rule may

be invoked at all.3

¶19 We accept jurisdiction of this special action and grant relief. We direct the

presiding judge of the Pima County Superior Court to reassign the case consistent with this

opinion.

J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

PETER J. ECKERSTROM, Presiding Judge

PHILIP G. ESPINOSA, Judge

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We note, however, that a challenged judge may not exercise his or her “own
discretion in deciding whether to make the required reassignment.” Bergeron ex rel. Perez
v. O’Neil, 205 Ariz. 640, ¶ 17, 74 P.3d 952, 959 (App. 2003).

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