Contreras v. Bourke

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ROGER H. CONTRERAS,
Appellee,

v.

NANCY BOURKE,
Appellant.

No. CV-24-0217-PR
Filed August 21, 2025

Appeal from the Superior Court in Cochise County
The Honorable Timothy B. Dickerson, Judge (Retired)
No. DO200901390
REVERSED AND REMANDED WITH INSTRUCTIONS

Opinion of the Court of Appeals, Division Two
258 Ariz. 223 (App. 2024)
VACATED

COUNSEL:

Danette R. Pahl (argued), Pahl & Associates, Tucson, Attorney for Roger
H. Contreras

Nancy Bourke (argued), In Propria Persona
 CONTRERAS V. BOURKE
Opinion of the Court

JUSTICE CRUZ authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BOLICK,
BEENE, MONTGOMERY and KING joined.

JUSTICE CRUZ, Opinion of the Court:

¶1 Arizona judges must disqualify themselves in any proceeding
in which their impartiality “might reasonably be questioned.” Ariz. R. Sup.
Ct. 81, Code of Judicial Conduct (“CJCR”) Rule 2.11(A). In this case, after
other judicial officers in the county had recused themselves in an ongoing
family court matter, the presiding judge—who had also previously
recused—re-entered the case to rule on a motion to designate one of the
parties as a vexatious litigant.

¶2 We hold that once a judge recuses in a case, that judge
remains disqualified from presiding further in that same case unless the
judge first articulates the reasons why recusal is no longer required and
allows the parties an opportunity to object.

BACKGROUND

¶3 In December 2009, Roger Contreras and Nancy Bourke
initiated a marriage dissolution action. The superior court entered a decree
of dissolution in April 2011, after trial. Significant post-decree litigation
followed.

¶4 In February 2020, all Cochise County Superior Court judges,
including Judge Timothy Dickerson, recused from participation in the
matter. Notably, Judge Dickerson did not provide a reason on the record
for his recusal. The case was reassigned to a judge in Pima County.

¶5 In January 2021, this Court appointed Judge Dickerson to be
the presiding judge of the Cochise County Superior Court. In that role, he
appointed Contreras as a justice of the peace pro tempore in November
2022. He reappointed Contreras twice, in May 2023 and August 2023.

¶6 In December 2022, shortly after his first appointment by Judge
Dickerson, Contreras filed a motion to have Bourke designated a vexatious
litigant. Vexatious litigant determinations are generally made by the
presiding judge of the superior court in the county where the motion is

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Opinion of the Court

filed, rather than by the judge assigned to the particular case. See A.R.S.
§ 12-3201(A). A vexatious litigant determination is no insignificant matter.
It restricts a litigant’s participation in a case because “a vexatious litigant
may not file a new pleading, motion or other document without prior leave
of the court.” § 12-3201(B). Despite having previously recused himself
from the underlying dissolution case, Judge Dickerson chose to entertain
the motion. He provided no explanation on the record as to the basis of the
prior recusal or why recusal was no longer necessary.

¶7 In addressing the vexatious litigant motion, Judge Dickerson
found no evidentiary hearing was necessary but permitted supplemental
briefing. Bourke did not file a motion to disqualify but noted in passing
that Judge Dickerson had previously recused in the case. Bourke stated that
Contreras “wishes for the Presiding Judge, who already recused himself
due to conflicts of interest, to address the merits of the Motion, instead of
the assigned judicial officer.” In May 2023, Judge Dickerson ruled on the
motion, designating Bourke a vexatious litigant.

¶8 Bourke appealed the vexatious litigant determination. See
Contreras v. Bourke, 258 Ariz. 223 (App. 2024). In a split decision, the court
of appeals affirmed the trial court ruling, holding that Bourke had waived
any challenge to Judge Dickerson’s participation by failing to timely seek
disqualification under A.R.S. § 12-409, Arizona Rule of Family Law
Procedure 6.1(c), or Arizona Rule of Civil Procedure 42.2(d). Id. at 226–27
¶¶ 8, 10.

¶9 The majority did not address Bourke’s claim that, aside from
his recusal and re-entry into the case, Judge Dickerson’s earlier
appointment of Contreras as a justice of the peace pro tempore might raise
an independent basis to find a conflict requiring recusal. The dissent
opined that under CJCR 2.11(A), given his prior recusal, Judge Dickerson
had an independent duty to recuse himself from deciding the vexatious
litigant motion and, § 12-409 notwithstanding, waiver should not apply. Id.
at 233 ¶¶ 38–39, 237 ¶ 60 (Sklar, J. dissenting).

¶10 We granted review to resolve these issues of first impression
and statewide importance. We have jurisdiction pursuant to article 6,
section 5(3) of the Arizona Constitution.

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Opinion of the Court

DISCUSSION

A. Prior Recusal and Re-Entry

¶11 Bourke claims Judge Dickerson’s recusal from participating
in the dissolution action due to a purported conflict made him ineligible to
later re-enter the case in his new capacity as the county’s presiding judge to
decide the vexatious litigant motion.

¶12 We review de novo the interpretation of court rules. State v.
Whitman, 234 Ariz. 565, 566 ¶ 5 (2014). This Court interprets judicial ethics
rules using principles of statutory construction. See Phillips v. O’Neil, 243
Ariz. 299, 301 ¶ 8 (2017). “When a statute’s plain language is unambiguous
in context, it is dispositive.” In re Drummond, 257 Ariz. 15, 18 ¶ 5 (2024).

¶13 The CJCR 2.11(A) provides that:

(A) A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might
reasonably be questioned, including but not limited to the
following circumstances:

(1) The judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of facts that
are in dispute in the proceeding.
Comments 1 and 2 to CJCR 2.11 provide further clarification, stating in
relevant part:

1. Under this rule, a judge is disqualified whenever the
judge’s impartiality might reasonably be questioned, regardless
of whether any of the [enumerated conflicts in paragraphs
(A)(1) through (5)] apply.

2. 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.

(Emphases added.)

¶14 This Court articulated the standard to apply when deciding

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whether a judge’s impartiality might reasonably be questioned in State v.
Smith, 203 Ariz. 75, 79 ¶ 16 (2002):

If a situation is not one of those outlined in [CJCR 2.11(A)],
but nonetheless implicates impartiality, a judge should
consider “[w]hether an objective, disinterested observer fully
informed of the facts underlying the grounds on
which . . . disqualification [was] contemplated would
entertain a significant doubt that justice would be done in the
case.”

Id. (citation modified) (quoting Op. 96-14 at 1 Ariz. Sup. Ct. Jud. Ethics
Advis. Comm. (Nov. 21, 1996)). The same test was echoed in Opinion 98-02
of the Arizona Supreme Court Judicial Ethics Advisory Committee, which
provides: “[T]he test is whether an objective, disinterested, fully informed
observer would reasonably question the impartiality of the judge.” Op.
98-02 at 3 Ariz. Sup. Ct. Jud. Ethics Advis. Comm. (Mar. 24, 1998). Indeed,
“[o]ur system of justice depends for its survival on the support and
confidence of the public. It is important, therefore, that justice not only be
impartially dispensed but also that any question of unfairness or partiality
be avoided.” State ex rel. Corbin v. Superior Court, 155 Ariz. 560, 562 (1987).
A judge’s prior voluntary recusal and re-entry—when unexplained—leaves
doubts about the reasons for the recusal unresolved.

¶15 The plain language of the rules indicates that when a judicial
officer must disqualify himself or herself, the judge must do so regardless
of any action by the parties. This Court previously recognized that “each
[judge] has a continuing individual responsibility to exercise ‘considerable
introspection and intellectual honesty,’ in determining whether he or she
may appropriately sit upon any matter that comes before the [c]ourt.”
Scheehle v. Justs. of the Sup. Ct., 211 Ariz. 282, 301 (2005) (quoting Op. 98–02
Ariz. Sup. Ct. Jud. Ethics Advis. Comm. (Mar. 24, 1998)).

¶16 When a judge voluntarily recuses, CJCR 2.11(A) signals that
the judge acknowledges his or her impartiality might reasonably be
questioned. If the disqualification is for a reason other than the judge’s
“personal bias or prejudice concerning a party or a party’s lawyer, or
personal knowledge of facts that are in dispute in the proceeding,” the
parties, having been put on notice of the basis, may waive disqualification.
CJCR 2.11(A)(1), (C). And a disqualification that originally necessitates

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recusal generally does not forever bar a judge from re-entering a case if the
reasons for the disqualification no longer exist. See Scheehle, 211 Ariz. at 301
(holding that under the unusual circumstances of that case, which included
applying the rule of necessity, four justices who had previously recused
from considering a matter were not forever barred from re-entering the
same case).

¶17 CJCR 2.11(C) explains the step-by-step process a judge must
follow if the judge believes he or she may fairly preside over a matter in
which he or she was previously subject to disqualification:

A judge subject to disqualification under this rule, other than
for bias or prejudice under paragraph (A)(1), may disclose on
the record the basis of the judge’s disqualification and may
ask the parties and their lawyers to consider, outside the
presence of the judge and court personnel, whether to waive
disqualification. If, following the disclosure, the parties and
lawyers agree, without participation by the judge or court
personnel, that the judge should not be disqualified, the judge
may participate in the proceeding. The agreement shall be
incorporated into the record of the proceeding.

¶18 As previously mentioned, in February 2020, Judge Dickerson
initially recused from presiding over the parties’ family court matter; but
two years later, now in his new role as Presiding Judge, he re-entered the
same case and ruled on Contreras’ vexatious litigant motion. No
explanation was given to the parties as to any change in circumstance, nor
was any opportunity given for either party to be heard in opposition to this
re-entry into the case. The parties were entitled to such disclosure and to
have the opportunity to be heard. We hold that when a judge who
previously recused from a case later determines that recusal is no longer
warranted, he or she must advise the parties of his or her reasons for
re-entering the case and give them an opportunity to be heard.

B. Professional Relationship

¶19 Secondarily, Bourke also argues that Judge Dickerson’s prior
appointment of Contreras as justice of the peace pro tempore raises a
conflict of interest that categorically disqualifies Judge Dickerson from
determining any matter in their family case. Bourke did not meaningfully

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raise this issue before the trial court and has therefore waived it. See
§ 12-409; Ariz. R. Fam. Law P. 6.1(c); Ariz. R. Civ. P. 42.2(d). The court of
appeals did not address this belated claim.

¶20 Despite Bourke’s waiver, the facts of this unusual case
implicate judicial ethics and the public’s trust in our courts, and so we
exercise our discretion to entertain this secondary question solely to give
presiding judges guidance and clarity going forward. See Smith, 203 Ariz.
at 79 ¶ 12.

¶21 Under A.R.S. § 22-121(A), presiding judges appoint justices of
the peace pro tempore, and they also exercise administrative supervision
over the justice courts in their counties. See In re Presiding Judges’ Auth. to
Establish Ct. Sec. Pol’ys & Procs., Admin. Order No. 96–32 (1996). These
administrative responsibilities, along with the fact that the powers and
duties of the justice of the peace pro tempore are described as “the same as
a duly elected justice of the peace,” § 22-121(C), establish that the presiding
judge of a county superior court stands in a supervisory relationship to the
justices of the peace pro tempore.

¶22 Also, in appointing a justice of the peace pro tempore, the
presiding judge must determine that the appointee is a person “[o]f good
moral character.” See A.R.S. § 22-122 (describing the qualifications of
justices of the peace pro tempore). Therefore, because presiding judges are
directly involved in appointing justices of the peace pro tempore, they hold
more than an attenuated “limited professional relationship.” See Smith, 203
Ariz. at 79–80 ¶ 16 (finding that a “[l]imited professional relationship”
between a judicial officer and a court administrator who was not subject to
his supervision and merely worked in the same court building was
sufficiently attenuated “that an informed, disinterested observer would not
entertain significant doubt that justice would be done”). Accordingly, the
professional relationship between a presiding judge and his or her
previously appointed justice of the peace pro tempore may create the
appearance of a close association giving rise to an objection.

¶23 Here, by appointing Contreras as a justice of the peace pro
tempore, Judge Dickerson demonstrated his belief in Contreras’ character
and abilities just one month before Contreras filed his vexatious litigant
motion. The appointment created more than an attenuated professional tie
between Judge Dickerson and Contreras.

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¶24 Nonetheless, the presiding judge and justice of the peace pro
tempore professional relationship, without more, does not require recusal
in every case where a presiding judge has previously appointed a justice of
the peace pro tempore who now appears as a litigant.

¶25 The standard of “whether an objective, disinterested, fully
informed observer would reasonably question” the judge’s impartiality
remains applicable in these circumstances. Op. 98-02 at 3 Ariz. Sup. Ct. Jud.
Ethics Advis. Comm. (Mar. 24, 1998). And a party who challenges a
“judge’s impartiality must overcome the presumption that [superior court]
judges are free of bias and prejudice.” Stagecoach Trails MHC, L.L.C. v. City
of Benson, 232 Ariz. 562, 568 ¶ 21 (App. 2013) (citation omitted). To do so,
the challenging party must “set forth a specific basis for the claim of
partiality and prove by a preponderance of the evidence that the judge is
biased or prejudiced.” Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63 ¶ 29
(App. 2010) (quoting State v. Medina, 193 Ariz. 504, 510 ¶ 11 (1999)). Further
inquiry might very well reveal that there is no actual partiality shown in
favor of the appointee.

¶26 After a fact-intensive inquiry in Kay S. v. Mark S., 213 Ariz. 373
(App. 2006)—a case involving an attorney who, from time to time, served
as judge pro tempore in the same court as he practiced—the court of
appeals found that an appearance of impropriety required remand. Id.
at 374 ¶ 1. Following a dissolution of marriage trial, Mother’s counsel
discovered that Father’s counsel, Everts, had not only served along with
and provided coverage for the trial judge as a pro tempore, but the trial
judge’s staff stated Everts was “the division’s ‘preferred’ judge pro tempore
who frequently served in lieu of [the trial judge] and on whom the staff
relied and preferred above any other substitute.” Id. at 376 ¶ 17. Mother
moved to disqualify the trial judge and, following an evidentiary hearing,
the presiding family court judge found no just cause for removing the trial
judge. Id. at 377 ¶ 20. In reversing that ruling, the court of appeals
concluded that, under the facts of the case, the trial judge’s “impartiality
might reasonably be questioned.” Id. at 379 ¶ 31. Although the court did
not find any actual bias, it held that the presiding family court judge should
have disqualified the trial judge given all the circumstances proven. Id.
at 380 ¶ 35.

¶27 Whether disqualification of a presiding judge on the basis of
a professional relationship with a justice of the peace pro tempore he or she

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appointed is required under the facts of any given case will depend on
factors such as, but not limited to: the presiding judge’s involvement in the
selection of the justice of the peace pro tempore, the amount of time
between the appointment and litigation in question, the degree and
frequency of contacts between the presiding judge and his or her appointee,
and other case-specific factors that help shed light on whether the judge’s
impartiality might reasonably be questioned. See Smith, 203 Ariz. at 79 ¶ 16.

¶28 Here, we do not squarely answer the question of whether
Judge Dickerson’s professional relationship with Contreras, in his capacity
of justice of the peace pro tempore, would have required Judge Dickerson’s
disqualification because, given Bourke’s failure to timely object on this
separate basis, we lack sufficient insight into the nature of the professional
relationship between the two.

¶29 Bourke did not object to Judge Dickerson’s determination of
the vexatious litigant motion on the basis of his appointment of Contreras
as justice of the peace pro tempore. Bourke claims she was not aware of
this separate ground for disqualification in time to object. Contreras, on the
other hand, provided a link to a social media post where Bourke
commented regarding his reappointment as a justice of the peace pro
tempore and the presiding judge’s duty to obtain public comment. Thus,
Bourke was on notice that Judge Dickerson had appointed Contreras as a
justice of the peace pro tempore, but she failed to challenge Judge Dickerson
for cause by filing a timely affidavit setting forth those grounds. Contreras,
258 Ariz. at 226 ¶ 8, 227 ¶ 11, 229 ¶ 17. Bourke was required to object within
twenty days of her discovery of the grounds for Judge Dickerson’s removal.
§ 12-409; Ariz. R. Fam. Law P. 6.1(a), (c); see also Ariz. R. Civ. P. 42.2(b), (d).
We find no such objection in the record.

¶30 Though the parties enjoy the right to move to disqualify a
judge for alleged bias, that right may be waived by a party who fails to
timely act. John Munic Enters., Inc. v. Laos, 235 Ariz. 12, 15 ¶ 4 (App. 2014).
This we plainly articulated in Marsin v. Udall, 78 Ariz. 309, 312 (1955):

Of course, one may with knowledge of the facts, consent that
his case be tried before a judge he thinks is biased and
prejudiced. The privilege to challenge the judge’s fairness
carries with it the concomitant right to willingly submit to
trial. He is not compelled to exercise the right but may waive

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it.

Here, Bourke failed to timely act by alleging in the trial court that Judge
Dickerson’s appointment of Contreras created the type of professional
relationship that gave rise to bias or prejudice in favor of Contreras. See
Simon, 225 Ariz. at 63 ¶ 29. Her failure to timely object on this separate
ground prevented the claim from being fully litigated and, after full
inquiry, potentially even resolved in her favor in that forum. Instead,
Bourke, having stripped from the trial court the opportunity to make
detailed inquiry into the operative facts and to make an initial
determination on the merits of her claim, has now waived it on appeal. See
Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (stating errors not raised in
trial court cannot be asserted on appeal). Therefore, she is not entitled to
relief due to any appearance of impropriety arising from Judge Dickerson’s
appointment of Contreras as a justice of the peace pro tempore.

C. Relief

¶31 Having held that Bourke was deprived of the right to know
why Judge Dickerson initially recused from the case and why he thought
he could re-enter it, we turn to the appropriate form of relief.

¶32 We note that, contrary to Bourke’s assertion, actions taken by
a judge after disqualification are voidable, but they are not void ab initio.
Conkling v. Crosby, 29 Ariz. 60, 67–68 (1925). “A voidable judgment is one
in which the court has jurisdiction over the subject matter and parties but
which is otherwise erroneous and subject to reversal.” State v. Cramer, 192
Ariz. 150, 153 ¶ 16 (App. 1998) (citing Cockerham v. Zikratch, 127 Ariz. 230,
234 (1980)). “An order is void if it exceeds the jurisdiction of the court or
agency rendering it.” Legacy Found. Action Fund v. Citizens Clean Elections
Comm’n, 243 Ariz. 404, 406 ¶ 9 (2018); see also Am. Asphalt & Grading Co. v.
CMX, L.L.C., 227 Ariz. 117, 119 ¶ 11 (2011).

¶33 Here, the trial court retained jurisdiction over the parties even
when Judge Dickerson entered his vexatious litigant ruling without giving
them the reasons for his initial recusal and later re-entry into the case and
an opportunity to be heard. Judge Dickerson’s ruling was therefore
voidable.

¶34 We now hold that, under CJCR 2.11(A), Judge Dickerson had
an independent duty to advise the parties of those reasons and give them

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an opportunity to be heard in opposition. See supra ¶¶ 13–18. Ordinarily,
we would remand to the superior court so that it could provide the parties
with notice of the circumstances Judge Dickerson believed no longer
required his recusal from presiding over the vexatious litigant motion and
give the parties an opportunity to be heard. If sufficient grounds existed to
overcome the initial disqualification, Judge Dickerson’s order could stand.
If not, the motion would be reassigned to a different judicial officer for a
new ruling.

¶35 Because Judge Dickerson has retired, however, and because
nothing further would be gained by remanding for additional inquiry into
the nature of Judge Dickerson’s relationship with Contreras, we remand for
a new judicial officer to rule on Contreras’ vexatious litigant motion.

CONCLUSION

¶36 For these reasons, we vacate the court of appeals’ opinion,
reverse the superior court’s order declaring Bourke a vexatious litigant, and
remand to that court for a different judge to rule on Contreras’ motion to
declare Bourke a vexatious litigant.

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