Bergeron v. O'neil, 2 CA-SA 2003-0053

• Decision Date: 21 August 2003
• Docket Number: No. CR 200300326,No. CR 200300419,No. CR 200300368,No. CR 200300563,Pinal County Cause No. CR 200300475,No. CR 200300199,No. CR 200300512,2 CA-SA 2003-0055,2 CA-SA 2003-0060,No. CR 200300463,2 CA-SA 2003-0053,2 CA-SA 2003-0054,No. CR 200201387,No. CR 20026792,CR 200300463,CR 200300419,CR 200300326,CR 20026792,CR 200300199,CR 200300368,CR 200300512,CR 200300563,CR 200201387
• Parties: JENNIFER L. BERGERON, Deputy Public Defender, Pinal County, on behalf of JOSEPH LOUIS PEREZ, Petitioner, v. HON. WILLIAM J. O'NEIL, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, and HON. COLIN F. CAMPBELL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents, and THE STATE OF ARIZONA, Real Party in Interest. BRET HUGGINS and RAYMOND BECK, Deputy Public Defenders of Pinal County, on behalf of JEREMY MYERS and JOHN J. NEWSOME, Petitioners, v. HON. WILLIAM J. O'NEIL, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, and HON. COLIN F. CAMPBELL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents, and THE STATE OF ARIZONA, Real Party in Interest. BRADLEY SOOS, on behalf of THE STATE OF ARIZONA, Petitioner, v. HON. WILLIAM J. O'NEIL, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, and HON. COLIN F. CAMPBELL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents, and PATRICK LEWIS, Real Party in Interest. DAVID W. GREGAN, MARIO E. URRUTIA, and LAWTON CONNELLY, on behalf of SHANNON DUVALL, CONNIE STEVENS, and KENNETH L. FARNSWORTH, Petitioners, v. HON. WILLIAM J. O'NEIL, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, and HON. COLIN F. CAMPBELL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents, and THE STATE OF ARIZONA, Real Party in Interest. RAYMOND BECK, Deputy Public Defender of Pinal County, on behalf of GAVINO GARCIA BARRERAS and RUDOLPH SALAS, Petitioners, v. HON. WILLIAM J. O'NEIL, Judge of the Superior Court of the State of Arizona, in and for the County of Pinal, and HON. COLIN F. CAMPBELL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents, and THE STATE OF ARIZONA, Real Party in Interest.
• Court: Arizona Court of Appeals

JENNIFER L. BERGERON, Deputy Public

Defender, Pinal County, on behalf of JOSEPH LOUIS PEREZ, Petitioner, v. HON. WILLIAM J. O'NEIL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Pinal, and HON.

COLIN F. CAMPBELL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Maricopa, Respondents,

and

THE STATE OF ARIZONA,

Real Party in Interest.

BRET HUGGINS and RAYMOND BECK,

Deputy Public Defenders of Pinal County,

on behalf of JEREMY MYERS and JOHN

J. NEWSOME, Petitioners,

v.

HON. WILLIAM J. O'NEIL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Pinal, and HON.

COLIN F. CAMPBELL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Maricopa, Respondents,

and

THE STATE OF ARIZONA, Real Party in Interest.

BRADLEY SOOS, on behalf of

THE STATE OF ARIZONA, Petitioner,

v.

HON. WILLIAM J. O'NEIL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Pinal, and HON.

COLIN F. CAMPBELL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Maricopa, Respondents,

and

PATRICK LEWIS, Real Party in Interest.

DAVID W. GREGAN, MARIO E.

URRUTIA, and LAWTON CONNELLY,

on behalf of SHANNON DUVALL,

CONNIE STEVENS, and KENNETH L.

FARNSWORTH, Petitioners,

v.

HON. WILLIAM J. O'NEIL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Pinal, and HON.

COLIN F. CAMPBELL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Maricopa, Respondents,

and

THE STATE OF ARIZONA,

Real Party in Interest.

RAYMOND BECK, Deputy Public

Defender of Pinal County, on behalf of

GAVINO GARCIA BARRERAS and RUDOLPH SALAS, Petitioners,

v.

HON. WILLIAM J. O'NEIL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Pinal, and HON.

COLIN F. CAMPBELL, Judge of the

Superior Court of the State of Arizona, in

and for the County of Maricopa, Respondents,

and

THE STATE OF ARIZONA, Real Party in Interest.

2 CA-SA 2003-0053

2 CA-SA 2003-0054

2 CA-SA 2003-0055

2 CA-SA 2003-0060

Pinal County Cause No. CR 200300475

No. CR 200300463

No. CR 200300419

No. CR 200300326

No. CR 20026792

No. CR 200300199

No. CR 200300368

No. CR 200300512

No. CR 200300563

No. CR 200201387

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Filed: August 21, 2003

OPINION

Page 3

SPECIAL ACTION PROCEEDINGS

RELIEF GRANTED

Page 4

Ralph E. Ellinwood

Tucson

Attorney for Petitioner Bergeron

Eleanor L. Miller

Phoenix

Attorney for Petitioners

Huggins and Beck

Robert Carter Olson, Pinal County Attorney

By Bradley Soos Florence

and

Jones, Skelton & Hochuli

By Georgia Staton and Eileen Dennis GilBride

Phoenix

Attorneys for Petitioner Soos

Nicholas S. Hentoff

Phoenix

Attorney for Petitioners Gregan,

Urrutia, and Connelly

Terry Goddard, Arizona Attorney General By Anne C. Longo

Phoenix

Attorneys for Respondents

ECKERSTROM, Judge.

¶1 In these consolidated special actions, we are asked to determine whether an attorney who has filed a notice of change of judge pursuant to Rule 10.2, Ariz. R. Crim. P., 16A A.R.S., and who has therein avowed that the notice was not being filed for any improper purpose may be ordered to divulge his or her reasons for seeking a change of judge. We conclude that compelling counsel to divulge the reasons for filing a notice in accordance with Rule 10.2 is contrary both to the rule's express terms and its intent. For that reason, we further conclude that respondents,

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Judges O'Neil and Campbell, proceeded in excess of their jurisdiction and legal authority when they failed to immediately reassign the underlying actions as required by the express terms of that rule.

BACKGROUND

A. The Rule.

¶2 Rule 10.2 provides, in relevant part, as follows:

a. Entitlement. In any death penalty case, any party shall be entitled to request a change of judge as a matter of right no later than ten (10) days after the state files a notice of intention to seek the death penalty. In any criminal case other than a death penalty case, each side is entitled as a matter of right to a change of judge. Each such non-death penalty case, whether single or consolidated, shall be treated as having only two sides: provided that, whenever two or more parties on a side have adverse or hostile interests, the presiding judge or that judge's designee may allow additional changes of judge as a matter of right.

b. Procedure. A party may exercise his or her right to a change of judge by filing a pleading entitled "Notice of Change of Judge" signed by counsel, if any, stating the name of the judge to be changed. The notice shall also include an avowal that the request is made in good faith and not:

1. For the purpose of delay;

2. To obtain a severance;

3. To interfere with the reasonable case management practices of a judge;

4. To remove a judge for reasons of race, gender or religious affiliation;

5. For the purpose of using the rule against a particular judge in a blanket fashion by a prosecuting agency, defender group or law firm (State v. City Court of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986));

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6. To obtain a more convenient geographical location; or

7. To obtain advantage or avoid disadvantage in connection with a plea bargain or at sentencing, except as permitted under Rule 17.4(g).

The avowal shall be made in the attorney's capacity as an officer of the court.

...

d. At the time of the filing of a notice of change of judge, the parties shall inform the court in writing if they have agreed upon a judge or judges who are available and are willing to have the action assigned to that judge. An agreement of all parties upon such judge may be honored and, if so, shall preclude further changes of judge as a matter of right unless the agreed judge becomes unavailable. If no judge has been agreed upon, then the presiding judge shall immediately reassign the action.

¶3 Effective July 1, 2001, the supreme court added the mandatory avowals in Rule 10.2(b) on an experimental basis to address the perception that the rule was being abused. Ariz. R. Crim. P. 10.2 cmt. Although the amendments were to remain in effect until June 30, 2002, the supreme court has twice extended them. Ariz. Sup. Ct. Order (June 9, 2003) (extending amendments to January 23, 2004).

B. The Special Actions.

¶4 These special actions arose out of criminal proceedings in Pinal County Superior Court and involve nine different defendants in ten cases. In State v. Lewis, CR 20026792, petitioner Bradley Soos, Deputy Pinal County Attorney, filed a notice of change of judge seeking to remove Pinal County Superior Court Judge Gilberto V. Figueroa from the case pursuant to Rule 10.2. Finding that it appeared the office of the Pinal County Attorney had "repetitively" filed such notices as to Judge Figueroa, respondent Judge O'Neil, the Presiding Judge of Pinal County

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Superior Court, assigned the matter to respondent Judge Campbell, the Presiding Judge of Maricopa County, for the purpose of "reviewing" the notice. In forwarding the notice to Judge Campbell, Judge O'Neil noted that Soos had filed notices as to Judge Figueroa in four other cases between January 13 and March 31, 2003.

¶5 On April 23, Judge Campbell ordered Soos to appear before him on May 2 to "provide a reason and explanation as to why a Notice of Change of Judge was filed by him" in the underlying action. Soos filed a motion to vacate the April order and the May 2 hearing, asking that the case be assigned to a new judge. Alternatively, Soos asked Judge Campbell to stay the May 2 hearing so Soos and the State of Arizona could seek special action relief in this court. Soos attached to that motion the affidavit of Robert Carter Olson, the Pinal County Attorney, in which Olson stated that his office did not "have a practice of filing a notice of change of judge pursuant to Rule 10.2 against a particular judge in a blanket fashion." He also stated that his deputy county attorneys are authorized to file notices "in good faith and not for any improper purpose."

¶6 On April 16, petitioner Bret H. Huggins of the Pinal County Public Defender's office filed a notice of change of judge in State v. Myers, CR 200300463, seeking to remove respondent Judge O'Neil from that case. Similarly, on April 24, petitioner Raymond Beck of the Pinal County Public Defender's office filed a notice of change of judge in State v. Newsome, CR 200300419, and in another case involving the same defendant, CR 200300326, seeking to remove Judge O'Neil. And, on April 16, petitioner Jennifer L. Bergeron, also of the Pinal County Public Defender's office, filed a similar notice in State v. Perez, CR 200300475. Judge O'Neil referred these matters to Judge Campbell, who ordered Huggins, Beck, and Bergeron to appear before him on May 2 for the same reason he had ordered Soos to appear before him: to explain

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the reasons for filing the Rule 10.2 notices and to ensure the notices had not been filed for an improper purpose. Huggins filed a motion to quash the order requiring his appearance, a request to expedite a hearing on the motion to quash, and a motion to stay the May 2 hearing indefinitely or, alternatively, for a brief stay so he could seek a stay in this court.

¶7 Judge Campbell consolidated these and other cases involving similar notices for the limited purpose of considering the notices. Petitioners and their attorneys participated in a May 1 telephonic hearing before Judge Campbell addressing the propriety of proceeding with the May 2 hearing. Petitioners argued that the orders that compelled them to explain their reasons for having filed the notices were contrary to the intent of Rule 10.2. They asserted that, once proper notices had been filed, Judge O'Neil was required to reassign the cases.

¶8 Judge Campbell disagreed. He analogized the right to a change of judge under Rule 10.2 to the right to peremptorily strike a juror. Judge Campbell reasoned that, just as Batson v. Kentucky,...