Dunlap v. Superior Court, In and For County of Maricopa

• Decision Date: 08 August 1991
• Docket Number: CA-SA,No. 1,1
• Citation: 817 P.2d 27,169 Ariz. 82
• Parties: Max DUNLAP, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Norman D. Hall, and the Honorable Steven D. Sheldon, judges thereof, Respondent Judges. STATE of Arizona, Real Party in Interest. 91-109.
• Court: Arizona Court of Appeals

Page 27

817 P.2d 27

169 Ariz. 82

Max DUNLAP, Petitioner, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF MARICOPA, the Honorable Norman D. Hall, and the Honorable Steven D. Sheldon, judges thereof, Respondent Judges STATE of Arizona, Real Party in Interest.

No. 1 CA-SA 91-109.

Court of Appeals of Arizona Division 1, Department D.

Aug. 8, 1991.

As Corrected Aug. 8, 1991.

[169 Ariz. 83] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Warren J. Granville and Fred Newton, Asst. Attys. Gen., Phoenix, for real party in interest.

Lewis and Roca by John P. Frank, Jordan Green, Christopher J. Brelje and Robert H. McKirgan, Phoenix, for petitioner.

OPINION

TAYLOR, Presiding Judge.

Petitioner Max Dunlap originally brought this special action in the superior court, challenging a magistrate's decision to consider revocation of petitioner's release on his own recognizance and the magistrate's refusal to exclude wiretap evidence from the scheduled preliminary hearing. Because the superior court determined that it had no jurisdiction to review the matter, petitioner brought his special action to this court.

Following oral argument, this court accepted jurisdiction and entered an order in which relief was denied in part and granted in part, with a written opinion to follow. Thereafter, the parties settled the disputed matters presented in the petition. Because we believe that the legal issues presented are capable of repetition, see KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 250, 678 P.2d 431 (1984), and of significant importance in the administration of criminal justice in this state, we exercise our discretion to retain jurisdiction of petitioner's special action.

FACTS AND PROCEDURAL HISTORY

On December 19, 1990, the state served a criminal summons on petitioner with a complaint alleging that he participated in the much-publicized murder of investigative reporter Don Bolles, and that thereafter he conspired to obstruct justice. The State did not arrest petitioner or place him in custody. On January 3, 1991, petitioner appeared at his initial appearance before Superior Court Judge Ronald S. Reinstein, sitting as a magistrate. Without objection by the State, petitioner was released on his own recognizance. A preliminary hearing was scheduled for July 1, 1991 before Superior Court Judge Norman D. Hall, Jr., also to sit as a magistrate.

On January 26, 1991, the State moved to revoke petitioner's release and to consolidate the bail hearing with the preliminary hearing. Petitioner objected to both motions. He also filed a motion to preclude the use of wiretap evidence at his preliminary hearing. ¹ Judge Hall, by granting the motion to consolidate the hearings, agreed to consider revocation of release. The motion to preclude wiretap evidence was denied.

Petitioner filed special action proceedings in the superior court challenging the rulings of Judge Hall sitting as a magistrate. The special action was assigned to Judge Steven D. Sheldon, who raised the issue of the superior court's jurisdiction sua sponte. Although both petitioner and the state agreed that the superior court had jurisdiction to accept review of the matter, Judge Sheldon held that, based on Rule 16.1(d) of the Arizona Rules of Criminal Procedure, ² he, as a superior court judge, lacked jurisdiction to review the decisions of another superior court judge sitting as a magistrate. The special action was dismissed in the superior court and these proceedings followed.

DISCUSSION

We first determine whether the superior court has jurisdiction to accept a special action challenge to the decisions of a superior court judge acting as a committing magistrate. We then address the merits of the issues presented in the superior court petition: 1) whether the magistrate may properly consider the revocation of petitioner's release, and 2) whether the magistrate may properly consider wiretap evidence at a preliminary hearing.

Jurisdiction to Review the Magistrate's Decision

The office of a magistrate is created by state constitutional and statutory law. Our state constitution provides that "no person shall be prosecuted for a felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination." Ariz.Const. art. II, § 30. A "magistrate" is defined by statute as:

... an officer having power to issue a warrant for the arrest of a person charged with a public offense and includes the chief justice and judges of the supreme court, judges of the superior court, justices of the peace and police magistrates in cities and towns. (Emphasis added.)

A.R.S. § 1-215(13).

It is well recognized that a superior court judge may sit as a committing magistrate for the purpose of holding a preliminary examination to determine probable cause. Sheridan v. Superior Court, 91 Ariz. 211, 213-214, 370 P.2d 949, 951 (1962). The jurisdiction of a superior court judge to act as a magistrate for this purpose is created by statute. Wilson v. Garrett, 104 Ariz. 57, 58-59, 448 P.2d 857, 858-59 (1969). His powers and duties as a magistrate are solely those conferred upon him by the Rules of Criminal Procedure and applicable statutes. ³ See State ex rel Mahoney v. Stevens, 79 Ariz. 298, 300, 288 P.2d 1077, 1078 (1955). His status and jurisdiction, sitting as a magistrate, is neither enlarged nor diminished by the extent of his jurisdiction to hear or try criminal cases. Comment to Rule 4.1(b) and (c), Ariz.R.Crim.P.

All judicial officers sitting as magistrates have equal rank. The Sheridan court stated that "without regard to the powers pertaining to his judicial office, a judge when exercising the functions of a magistrate has only the jurisdiction and power conferred by law on magistrates." Sheridan, 91 Ariz. at 214, 370 P.2d 949. The court then cited with approval the following from People v. Swain, 5 Cal.App. 421, 425, 90 P. 720, 722 (1907):

... Under the law a justice of the peace, when exercising the powers of a magistrate, has equal authority as such with the justices of the Supreme Court and judges of the superior courts when acting in a similar capacity. The jurisdiction of all those officers, when acting in the ex officio capacity in question, extends only to taking and hearing evidence upon the felony charge, and after hearing the proofs making an order either discharging the accused, or holding him to trial for the offense shown.... (Emphasis original.)

The Sheridan court also cited the following from People v. Crespi, 115 Cal. 50, 54, 46 P. 863, 864 (1896): "... Justices of the supreme court, judges of the superior court, justices of the peace, and police judges, when sitting as magistrates, have the jurisdiction and powers conferred by law upon magistrates, and not those which pertain to their respective judicial offices ...". Sheridan, 91 Ariz. at 214, 370 P.2d 949. See Fursdon v. Los Angeles County, 100 Cal.App.2d Supp. 845, 848, 223 P.2d 520, 523 (1950); see also Knight v. Maricopa County, 53 Ariz. 540, 544, 91 P.2d 269, 271 (1939).

It is apparent from the foregoing that when exercising the functions of a magistrate, a superior court judge takes on a role separate and apart from his superior court duties. He is an ex officio magistrate with narrowly restricted power and jurisdiction.

In deciding that the superior court had no jurisdiction over the special action, Judge Sheldon relied on the comment to Rule 16.1(d) of the Arizona Rules of Criminal Procedure, prohibiting reconsideration of a court's determination by the same court. However, the decisions of a superior court judge sitting as a magistrate are not an exercise of the judicial power of the superior court. 22 C.J.S. Criminal Law § 343(a), § 345. The determinations of a magistrate, who may at another time wear the robes of a superior court judge, are the determinations of an officer created by constitution and statute. He may, in addition to being a magistrate, hold any of the positions or offices enumerated in A.R.S. § 1-215(13). ⁴ His duties as a magistrate, however, are separate and apart from any court.

The special concurrence relies upon Green v. Thompson, 17 Ariz.App. 587, 499 P.2d 715 (1972). In Green, this court held that a superior court judge may not review the actions of a superior court commissioner by means of a special action. The basis for that decision was the conclusion that the superior court judge and the court commissioner are members of the same court.

Based on provisions in our constitution, as well as former Supreme Court Rule 46, now Rule 91, we determined that court commissioners are appointed by the presiding judge of the superior court, that they act within the jurisdiction of the superior court, and that they are labeled "superior court commissioners." Although his jurisdiction is narrower, a court commissioner, acting within the confines of his authority, acts as a member of the superior court. Green, at 590, 499 P.2d 715. In the note to Supreme Court Rule 91, the supreme court emphasized the role of the commissioner:

It is the intention of the Supreme Court that court commissioners shall hereafter, as the court commissioner in Maricopa County has been doing since April 18, 1961, function within the scope of their authority in the same manner as do judges of the Superior Court, and that the effect of an order, judgment or decree entered by a court commissioner shall be precisely the same as if the same order, judgment or decree had been entered by a judge of the Superior Court.

Based on this language, this court reasoned that court commissioners and superior court judges are members of the same court.

The superior court has appellate jurisdiction, as well as power to issue writs ⁵ to "inferior courts, boards and officers". A.R.S. § 12-124(B). The court, in Green, concluded that because a court commissioner is a judicial officer of the...