State v. Superior Court In and For Pima County

• Decision Date: 16 January 1967
• Docket Number: CA-CIV,Nos. 2,s. 2
• Citation: 4 Ariz.App. 562,422 P.2d 393
• Parties: The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima Respondents. 325, 2 344.
• Court: Arizona Court of Appeals

Page 393

422 P.2d 393

4 Ariz.App. 562

The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima Respondents.

Nos. 2 CA-CIV 325, 2 CA-CIV 344.

Court of Appeals of Arizona.

Jan. 16, 1967.

Review Granted Feb. 21, 1967.

Darrell F. Smith, Atty. Gen., Edward W. Scruggs, Sp. Asst. Atty. Gen., Tucson, William J. Schafer, III, County Atty. of Pima County, for petitioners.

Johnson, Darrow, D'Antonio, Hayes & Morales, by Lawrence P. D'Antonio, Tucson, for respondents.

MOLLOY, Judge.

This court has granted oral argument on the motion for rehearing to consider new matter presented by the respondents in a motion for rehearing. The new matter brought to the attention of the court is the assertion that the respondent-judge was the designated 'Assignment Judge' in Pima County at the time of the entry of the order directing that the subject grand jury be called into session and discharged and that, as such, he was vested with jurisdiction to so order under Criminal Rule 97(B), 17 A.R.S.

The position of 'Assignment Judge' is established by Rule V of the Local Rules of Procedure of the Superior Court in Pima County, 17 A.R.S., which were adopted in pursuance of Rule XIV of the Uniform Rules of Practice of the Superior Court of Arizona as adopted by the Supreme Court of this state, 17 A.R.S., under its constitutional powers. Rule V of the Local Rules of Pima County, in effect at all times concerned in this action, reads as follows:

'The Clerk of this Court shall furnish a Deputy Clerk to the Assignment Division to be known as the Assignment Clerk. Such Clerk shall devote full time to the work of the Assignment Division and shall be under the direction of the Assignment Judge.

'It shall be the duty of the Assignment Division to handle all the business of the Court, except juvenile matters, and, with the same exception, The judges of the other divisions shall handle only matters assigned to them by the Assignment Judge.

'All duties and powers of the Court Administrator and the acting Presiding Judge, as delineated by the Uniform Rules of Practice of the Superior Court, shall be vested in the Assignment Judge.' (Emphasis added.)

During oral argument, this court was asked to take judicial notice of various facts outside of the record, including a press release stated to have been given as the result of a judges' conference held by the Pima County Superior Court bench at the time of the decision to call the subject grand jury. It is only through judicial notice that it can be known that the respondent-judge was the duly designated 'Assignment Judge' on the day in question. We have previously had occasion to comment upon the close limitations placed upon the doctrine of judicial notice. In Bade v. Drachman, supplemental opinion, 4 Ariz.App. 55, 68, 417 P.2d 689, 702 (1966), wherein we quoted from previous pronouncements of our Supreme Court to the effect that the matter as to which judicial notice is to be taken '* * * must be capable of immediate accurate demonstration,' and must be '* * * indisputable.' (Quote from Phelps Dodge Corporation v. Ford, 68 Ariz. 190, 196, 203 P.2d 633, 638 (1949).)

We are in an area of information close to the personal knowledge of judges and lawyers, and hence we believe the doctrine of judicial notice can be extended to some reasonable degree. Matters of common knowledge in the court and to the legal profession within the venue of the particular court are generally accepted to be within the doctrine of judicial notice. 31 C.J.S. Evidence § 49, p. 1013.

However, even in the area of the activities of the court, we do not conceive it proper to look to the news media for judicial knowledge. And, even under the somewhat relaxed concept expressed above, we have some difficulty in establishing that the respondent-judge was the Assignment Judge in Pima County on the date of the entry of the order in question. Respondents' counsel has professed personal knowledge of such fact but the petitioner's counsel, while agreeing that the respondent-judge had been delegated such duty for the months of September and October, 1966, professed lack of knowledge as to who was the Assignment Judge on the day of the particular order (October 11, 1966). It is common knowledge, at least among the bench and bar in Pima County, that the Assignment Judge duty is rotated by means of schedules published by the Presiding Judge and that there is no formal order delegating the duty of Assignment Judge. Moreover, the duty may be informally transferred from day to day, depending upon the exigencies of the particular day's calendar and the availability of particular judges to try certain cases.

However, even if we accept what we believe was undoubtedly the fact--that the respondent-judge had the duties of the Assignment Judge on the occasion in question--we do not believe that such status gives authority for the order in question. It is our view that the administrative powers vested in our Supreme Court over all of the courts of this state by our Constitution, Article 6, Section 3, Constitution of the State of Arizona, A.R.S., has been channeled by the Supreme Court through the Uniform Rules of Practice of the Superior Court, 17 A.R.S., to the Presiding Judge in each of the counties of the state. Under the quoted Rule V of the Local Rules of Pima County, this administrative authority has in turn been subdelegated to an 'Assignment Judge,' designated by the Presiding Judge.

We see an essential distinction between administrative and judicial powers, and as we interpret the applicable law, while the administrative powers of the Supreme Court have been delegated thusly to the Assignment Judge, there has been no increase in the judicial power to authority of such judge so as to give him the authority to overrule judicial decisions made by other judges in cases properly assigned to them.

The order in question was entered in a criminal action entitled 'State of Arizona, Plaintiff, vs. Sol Ahee, Defendant', No. A--15496, and is a direction to take certain action, involving judicial discretion, in another proceeding before the court in another division:

'IT IS FURTHER ORDERED that the Grand Jury be called to immediate session and be discharged forthwith.'

The calling of this grand jury, by the Presiding Judge, Judge Garrett, we believe was proper, either under the theory that as Presiding Judge he had the power to assign this particular judicial matter to himself under Rule I of the Uniform Rule of Practice of the Superior Court, ¹ or under the concept that any superior court judge has the authority to call a grand jury under Rule 81, Rules of Criminal Procedure, ² in which event there would be an automatic assignment of this particular judicial proceeding to the impaneling judge as a matter of course.

As we have previously indicated in our principal opinion, we see a continuity of responsibility in the impaneling judge that is similar to any other judicial proceedings in progress before a court. We see a decisive difference between the continuity of a grand jury proceeding and that of an ordinary civil action which is filed but as to which there is no judicial activity in progress other than being the repository of the particular action. As to the latter situation, we have previously held that when such an action requires judicial activity, as by the filing of a motion, and when such a case is regularly assigned to a division of the court, the judge of that division has the power to overrule a prior interlocutory order in that action, though this power should be sparingly exercised. Williams v. Garrett, 4 Ariz.App. 7, 417 P.2d 378 (1966).

But, when there is a judicial proceeding in progress, as when a jury is deliberating, whether it be a petit or a grand jury, we conceive that the judge to which such case has been assigned has the exclusive jurisdiction to determine whether such jury should be discharged,...