Denise S., Carlos C. v. State of Arizona ( 2006 )

FILED BY CLERK
IN THE COURT OF APPEALS AUG 16 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
DENISE S., )
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Petitioner, )
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v. )
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HON. KIMBERLY A. CORSARO, Judge ) 2 CA-SA 2006-0048
Pro Tempore of the Superior Court of the ) 2 CA-SA 2006-0055
State of Arizona, in and for the County of ) (Consolidated)
Santa Cruz, ) DEPARTMENT A
)
Respondent, ) OPINION
)
and )
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STATE OF ARIZONA, )
)
Real Party in Interest. )
)
)
CARLOS C., )
)
Petitioner, )
)
v. )
)
HON. KIMBERLY A. CORSARO, Judge )
Pro Tempore of the Superior Court of the )
State of Arizona, in and for the County of )
Santa Cruz, )
)
Respondent, )
and )
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Santa Cruz County Cause Nos. JV06-067A and JV06-091A
JURISDICTION ACCEPTED; RELIEF GRANTED
Vettiyil & Associates, P.C.
By Saji Vettiyil Nogales
Attorneys for Petitioners
George Silva, Santa Cruz County Attorney
By Chuck Lagrand Nogales
Attorneys for Real Party in Interest
V Á S Q U E Z, Judge.
¶1 In these consolidated cases, two juveniles against whom the state has filed
delinquency petitions seek special action relief from the respondent judge’s denial as
untimely of their notices of change of judge. A special action is the only means for seeking
review of a denial of a peremptory request for change of judge. Taliaferro v. Taliaferro,
186 Ariz. 221, 223, 921 P.2d 21, 23 (1996); Brush Wellman, Inc. v. Lee, 196 Ariz. 344, ¶
5, 996 P.2d 1248, 1250 (App. 2000); Williams v. Superior Court, 190 Ariz. 80, 82, 945
P.2d 391, 393 (App. 1997). Therefore, neither juvenile has an adequate remedy by appeal,
see Rule 1(a), Ariz. R. P. Spec. Actions, 17B A.R.S., and our accepting jurisdiction is
appropriate. And, because we conclude the respondent judge abused her discretion in
finding the juveniles’ requests were untimely, we grant relief. See Ariz. R. P. Spec. Actions
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3(c); Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 284-85 (2003);
State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983).
¶2 The essential facts are not disputed. Denise S. and her mother were personally
served with a delinquency petition on April 18, 2006. The citation to appear with which
they were also served ordered them to appear before the Santa Cruz County Juvenile Court
on May 15. The attorney Denise’s mother retained on May 10 filed a notice of change of
judge that same day. The respondent judge denied the notice as untimely on May 11.
¶3 The state filed a delinquency petition against Carlos C. on May 18, 2006, and
he and his parents were personally served with the petition on June 7. On May 18, the
respondent judge signed an order appointing counsel for Carlos, ordering Carlos to contact
the attorney, and ordering his parents to file a completed and signed financial statement on
or before the advisory hearing set for June 19. On June 8, the day after Carlos and his
parents had been served, the respondent judge issued an order appointing different counsel
for Carlos, noting that the original attorney had informed the court he was not currently
accepting appointments as counsel. Carlos instead retained an attorney on June 13 who
filed a notice of change of judge that same day. The respondent judge denied the notice as
untimely on June 16.
¶4 As the juveniles correctly note, a change of judge upon request in a juvenile
case is governed by Rule 2(B), Ariz. R. P. Juv. Ct., 17B A.R.S. The pertinent portions of
the rule provide as follows:
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1. Grounds. Any party shall be entitled to request a
change of judge as a matter of right.
2. Procedure. A party may exercise his or her right to
a change of judge by making a request in open court on the
record or by filing a pleading entitled “Notice of Change of
Judge” signed by counsel, if any, stating the name of the judge
to be changed. A notice of change of judge shall be filed within
five (5) days after notice to the requesting party of the
assignment of the case to a judge. . . .
Under the rule, the time for filing a change of judge begins with notice to a party that the
case has been assigned to a particular judge, and the right is waived if the party fails to file
the change within five days of that notice. Id.
¶5 Although neither order denying the notice of change of judge as untimely
states the reason it was untimely, according to the juveniles, the respondent judge based her
ruling on an administrative order issued November 13, 2001, by the presiding judge of the
Santa Cruz County Superior Court that assigned to the respondent judge all juvenile cases
filed in the superior court on or after November 8, 2001. Apparently, the respondent judge
reads the administrative order as giving the notice required by Rule 2(B)(2) to any juvenile
in Santa Cruz County who is served with a delinquency petition and citation to appear in
court that she is the judge assigned to the case.
¶6 The juveniles argue their situations are similar to the juveniles in JV-132324
v. Superior Court, 181 Ariz. 337, 890 P.2d 632 (App. 1995). In that case, the juvenile
court had issued an administrative order making a blanket appointment of the public
defender as attorney for all juveniles who were alleged to be delinquent. Id. at 340, 890
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P.2d at 635. Because the juvenile court considered counsel as having been appointed the
day the state filed a delinquency petition, the court deemed untimely the notices of change
of commissioner the juveniles filed at their advisory hearings. Id. Division One of this court
held the administrative order was void, the juveniles had thus not been represented by
counsel until the advisory hearings began, and the notices had been timely. Id.
¶7 The court based its holdings on A.R.S. § 8-225(C) and Rule 6(c), Ariz. R. P.
Juv. Ct., 17B A.R.S., concluding that, unless juveniles have waived the right to counsel, they
cannot represent themselves and personally file a notice of change of judge or commissioner.
181 Ariz. at 343, 890 P.2d at 638. The state asserts the case is not applicable to these
juveniles because “[b]oth of these laws have been repealed, and there is no new
corresponding law.” (Emphasis deleted.) We disagree. Former § 8-225 has not been
repealed; it was simply renumbered—without any change in the language—as A.R.S. § 8-
221. 1999 Ariz. Sess. Laws, ch. 36, § 6. And the language of former Rule 6(c) is now
found in Rule 10(D), Ariz. R. P. Juv. Ct., 17B A.R.S. Compare version of Ariz. R. P. Juv.
Ct. 6(c) as amended effective July 21, 1997, 189 Ariz. CXXXIII, CXXVII (1997), with
current Ariz. R. P. Juv. Ct. 10(D), effective Jan. 1, 2001, 198 Ariz. CXLV-CXLVI, CXLII
(2000). Therefore, the right to counsel in juvenile delinquency cases remains unchanged.
¶8 The state also contends the holdings in JV-132324 are not applicable because,
unlike the previous Rule 6(c), current Rule 2(B) suggests a juvenile may file a notice of
change of judge when he or she is not represented by counsel. The state bases that
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contention on the language providing that a party may request a change of judge either on
the record in open court or by filing a notice “signed by counsel, if any.” Ariz. R. P. Juv.
Ct. 2(B)(2). We agree the language permits a juvenile to waive the right to counsel and file
a notice of change of judge personally. What the state’s argument ignores, however, is the
requirements for a juvenile to waive the right to counsel.
¶9 Under Rule 10(D), a juvenile may only waive the right to counsel if a court
“finds that the waiver is knowingly, intelligently and voluntarily given in view of the
juvenile’s age, education and apparent maturity.” The rule also states any waiver “should
. . . be obtained in the presence of” the juvenile’s parent, guardian, or custodian and “shall
be set out in writing or in the minute entry of the court.” Id. And Rule 28(C)(1), Ariz. R.
P. Juv. Ct., 17B A.R.S., requires a juvenile court to inform a juvenile of the right to counsel
at the advisory hearing. Unless the requirements have been met and the juvenile has
properly waived the right to counsel, the time period in Rule 2(B)(2) does not begin to run.
Neither juvenile in the case before us had appeared before the respondent judge before the
notice of change of judge was filed; accordingly, neither juvenile could have filed the notice
personally because neither had waived the right to counsel in accordance with Rule 10(D).
¶10 As the state correctly points out, the question we must next address is what
action constitutes notice to a juvenile that a judge has been assigned to the case, that is,
notice sufficient to trigger the five-day filing period. The state asserts the administrative
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order of November 2001 permanently assigning all juvenile cases to the respondent judge
was the triggering action in both cases before us. We do not agree.
¶11 Under Rule 26, Ariz. R. P. Juv. Ct., 17B A.R.S., a juvenile against whom a
delinquency petition has been filed and his or her parent, guardian, or custodian must be
notified in writing to appear in court. The notice is required to:
1. Contain the name and address of the person to whom
the notice is directed;
2. Contain the location, date and time of the hearing on
the petition;
3. Contain the name of the juvenile involved in the
offense alleged in the petition; and
4. Advise the person to whom the notice is directed that
failure to appear will result in sanctions being entered against
the person, which may include being held in contempt.
Id. The notices served on these juveniles complied with the rule’s requirements, but the rule
does not demand, and the notices served did not include, the name of the judge to whom the
cases were assigned. And nothing in either the delinquency petitions or the citations to
appear refers to the administrative order of November 2001 or otherwise identifies the judge
to whom the cases were assigned.
¶12 We reject the state’s argument that the administrative order complied with the
requirements of Rule 5, Ariz. R. P. Juv. Ct., 17B A.R.S., which authorizes the juvenile court
of each county to “make and amend rules governing its practice.” The order cannot properly
constitute a local rule because it does not appear in the Local Rules of Practice for the Santa
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Cruz County Superior Court, 17B A.R.S., Rule 23 of which provides that the rules are
effective on and after August 1, 2003, “on which date all other rules adopted by this Court
are hereby repealed.”
¶13 We conclude instead that the administrative order is an internal court order
permitted by Rules 91(c) and 92(a), Ariz. R. Sup. Ct., 17A A.R.S., which address court
organization, the assignment of cases, and the powers and duties of a superior court
presiding judge. And that conclusion is consistent with the distribution list on the
administrative order showing copies were sent to the judges and judges pro tempore of the
Santa Cruz County Superior Court, to the clerk of the court, and to court administrators.
¶14 The juveniles argue they could not have waived the time for filing a notice of
change of judge because they did not know and could not reasonably have been expected
to know the November 2001 administrative order existed. The state responds that people
regularly waive rights they do not know exist, but the examples the state describes do not
involve the right at issue. Moreover, the applicable cases hold otherwise.
¶15 Division One observed in JV-132324 that “it is established law that the right
to a peremptory change of judge or commissioner cannot be waived under Civil [Procedure]
Rule 42(f)(1)(C) unless the party has had the opportunity to exercise that right.” 181 Ariz.
at 343, 890 P.2d at 638. Civil Procedure Rule 42 was the applicable rule in that case
because Juvenile Rule 2 had not yet been adopted. The cases Division One cited for that
proposition were Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955), and Newsom v.
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Superior Court, 102 Ariz. 95, 425 P.2d 422 (1967). Although both cases addressed
whether a party had waived the right to a change of judge by appearing at a contested
hearing before the challenged judge, their language is informative. In Marsin, our supreme
court held:
The right to a fair and impartial trial before a fair and
impartial judge is a valuable substantive right originating in the
common law and recognized by statute in both criminal and
civil cases. Neither this court nor the superior court can by rule
of procedure deprive a party of the opportunity to exercise this
right. . . . A court is limited to passing rules which prescribe
procedure for exercising the right. Any rule of court that
operates to lessen or eliminate the right is of no legal force. . .
. Whether an affidavit of bias and prejudice is timely filed is
dependent upon the law of waiver and before one can be said
to have waived the right, he must first have had an opportunity
to exercise it.
78 Ariz. at 312, 279 P.2d at 723. And the court repeated the last two sentences of Marsin
when it decided Newsom, 102 Ariz. at 96, 425 P.2d at 423.
¶16 Our supreme court, therefore, has held the right to a change of judge is a well-
established right that requires an opportunity to exercise it. See also State v. Neil, 102 Ariz.
110, 112, 425 P.2d 842, 844 (1967) (right to peremptory change of judge derives from right
to fair trial); JV-132324, 181 Ariz. at 342, 890 P.2d at 637 (right to peremptory change of
judge is important procedural right). And the case the state cites on the sufficiency of notice
is consistent with the applicable case law. In the prestatehood case of Porter v. Bichard,
1 Ariz. 87, 94, 25 P. 530, 531 (1873), the Supreme Court of the Territory of Arizona held
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that notice “is always sufficient where it informs the party entitled to its receipt of the thing
to be done and leads him to the place of doing it at the proper time.”
¶17 Because the November 2001 administrative order was not served on the
juveniles with the delinquency petition and citation to appear and because the citation to
appear does not name the judge to whom the case is assigned, we conclude the juveniles
were not given sufficient notice that their cases had been assigned to the respondent judge
simply by being served a copy of the delinquency petition and citation to appear. Those
documents did not inform the juveniles of the judge assigned to their cases or give them an
opportunity to exercise their right to a change of judge pursuant to Rule 2(B), and no
determination of their right to counsel had been made under Rules 10 and 28. See JV-
132324, 181 Ariz. at 346, 890 P.2d at 641 (automatic appointment of counsel conflicts with
procedural protections afforded by juvenile rule governing right to counsel); see also
Medders v. Conlogue, 208 Ariz. 75, ¶ 8, 90 P.3d 1241, 1244 (App. 2004) (party cannot
waive right to change of judge absent timely notice right exists); Williams, 190 Ariz. at 83,
945 P.2d at 394 (same).
¶18 Our conclusion is not different for Carlos because of the different facts in his
case. The respondent judge’s attempt to appoint counsel for him was ineffective under the
applicable statute and rule. Section 8-221(B), A.R.S., provides that a juvenile court shall
appoint an attorney to represent a juvenile if the juvenile or the juvenile’s parent or guardian
“is found to be indigent and entitled to counsel.” And Rule 10(A) provides that a juvenile
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court “shall appoint counsel for the juvenile if the juvenile is determined to be indigent.”
Under Rule 10(B)(2), a court determines if a juvenile is indigent by requiring the juvenile,
parent, guardian, or custodian to file a court-provided financial questionnaire about which
the court may question the parent, guardian, or custodian under oath.
¶19 In Carlos’s case, the respondent judge attempted to follow a reverse procedure,
issuing an order appointing counsel and, at the same time, ordering Carlos’s parents to file
a financial statement “on or before” Carlos’s next scheduled court hearing. As it turned out,
however, the attorney the respondent judge appointed did not accept the appointment, and
the minute entry appointing another attorney does not reflect that it was sent to anyone,
much less to Carlos and his parents. And, in the end, Carlos’s parents retained their own
attorney, thereby rendering moot the respondent judge’s orders attempting to appoint
counsel even before the advisory hearing was held at which the judge was required to inform
Carlos and his parents that he had the right to appointed counsel if he were indigent. See
Ariz. R. P. Juv. Ct. 28(C)(1), 10(A).
¶20 Although the juveniles have asked us to declare the administrative order void,
we need not do so, having found the order properly governs internal court administration
and did not give the juveniles the notice required by Rule 10(B)(2) of the respondent judge’s
assignment to their cases. We instead grant relief and vacate the respondent judge’s orders
denying as untimely the juveniles’ notices of change of judge.
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____________________________________
GARYE L. VÁSQUEZ, Judge
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CONCURRING:
____________________________________
JOHN PELANDER, Chief Judge
____________________________________
JOSEPH W. HOWARD, Presiding Judge
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