Cain v. City Court of City of Tucson ( 1983 )

CAMERON, Justice.

We granted the petition for review of Germaine Cain of a decision of the Court of Appeals which affirmed the denial of her request for a peremptory change of judge in the municipal court. We have jurisdiction pursuant to A.R.S. § 12-120.24.

We must consider only one issue on review. Are parties to criminal cases in non-record courts entitled to a peremptory change of judge as a matter of fairness?

The facts necessary to a determination of this matter are as follows. On 4 January 1981, Germaine Cain was arrested and charged with driving while intoxicated. A.R.S. § 28-692. A complaint was filed in the municipal court of Tucson, and the case was assigned to a particular judge. Cain filed a Notice of Change of Judge, claiming the right to a peremptory change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, 17 A.R.S. The judge denied the request, in a minute entry dated 26 March 1981, stating that Rule 10.2 applied only to the Superior Court. Cain then filed a Petition for Special Action in the Pima County Superior Court. The Superior Court upheld the municipal court, also stating that Rule 10.2 is limited to actions in Superior Court. Cain appealed to Division Two of the Court of Appeals, which affirmed the decisions of the Superior and City Courts. Cain v. City Court of Tucson, 135 Ariz. 101, 659 P.2d 654 (1982). We accepted jurisdiction of Cain’s petition for review of the opinion and decision of the Court of Appeals.

Rule 10.2 allows a peremptory change of judge, but specifically applies only to cases in Superior Court. The rule states:

“Rule 10.2 Change of judge upon request

a. Entitlement. In any criminal case in Superior Court, any party shall be entitled to request a change of judge.” Arizona Rules of Criminal Procedure, 17 A.R.S. (Emphasis added.)

In Anagnostos v. Truman, 25 Ariz.App. 190, 541 P.2d 1174 (1975), our Court of Appeals interpreted this language to exclude application of the rule to non-record courts such as a municipal court. This interpretation of Rule 10.2 was sound when contrasted with Rule 10.1 which allows challenge to judges “for cause” in “any criminal case.” Thus, while a challenge for cause is allowed by Rule 10.1 in any criminal case both in record and non-record courts, the peremptory challenge allowed by Rule 10.2 is, by its specific language, limited to the Superior Court. Cain contends, however, that there has been a significant change in the rules and operations of non-record courts that justifies granting peremptory challenges as a matter of fairness. We agree.

Prior to Anagnostos, supra, a defendant could, appeal from a non-record court to the Superior Court and be entitled to a trial de novo. Effective in 1975, however, the legislature amended A.R.S. § 22-371 to allow a transcript of proceedings to be made in criminal cases in non-record courts. A.R.S. § 22-371(C). See also Rule 2, Superior Court Rules of Appellate Procedure — Criminal, 17A A.R.S. Pursuant to this change, if such a transcript is made, and if the Superi- or Court deems the record to be adequate, the appeal is on the record only, not de novo. A.R.S. § 22-374(A). While this does not transform the non-record courts into “courts of record” as used by our constitution, Palmer v. Superior Court of Maricopa Cty., 114 Ariz. 279, 280, 560 P.2d 797, 798 (1977), it does act to deny the parties a trial de novo in Superior Court in many if not most cases.

In State ex rel Purcell v. City Court of City of Phoenix, 112 Ariz. 517, 543 P.2d 1146 (1975), we held that this change in operations entitled parties in non-record court proceedings to conduct discovery “as a matter of fairness and not under the specific provisions of Rule 15 * * * Rules of Criminal Procedure[,]” which also expressly applied only to actions in Superior Court. We stated:

“Where the defendant is not entitled to a trial de novo on appeal, the spirit of the Rules of Criminal Procedure must be applied to ensure fairness to the parties.” 112 Ariz. at 518, 543 P.2d at 1147.

The right to peremptory disqualification of judges in Superior Court is set out in Rule 42(f), Arizona Rules of Civil Procedure, 16 A.R.S., for civil cases, and Rule 10.2, Arizona Rules of Criminal Procedure, 17 A.R.S., for criminal cases. We believe that where there is no longer a right to a de novo review of decisions of the non-record courts, the parties to criminal actions in non-record courts should have, as a matter of fairness, the same right to peremptory challenges as parties in Superior Court. See State ex rel Purcell v. City Court of City of Phoenix, supra.

We therefore hold that Cain should have been allowed to exercise one peremptory change of judge. As we suggested in State ex rel Purcell v. City Court of City of Phoenix, supra, to give guidance in future cases,

“[t]he local rules of the forum should provide the method and time limitations on the exercise of [these]- rights. In the absence of such rules, the court may exercise its reasonable discretion * * 112

Ariz. at 518, 543 P.2d at 1147.

Our decision in this matter is to be given prospective application only.

The decision and opinion of the Court of Appeals is vacated. The case is remanded to the City Court of Tucson with directions to grant defendant Cain’s request for change of judge.

Reversed and remanded.

HOLOHAN, C.J., and GORDON, Y.C.J., concur.