HB2595 - 552R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-165, Arizona Revised Statutes, is amended to read:

START_STATUTE12-165. Venue; change of judge

A. All actions involving disputes arising under the jurisdiction of the tax court shall be brought in the superior court in Maricopa county.

B. Except for actions that involve disputes about taxes arising under title 42, chapters 11 through 16, an action involving a tax, impost or assessment that is filed in another county shall be transferred to the tax court.

C. A change of judge in the tax court shall be granted only for cause as prescribed in section 12-409 12-414. If a party to an action described by section 12-163, subsection B, exercises its right to a change of judge, the action shall not be reassigned to the tax court. END_STATUTE

Sec. 2. Repeal

Section 12-409, Arizona Revised Statutes, is repealed.

Sec. 3. Title 12, chapter 4, article 1, Arizona Revised Statutes, is amended by adding a new section 12-409, to read:

START_STATUTE12-409. Change of judge as a matter of right; criminal proceedings; procedure

A. Each side in a criminal case is entitled to one change of judge as a matter of right. If two or more parties on a side have adverse or hostile interests, the presiding judge or the presiding judge's designee may allow additional changes of judge as a matter of right. a criminal case, including a consolidated case, is treated as only having two sides.

B. A party that exercises a change of judge as a matter of right is not entitled to another change of judge as a matter of right. A party is not entitled to a change of judge as a matter of right in a case that is remanded for resentencing.

C. A party may exercise a right to change of judge by Filing a document entitled "Notice of Change of Judge" that is signed by an attorney or a self-represented defendant, that states the name of the judge to be changed and includes an avowal that the party is making the request in good faith and not for an improper purpose. An avowal made by an attorney is in the attorney's capacity as an officer of the court. FOR the purposes of this subsection, "improper purpose" means any of the following:

1. For the purpose of delay.

2. To obtain a severance.

3. To interfere with the judge's reasonable case management practices.

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

5. To use the rule against a particular judge in a blanket fashion by a prosecuting agency, defender group or law firm.

6. To obtain a more convenient geographical location.

7. To obtain an advantage or avoid a disadvantage in connection with a plea bargain or at sentencing, except as allowed by rule 17.4(g), Arizona rules of criminal procedure.

D. If a notice of change of judge is timely filed, the judge may not proceed further in the action except to enter any necessary temporary orders before the action can be transferred to the presiding judge or the presiding judge's designee. If the named judge is not the presiding judge, that judge may continue to perform the functions of the presiding judge.

E. Except as provided in subsection F of this section, or if extended by a local court rule, a party must file a change of judge not later than ten days after any of the following occurs:

1. The arraignment if the case is assigned to a judge and the parties are given actual notice of the assignment at or before the arraignment.

2. The superior court clerk's filing of a mandate issued by an appellate court.

3. Actual notice to the requesting party of the assignment of the case to a judge if paragraph 1 or 2 of this subsection does not apply.

F. If a new judge is assigned to a case less than ten days before trial, including the date of the assignment, a notice of change of judge must be filed with appropriate actual notice to the other party or parties, not later than 5:00 P.M. on the next business day following actual receipt of a notice of the assignment or by the start of trial, whichever occurs earlier.

G. If a notice of change of judge is timely filed, the notice may inform the court that all of the parties have agreed on a judge who is available and willing to accept the assignment. Such an agreement may be honored and, if honored, the agreement bars further changes of judge as a matter of right unless the agreed-on judge later becomes unavailable. If a judge to whom the action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other legal incapacity, the parties may assert any rights under this section that existed immediately before the assignment of the action to that judge.

H. If a timely notice of judge has been filed and no judge has been agreed on pursuant to subsection G of this section, the presiding judge must immediately reassign the action to another judge.

I. A party loses the right to a change of judge under this section if the party participates before that judge in any contested matter in the case, a proceeding under Rule 17, Arizona rules of criminal procedure, or the beginning of trial.

J. Unless previously exercised, a party may exercise a change of judge as a matter of right following an appellate court's remand for new trial and an event that is connected with the first trial does not constitute a waiver. A party may not exercise a change of judge as a matter of right following a remand for resentencing. END_STATUTE

Sec. 4. Section 12-410, Arizona Revised Statutes, is amended to read:

START_STATUTE12-410. Punishment for contempt for filing affidavit for change of judge prohibited

No A judge or court shall not punish for contempt any one person making, filing or presenting the affidavit provided for by section 12-409, 12-414 or any motion founded thereon. END_STATUTE

Sec. 5. Title 12, chapter 4, article 1, Arizona Revised Statutes, is amended by adding sections 12-412, 12-413 and 12-414, to read:

START_STATUTE12-412. Change of judge for cause; criminal proceedings

A. In a criminal case A party is entitled to a change of judge if the party shows that the assigned judge's interest or prejudice would prevent a fair and impartial hearing or trial.

B. A party seeking a change of judge for cause must file a motion not later than ten days after discovering that grounds exist but may not file a motion after a hearing or trial begins. The motion must state specific grounds for the change of judge and be supported by an affidavit. Allegations of interest or prejudice that prevent a fair and impartial hearing or trial and that arise after commencement of the hearing or trial may be preserved for appeal by making an appropriate motion.

C. If a party files a timely motion for change of judge, the judge may not proceed except to enter any necessary temporary orders before the action can be transferred to the presiding judge or the presiding judge's designee. If the named judge is the presiding judge, the presiding judge must assign the motion to another judge.

D. After a party files a timely motion under this section, the presiding judge must PROMPTLY provide for a hearing on the motion before a judge other than the challenged judge. After holding the hearing, the hearing judge must decide the issues by a preponderance of the evidence and enter an order stating the findings and ruling on the motion. The hearing judge must then return the matter to the presiding judge.

E. The presiding judge must promptly assign the action back to the original judge if the motion is denied or must make a new assignment if the motion is granted.

F. If there are multiple defendants, the grant of a motion for change of judge filed by one or more defendants does not require a change of judge as to the other defendants even though the change of judge may result in severance for trial purposes. END_STATUTE

START_STATUTE12-413. Change of judge for cause; civil proceedings; definitions

A. In any civil action in superior court, except for an action in the Tax Court, each side is entitled as a matter of right to a change of one judge. Each action, whether single or consolidated, must be treated as having only two sides. If two or more parties on a side have adverse or hostile interests, the presiding judge may allow additional changes of judge as a matter of right but each side must have the right to the same number of changes.

B. A party seeking a change of judge as a matter of right must either file a written notice or make an oral request on the record in the following manner:

1. A written notice of change of judge must be served on all other parties, the presiding judge, the noticed judge and the court administrator, if any, by any method provided in Rule 5(c), Arizona Rules of civil procedure. The notice may not specify grounds for the change of judge but must contain both of the following:

(a) the name of the judge to be changed.

(b) a statement that:

(i) the notice is timely under Rule 42.1(c), Arizona rules of civil procedure.

(ii) A waiver has not occurred under Rule 42.1(d), Arizona rules of civil procedure.

(iii) the party's side has not been granted a change of judge as a matter of right previously in the action.

2. An oral request for change of judge must include the information required by Rules 42.1(b)(1)(A) and (B), Arizona rules of civil procedure. When made, the request is deemed an oral notice of change of judge for the purposes of this section. The judge must enter on the record the date of the oral notice, the requesting party's name and the judge's disposition of the request. A party who obtains a change of judge based on an oral notice is deemed to have exercised the party's right to a change of judge under Rule 42.1(a), Arizona rules of civil procedure. For the purposes of this section, an oral notice is deemed filed on the date that it is made on the record.

C. A party is precluded from obtaining a change of judge as a matter of right unless the party files a timely notice. The following deadlines apply:

1. Notice must be filed within ninety days after the party giving notice first appears in the case.

2. If an assignment identifies a judge for the first time after the time period set forth in Rule 42.1(c)(1), Arizona rules of civil procedure, has expired or fewer than ten days before that time period will expire, notice is timely if the notice is filed within ten days after the party receives notice of the new assignment or within ten days after the new judge is assigned, whichever is later.

3. If the right to a change of judge is renewed under Rule 42(e), Arizona rules of civil procedure, notice is timely if the notice is filed within fifteen days after issuance of the appellate court's mandate under rule 24, Arizona Rules of Civil Appellate Procedure.

4. The notice is ineffective if the notice is filed within three days of a scheduled proceeding unless the parties have received fewer than five days' notice of that proceeding or the judge's assignment. The filing of an ineffective notice does not require a change of judge and does not bar the party who filed it from later filing a notice of change of judge that satisfies this section's requirements.

D. A party waives the right to a change of judge who is assigned to preside over any proceeding in the action if any of the following applies:

1. the party agrees to the assignment.

2. the judge rules on any contested issue or grants or denies a motion to dispose of any claim or defense if the party had an opportunity to file a notice of change of judge before the ruling is made.

3. a scheduling, pretrial, trial-setting or similar conference begins.

4. a scheduled contested hearing begins.

5. trial begins.

E. In actions remanded from an appellate court, the right to a change of judge is renewed and an event that is connected with the first trial does not constitute a waiver if both of the following apply:

1. the appellate decision requires a new trial.

2. the party seeking a change of judge, or the side on which the party belongs, has not previously exercised the party's right to a change of judge in the action.

F. If a notice is timely filed and a waiver has not occurred, the judge named in the notice may not proceed further in the action except to make such temporary orders as are absolutely necessary to prevent immediate and irreparable injury, loss or damage from occurring before the action can be transferred to another judge. If the named judge is the only judge in the county, that judge may also reassign the case.

G. the named judge may proceed with the action If the court determines that the party who filed the notice is not entitled to a change of judge.

H. If a notice of change of judge is filed, the parties should inform the court in writing if the parties have agreed on an available judge who is willing to hear the action. An agreement of all parties may be honored and, if honored, bars further changes of judge as a matter of right unless the agreed-on judge becomes unavailable. If a judge to whom an action is assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other incapacity, the parties may assert any rights under this section that existed immediately before the assignment to that judge. If no judge is agreed on, the presiding judge must promptly reassign the action.

I. for the purposes of this section:

1. "judge" means any judge, judge pro tempore or court commissioner.

2. "presiding judge" means the presiding superior court judge in the county where the action is pending or that judge's designee. END_STATUTE

START_STATUTE12-414. Change of judge for cause; civil proceedings; definitions

A. In any civil action in superior court, A party seeking a change of judge for cause must establish grounds by affidavit. A party may allege the following grounds for a change of judge:

1. That the judge has been engaged as counsel in the action before appointment or election as judge.

2. That the judge is otherwise interested in the action.

3. That the judge is of kin or related to either party to the action.

4. That the judge is a material witness in the action.

5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice or interest of the judge the party cannot obtain a fair and impartial trial.

B. The affidavit must be filed and copies served on the parties, the presiding judge, the noticed judge and the court administrator, if any, by any method provided in Rule 5(c), Arizona rules of civil procedure.

C. A party must file an affidavit seeking a change of judge for cause within twenty days after discovering that grounds exist for a change of judge. Case events or actions taken before that discovery do not waive a party's right to a change of judge for cause.

D. If a party timely files and serves an affidavit that complies with subsection A of this section:

1. Within five days after the affidavit is served, any other party may file an opposing affidavit or a responsive memorandum that does not exceed two pages in length. a reply memorandum or affidavit is not permitted unless authorized by the presiding judge.

2. The presiding judge may hold a hearing to determine the issues raised in the affidavit or may decide the issues based on any affidavits and memoranda filed by the parties.

3. On filing of the affidavit for cause, the named judge may not proceed further in the action except to make such temporary orders as are absolutely necessary to prevent immediate and irreparable harm from occurring before the request is decided and the action transferred. if the named judge is the only judge in the county, that judge may also perform the functions of the presiding judge.

4. The presiding judge must decide the issues by a preponderance of the evidence. The presiding judge must determine the sufficiency of any cause to believe as prescribed in subsection A, paragraph 5 of this section by an objective standard and not by reference to the affiant's subjective belief. the presiding judge must promptly reassign the action if grounds for disqualification are found, and Any new assignment must comply with section 12-411.

5. the named judge may proceed with the action If the court determines that the party who filed the affidavit is not entitled to a change of judge.

E. for the purposes of this section:

1. "judge" means any judge, judge pro tempore or court commissioner.

2. "presiding judge" means the presiding superior court judge in the county where the action is pending or that judge's designee. END_STATUTE