§ Rule 42(f) Change of Judge
Rule 42(f). Change of Judge
1. Change as a Matter of Right.
(A) Nature of Proceedings. In any action pending in superior court, except an action pending in the Arizona Tax Court, each side is entitled as a matter of right to a change of one judge and of one court commissioner. Each action, whether single or consolidated, shall be treated as having only two sides. Whenever two or more parties on a side have adverse or hostile interests, the presiding judge or that judge's designee may allow additional changes of judge as a matter of right but each side shall have the right to the same number of such changes. A party wishing to exercise that party's right to change of judge shall file a “Notice of Change of Judge.” The notice may be signed by an attorney; it shall state the name of the judge to be changed; and it shall neither specify grounds nor be accompanied by an affidavit, such as required by subsection (f)(2) of this rule, but it shall contain a certification by the party filing the notice or by the attorney that (i) the notice is timely, (ii) the party has not waived the right under subsection (f)(1)(D) of the rule, and (iii) the party has not previously been granted a change of judge as a matter of right in the case. A judge may honor an informal request for change of judge. When a judge does so, the judge shall enter upon the record the date of the request and the name of the party requesting change of judge. Such action shall constitute an exercise of the requesting party's right to change of judge.
(B) Filing and Service. The notice shall be filed and copies served on the parties, the presiding judge, the noticed judge and the court administrator, if any, in accordance with Rule 5, Arizona Rules of Civil Procedure.
(C) Time. Failure to file a timely notice precludes change of judge as a matter of right. A notice is timely if filed sixty (60) or more days before the date set for trial. Whenever an assignment is made which identifies the judge for the first time or which changes the judge within sixty (60) days of the date set for trial, a notice shall be timely filed as to the newly assigned judge if filed within ten (10) days after such new assignment. A notice of change of judge is ineffective if filed within three (3) days of a scheduled proceeding unless the parties have received less than five (5) days' notice of that proceeding or the assignment of the judge. The filing of such an ineffective notice neither requires a change of judge nor precludes the party who filed it from subsequently filing a notice of change of judge that otherwise satisfies the requirements of this rule.
(D) Waiver. After a judge is assigned to preside at trial or is otherwise permanently assigned to the action, a party waives the right to change of that judge as a matter of right when:
(i) the party agrees to the assignment; or
(ii) after notice to the parties
(aa) the judge rules on any contested issue; or
(bb) the judge grants or denies a motion to dispose of one or more claims or defenses in the action; or
(cc) the judge holds a scheduled conference or contested hearing; or
(dd) trial commences.
Such waiver is to apply only to such assigned judge.
(E) Cases Remanded From Appellate Courts. When an action is remanded by an appellate court and the opinion or order requires a new trial on one or more issues, then all rights to change of judge are renewed and no event connected with the first trial shall constitute a waiver.
(F) Assignment of Action. At the time of the filing of a notice of change of judge, the parties shall inform the court in writing if they have agreed upon a judge who is available and is willing to have the action assigned to that judge. An agreement of all parties upon such judge may be honored and, if so, shall preclude further changes of judge as a matter of right unless the judge agreed upon becomes unavailable. If no judge has been agreed upon, then the presiding judge shall immediately reassign the action.
If a judge to whom an action has been assigned by agreement later becomes unavailable because of a change of calendar assignment, death, illness or other legal incapacity, the parties shall be restored to their several positions and rights under this rule as they existed immediately before the assignment of the action to such judge.
2. Proceedings Based on Cause.
(A) Grounds. Grounds for proceedings based upon cause are stated in A.R.S. § 12-409 and proceedings under that statute shall be governed by this rule.
(B) Filing and Service. An affidavit shall be filed and copies served on the parties, the presiding judge and the court administrator, if any, in accordance with Rule 5, Arizona Rules of Civil Procedure.
(C) Timeliness and Waiver. An affidavit shall be timely if filed and served within twenty days after discovery that grounds exist for change of judge. No event occurring before such discovery shall constitute waiver of rights to change of judge based on cause.
(D) Hearing and Assignment. If a party makes proper service of an affidavit that meets the requirements of A.R.S. § 12-409, the presiding judge or that judge's designee shall forthwith conduct or provide for a hearing to determine the issues connected with the affidavit. The hearing judge shall decide the issues by the preponderance of the evidence. Under § 12-409(B)(5) the sufficiency of any “cause to believe” shall be determined by an objective standard, not by reference to affiant's subjective belief. Following the hearing, the presiding judge or that judge's designee shall expeditiously reassign the action to the original judge or make a new assignment, depending on the findings of the hearing judge. If a new assignment is to be made, it shall be in accordance with the provisions of A.R.S. § 12-411.
3. Duty of Judge After Filing of Notice or Affidavit.
(A) When a notice or an affidavit for change of judge is timely filed, the judge named in the notice or affidavit shall proceed no further in the action except to make such temporary orders as may be absolutely necessary to prevent immediate and irreparable injury, loss or damage from occurring before the action can be transferred to another judge. However, if the named judge is the only judge in the county where the action is pending, that judge shall also perform the functions of the presiding judge.
(B) If the court determines that the party who filed the notice or affidavit is not entitled to a change of judge, then the judge named in the notice or affidavit shall proceed with the action.