suggesting that similar problems arising under local court rules providing for one judge to preliminarily preside over case in early stages before case is assigned to a judge for trial easily avoided by always assigning trial to judge who has not participated in case
How later courts described this case
- suggesting that similar problems arising under local court rules providing for one judge to preliminarily preside over case in early stages before case is assigned to a judge for trial easily avoided by always assigning trial to judge who has not participated in case
- “Of course, one may with knowledge of the facts, consent that his case be tried before a judge he thinks is biased and prejudiced.”
- under older rule, failure to file affidavit at least three days before trial as required did not waive right because litigant “did not know who the trial judge was to be in time to comply”
- timeliness rule is subject to law of waiver, and one cannot waive right to change judge absent an opportunity to exercise it
Written by the judges who cited it.
The opinion
UDALL and PHELPS, Justices
(specially concurring).
We agree with the majority that the respondent judge was effectually disqualified and hence the alternative writ of prohibition should be made permanent. However, we arrive at this conclusion by a very different approach and process of reasoning than does the majority. Furthermore, it is our opinion that all the statements in the majority decision regarding the civil rules and prior decisions of this court involving civil cases are dicta — being wholly unnecessary to a determination of the instant case. Our view is that this entire matter is wholly governed by our criminal rules as there is no statutory provision making the civil rules applicable in criminal cases except as pertaining to rules of evidence— instructions and oath to jury. See, Section 44-1811, A.C.A.1939.
We believe our brethren of the majority have been led into this error by failing to recognize that since statehood there have been separate and distinct statutory or rule provisions in civil and criminal cases relative to obtaining the valuable substantive right of a change of judge because of alleged bias or prejudice.
In criminal cases the provisions for disqualification are to be found in Penal Code 1913, section 999, and in the 1928 Revised Code, section 5022, and these requirements vary in many essential particulars from those provided for in civil cases. This statutory law, with no material change, remained in force and effect until the adoption by this court of the present criminal rules of procedure which became effective on April 1, 1940. The only decisions we have been able to find interpreting these criminal statutes are Sam v. State, 33 Ariz. 383 , 265 P. 609 , and Bellamack v. State, 37 Ariz. 344 , 294 P. 622 . The latter case holds *316 that the fact a judge has taken the plea of accused and set date of trial does not necessarily mean he must try the case. The Sam case holds that an affidavit of bias and prejudice comes too late where not presented until after the trial begins, the court stating [ 33 Ariz. 383 , 265 P. 616 ] :
“The trial commences, for this purpose at least, when the jurors are first called into the box.”
These rulings do not create a road block or require us to “iron out” any phraseology, as what is therein stated is entirely consistent with our unanimous present holding.
The American Law Institute drafted a proposed code of criminal procedure which was later adopted by this court with at least one significant change. The governing criminal rules of procedure are numbered 248, 249, 250, 251, and 252 (now appearing as sections 44 — 1201 to 44-1205, inclusive, A.C.A.1939). These spell out in some detail how a change of judge may be effected. The final draft of Rule 251, as prepared by the Institute, provided that:
“The application for a change of judge may be made only before or at the time the cause is called for trial.”
This court no doubt recognized that at least in courts having but one presiding judge a provision that the defendant at the last moment might disqualify the judge was impractical and might prove very expensive and disrupting to orderly court procedure. It therefore amended same to read as follows:
“The application for change of judge-must be made at least three (3) days before the time the cause is called for trial.”
The instant case, calling for an interpretation of these rules, is the first to reach, this court. The problem presented is a. simple one. Petitioner meticulously followed the rules in seeking the disqualification of the respondent judge. We agree-with the majority that the trial court correctly ruled that under the circumstances-shown by this record the affidavit of disqualification was timely filed. Being timely filed the fact respondent had theretofore ruled upon preliminary law matters is of no legal significance. Hence, there is no-merit to respondent’s claim that he was required to try this case.
If perchance the decision in the Barry case interpreting the rules of procedure relative to disqualification of judges in: civil cases is wrong — a matter not now properly before us- — it can be corrected, when a civil case squarely presenting this question is before us. It should not be; overthrown in the instant proceeding.
If the adoption of the assignment system: in Maricopa County presents new problems; we are of the opinion these should be met by this court in a forthright manner by the-formulation and adoption of appropriate-rules to meet the situation. However, it is our opinion that the assignment system, of Maricopa County is in nowise involved.. As a matter of fact, under the views herein. *317 expressed — at least in criminal cases — the Maricopa judiciary are in an advantageous position because there are always other judges to whom a given case may be assigned for trial. We do not consider the views herein expressed are in any wise incompatible with the operation of such system.