IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

BARBARA HORNBECK,

Petitioner/Appellant,

v.

THE HON. DENNIS LUSK, Justice of

the Peace, Apache Junction Precinct,

Pinal County Justice Courts; and THE

PINAL COUNTY ATTORNEY’S

OFFICE,

Real Parties in Interest/Appellees. )

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) 2 CA-CV 2007-0139

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

Cause No. CV200701676

Honorable William J. O’Neil, Judge

REVERSED AND REMANDED

Neal W. Bassett and Natalee Segal

James P. Walsh, Pinal County Attorney

By Joe A. Albo Phoenix

Attorneys for Petitioner/Appellant

Florence

Attorneys for Real Parties in Interest/

Appellees

E C K E R S T R O M, Presiding Judge. FEB 26 2008 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

¶1 Appellant Barbara Hornbeck appeals from the superior court’s denial of her

petition for special action. In it, she asserted that the respondent judge, appellee Hon.

Dennis Lusk, justice of the peace of the Apache Junction Justice Court, abused his discretion

when he reassigned her case rather than transferring it to the presiding justice of the peace

of Pinal County for reassignment. Because we conclude the superior court erred in ruling

the respondent judge was entitled to reassign the case under the relevant rules of criminal

procedure, we reverse the judgment denying special action relief and remand the case for

further proceedings.

¶2 When reviewing the superior court’s denial of relief in a special action, we

view the facts in the light most fa vorable to sustaining the court’s ruling. M cCown v.

Patagonia Union High Sch. Dist

. , 129 Ariz. 127, 127, 629 P.2d 94, 94 (App. 198 1).

Hornbeck was charged with three counts of driving under the influence of an intoxicant in

Apache Junction Justice Court. After discovering her case was assigned to the respondent

judge, she filed a notice of change of judge as a matter of right pursuant to Rule 10.2, Ariz.

R. Crim. P. In that notice, she asserted that the presiding judge of the Pinal County justice

courts, rather than the respondent judge, should determin e the reassignment of her case.

Essentially determining that he was the presiding judge of Apache Junction Justice Court,

the respondent judge reassigned the case himself, assigning it to a justice of the peace pro

tempore serving in the Apache Junction precinct.3

¶3 Hornbeck filed a petition for special action in Pinal County Superior Court,

arguing the respondent judge abused his discretion when he failed to transfer her notice to

the presiding justice of the peace of Pinal County. The superior court dismissed Hornbeck’s

petition, concluding that each justice of the peace is generally only authorized to preside in

his or her own elected precinct and that no specific authority exists for the presiding justice

of the peace of Pinal County to reassign cases pursuant to Rule 10.2. This appeal followed.

¶4 Under most circumstances, we review a superior court’s denial of relief in a

special action for an abuse of discretion. S toudamire v. Simon

, 213 Ariz. 296, ¶ 3, 141 P.3d

776, 777 (App. 2006). However, when the resolution of an issue depends on the

interpretation and interplay of court rules and statutes, we review the superior court’s ruling

de novo. State ex rel. Brannan v. Williams , 217 Ariz. 207, ¶ 4, 171 P.3d 1248, 1250-51

(App. 2007). Hornbeck argues the superior court erred when it concluded the respondent

judge was the presiding judge under the relevant rules of criminal procedure.

¶5 Several rules of criminal procedure are relevant to the issue presented here.

Rule 10.2(a) provides that, in any noncapital criminal case, “each side is entitled as a matter

of right to a change of judge.” Rule 10.5(a), Ariz. R. Crim. P., provides that, after a party

requests a change of judge under Rule 10.2, “the case shall be transferred immediately to

the presiding judge who shall reassign the case to a new judge.” Finally, Rule 1.4(a), Ariz.

R. Crim. P., defines “presiding judge” in pertinent part, as follows: “For other courts [than

superior court]: the judge, or, in courts having more than one judge, the judge designated as4

presiding judge by the appropriate authority.” In 2004, our legislature enacted A.R.S. § 22-

103, which provides that, in counties with two or more justice court precincts, “the justices

of the peace in that county shall periodically select one justice of the peace to serve as

presiding justice of the peace.” See also 2004 Ariz. Sess. Laws, ch. 98, § 1.

¶6 We use principles of statutory construction to interpret procedu ral rules.

Fragoso v. Fell

, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App. 2005). In doing so, we read

the rules “in conjunction with related statutes and harmoniz[e] the two whenever possible.”

Id. Our purpose is to interpret the statutes and rules according to the drafters’ intent, and

we will fir st look to the plain language of the statute or rule as the best evidence of that

intent. I d. If there is “uncertainty about the meaning or interpretation of the [rule]’s terms,”

we are required to employ “methods of statutory interpretation that go beyond the [rule]’s

literal language,” such as “consideration of the [rule]’s context, language, subject matter,

historical background, effects and consequences, and spirit and purpose.” E stancia Dev.

Assocs. v. City of Scottsdale

, 196 Ariz. 87, ¶ 11, 993 P.2d 1051, 1054 (App. 1999). If the

language of a rule can be interpreted in more than one way, we honor the interpretation that

would achieve the general goals of the scheme in question. Estate of Hernandez v. Ariz.

Bd. of Regents , 177 Ariz. 244, 251, 866 P.2d 1330, 1337 (1994).

¶7 Here, Hornbeck and the respondent judge have int erpreted the language of

Rule 1.4, which defines “presiding judge,” in two dif ferent and plausible ways. The

respondent judge concluded that, because he is the sole judge of the Apache Junction Justice5

Court, he is the presiding judge under the terms of Rule 1.4. S ee Ariz. R. Crim. P. 1.4(a) (in

courts with only one judge, lone judge is “presiding”). By contrast, Hornbeck contends the

justice courts of Pinal County are a unitary court with different precincts; therefore, the

respondent judge is but one justice of the peace of many in that court. Accordingly, under

Rule 1.4, Rule 10.5, and § 22-103, the “presiding judge” would be the presiding justice of

the peace of Pinal County. S ee Ariz. R. Crim. P. 1.4(a) (in courts with more than one judge,

presiding judge is judge so designated by the appropriate authority).

¶8 The superior court rejec ted Hornbeck’s interpretation of the rules, in part

because it found no Arizona law authorizing the presidin g justice of the peace of Pinal

County to reassign cases under the rules of criminal procedure, a conclusion suggesting that

it viewed the Apache Junction Justice Court, rather than the Pinal County Justice Courts,

as the relevant entity addressed in Rule 1.4(a). But, because we address the applicability

of a rule promulgated by our supreme court, our analysis of Rule 1.4(a) as applied by Rule

10.5(a), must be guided by that court’s intent. See Bergeron ex rel. Perez v. O’Neil , 205

Ariz. 640, ¶ 29, 74 P.3d 952, 962 (App. 2003) ( local courts may not make orders that

“frustrate the intent of a [supreme court] rule”).

¶9 In March 2005, the supreme court issued Administrative Order No. 2005-22.

That order mirrors the language of § 22-103 in requiring “any county” with more than one

justice court precinct to provide for the selection of a presiding justice of the peace and

expressly sets forth the duties of that presiding judge, including:1 Although Rule 1.4, Ariz. R. Crim. P., standing alone, is arguably ambiguous about

what administrative unit is encompassed by the term “court,” i t is clear that the term

“presiding judge” applies equally to justic es of the peace in the context of applying the

Arizona Rules of Criminal Procedure.

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1. Exercise administrative supervision, as directed b y the

Supreme Court, over the justices of the peace, pro tem

judges and hearing officers.

. . . .

4. Perform any duties and carry out any responsibilities that

are provided by law, rules or administra tive orders of the

Supreme Court.

Thus, the express language of the administrative order not only suggests that counties are the

relevant administrative unit for justices of the peace, it also u nequivocally assigns to the

presiding justice of the peace, selected countywide, those duties given to a presiding judge

under supreme court rules. 1 Accordingly, under the terms of Administrative Order No.

2005-22, the presiding justice of the peace for Pinal County—not the justice of the peace

for its subdivision, Apache Junction Justice Court—is responsible for carrying out the duties

of a presiding judge as described by Rule 10.5(a).

¶10 Real Party in Interest the Pinal County atto rney’s office (hereinafter “the

state”) counters that Order No. 2005-22 “is silent on the issue of p[er]emptory requests for

a change of judge” under the rules of criminal procedure. We disagree. The language of the

order requires the presiding justice of the peace to “[p]erform any duties and carry out any

responsibilities that are provided by

. . . rules

. . . of the Supreme Court.” (Emphasis added).2 Pinal County’s justices of the peace, elected by the voters of specific precincts, see

A.R.S. §§ 22-101(A) and 22-111, sit in sometimes geographically remote venues. Here, for

example, the current presiding Pinal County justice of the peace, Marie Lorona, adjudicates

disputes in the Eloy precinct, while the resp ondent judge has been elected to serve the

Apache Junction precinct, whose courthouse is located a considerable distance away. S ee

Justice Courts Precinct Map, http://co.pinal.az.us/Justicecourts. http://co.pinal.az.us/Justicecourts.

7 We can think of no way to describe the Arizona Rules of Criminal Proce d ure, which are

promulgated by the Arizona Supreme Court, other than as rules of the supreme court. And

we reject the suggestion that the order is somehow inapplicable to the specific rules of

c riminal procedure relevant here. To the contrary, the order expressly confers on the

presiding justice of the peace “any” duties and “any” responsibilities given by all the rules

promulgated by the supreme court. Because we presume the supreme court was aware of

the content of its own pre-existing rules when it adopted Administrative Order No. 2005-22,

cf. Daou v. Harris

, 139 Ariz. 353, 357, 678 P.2d 934, 938 (1984) (legislature presumed to

be aware of existing laws when passing new legislation), we assume it fully intended

presiding justices of the peace to perform the duties enumerated for presiding judges under

those rules, including those duties specified in Rule 10.5(a).

¶11 The state also argues that the interpretation of Rules 1.4 and 10.5(a) we now

adopt is incorrect because the authority of a justice of the peace to act in other precincts is

li mited by law. 2 Specifically, the state observes that A.R.S. § 22-114(A) itemizes those

limited circumstances when a justice of the peace can preside and act in another precinct and3 Not hing in Rule 10.5(a) or any other pertinent provision would prohibit Justice

Lorona from assigning any other qualified judicial officer of the Pinal County justice courts

to handle the case.

8 asserts that none of those circumstances exists here. In its cogently written and

comprehensive order, the superior court appeared to adopt this reasoning.

¶12 But we cannot agree that § 22-114(A) prohibits a presiding justice of the peace

from reassigning a case that has arisen in a precinct other than his or her own. To the

contrary, that provision broadly authorizes a justice of the peace to act as a judicial officer

in other precincts upon the “absence, illness or inability to act or upon the request of the

justice of the other precinct.” § 22-114(A) (emphasis added). Given our conclusion that

the respondent judge cannot be characterized as a presiding judge for the purposes of Rule

10.5(a), when read in light of Administrative Order No. 2005-22, he is unable to reassign

cases upon receipt of a notice of change of judge filed pursuant to Rule 10.2. Because he

is therefore unable to act to reassign cases, § 22-114(A) authorizes the presiding justice of

the peace of Pinal County to exercise her duty under Rule 10.5(a) to execute the

reassignment. 3 S ee Fragoso

, 210 Ariz. 427, ¶ 7, 111 P.3d at 1030 (we must read rules and

statutes in harmony when possible).

¶13 Last, we observe that ou r construction carries out the implicit goal of the

relevant rules. Once a litigant has filed a motion for change of judge, those rules generally

prevent the originally assigned judge, whom the litigant presumably has removed from the

case for some perceived bias, from taking any further actions affecting that litigant’s case.9

See Court Comment to 2004 Amendments to Rules 10.2(a) through (d) (“The purpose of

the rules is to allow a party to ask for a new judge when a party may perceive a bias that

does not rise to disqualification [for cause].”); see also Ariz. R. Crim. P. 10.5(a) (“case shall

be transferred immediately to the presiding judge” upon filing of Rule 10.2 motion); Ariz.

R. Crim. P. 10.6 (“[W]hen a motion or request for change of judge is timely filed under this

rule, the judge shall proceed no further in the action, except to make such temporary orders

as may be necessary in the interest of justice before the action can be transferred to the

presiding judge

. . . .”); see also Nordstrom v. Leonardo

, 214 Ariz. 545, ¶ 12, 155 P.3d

1069, 1072 (App. 2007) (strictly enforcing Rule 10.6 requirement that court “proceed no

further in the action”).

¶14 Were we to interp ret the rules as the respondent judge did—characterizing

each justice-of-the-peace precinct as a separate court for purposes of Rule 1.4(a) and

therefore concluding that each justice of the peace, elected by precinct, is a presiding judge

under the rules—the general intent of Rules 10.5(a) and 10.6, that a preempted judge not

choose his or her successor for the case, would be thwarted in our justice courts. S ee A.R.S.

§§ 22-101(A) and 22-111 (all Arizona counties divided into justice court precincts with one

elected justice of the peace per precinct). Because we adopt the interpretation of the rules

most consistent with their overall goal, see Estate of Hernandez

, 177 Ariz. at 251, 866 P.2d

at 1337, we conclude that, for purposes of Rules 10.2, 10.5(a), and 10. 6, the “presiding10

judge” in any county with two or more justice courts is the presiding justice of the peace of

that county.

¶15 For the foregoing reas ons, we reverse the judgment of the superior court

denying special action relief and remand the case to the Apache Junction Justice Court for

further proceedings consistent with this decision.

____________________________________ PETER J. ECKERSTROM, Presiding Judge

CONCURRING:

____________________________________ PHILIP G. ESPINOSA, Judge

____________________________________ GARYE L. VÁSQUEZ, Judge