Opinion
No. 1 CA-SA 17-0219
09-26-2017
OLIVER C., Petitioner, v. THE HONORABLE VERONICA W. BRAME, Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Commissioner, STATE OF ARIZONA, Real Party in Interest.
COUNSEL Maricopa County Office of the Public Advocate, Mesa Logan S. Mussman Counsel for Petitioner Maricopa County Attorney's Office, Phoenix E. Catherine Leisch Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Special Action from the Superior Court in Maricopa County
No. JV601453
The Honorable Veronica W. Brame, Commissioner
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Maricopa County Office of the Public Advocate, Mesa
Logan S. Mussman
Counsel for Petitioner
Maricopa County Attorney's Office, Phoenix
E. Catherine Leisch
Counsel for Real Party in Interest
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in which Judge Randall M. Howe and Judge Kent E. Cattani joined.
BEENE, Judge:
¶1 Oliver C. seeks special action relief from the superior court's denial of his request for change of judge pursuant to Arizona Rule of Procedure for the Juvenile Court ("Rule") 2(B). A special action is the only means for seeking review of a denial of a peremptory request for change of judge. Taliaferro v. Taliaferro, 186 Ariz. 221, 223 (1996). Therefore, Oliver C. has no adequate remedy by appeal, see Ariz. R.P. Spec. Act. 1(a), and our accepting jurisdiction is appropriate. And, because we conclude the superior court abused its discretion in finding Oliver C.'s request was untimely and waived, we grant relief. See Ariz. R.P. Spec. Act. 3(c); State v. Chapple, 135 Ariz. 281, 297 n. 18 (1983).
FACTS AND PROCEDURAL HISTORY
¶2 The State filed a delinquency petition against Oliver C. alleging child molestation and public sexual indecency with a minor. The superior court set an advisory hearing for June 16, 2017, however, Oliver C. was out of the country on that date and did not appear. The superior court did not appoint counsel for Oliver C. at this hearing and the matter was reset for a hearing on July 28, 2017. On July 28, Oliver C. was present, and counsel appeared on his behalf and filed a notice of change of judge.
¶3 The superior court denied Oliver C.'s notice for the following reasons: (1) the request for change of judge was untimely and (2) Oliver C. waived his right to a new judge when the court conducted the June 16 advisory hearing. Oliver C. argues that the court erred in denying his request for change of judge because he was not present at the initial advisory hearing and was not represented by counsel until the July 28 hearing.
DISCUSSION
¶4 A change of judge upon request in a juvenile case is governed by Rule 2(B). The pertinent portions of the rule provide as follows:
1. Grounds. Any party shall be entitled to request a change of judge as a matter of right.
2. Procedure. A party may exercise his or her right to a change of judge by making a request in open court on the record or by filing a pleading entitled "Notice of Change of Judge" signed by counsel, if any, stating the name of the judge to be changed. A notice of change of judge shall be filed within five (5) days after notice to the requesting party of assignment of the case to a judge. . . .
3. Waiver. A party loses the right to a change of judge upon request when the party participates before that judge in any contested matter or hearing. . . .
¶5 The superior court noted that the Office of the Public Advocate was assigned to the case at the June 16 hearing and concluded that Oliver C.'s July 28 request for a new judge was thus untimely pursuant to Rule 2(B)(2). But unless the superior court conducts an advisory hearing at which the juvenile is present, the time period in Rule 2(B)(2) does not begin to run. Denise S. v. Corsaro, 213 Ariz. 369, 371, ¶ 9 (App. 2006). Because Oliver C. did not appear at the June 6 hearing, the time period in Rule 2(B)(2) did not begin to run. For this reason, the superior court erred in finding Oliver C.'s notice untimely.
¶6 We similarly set aside the superior court's waiver finding. The waiver provision of Rule 2(B)(3) prevents a party from exercising a change of judge upon request after the party "participates before that judge in any contested matter or hearing." See Adrian S. v. Superior Court, 190 Ariz. 517, 519 (App. 1997) (noting that "[t]he waiver provisions of [Rule 2(B)(3)] prevent a party from exercising a peremptory change of judge after the party 'has reason to know how [the judge feels] about the juvenile and the merits of the case.'") (citation omitted). Here, at the June 16 hearing, nothing was contested. The purpose of an advisory hearing is to inform the juvenile, parent, or guardian of the allegations set forth in the petition and determine whether the juvenile admits or denies the allegations. See Rule Ariz. R.P. Juv. Ct. 28(A). No issue was submitted at the June 16 hearing that induced disclosure of the judge's feelings about Oliver C. or the case. Accordingly, there was no waiver under Rule 2(B)(3).
CONCLUSION
¶7 For the foregoing reasons, we accept jurisdiction and vacate the superior court's July 28, 2017 order denying Oliver C.'s request for change of judge.