93-13: Notice of Change of Judge

12/1993

Blanket use of peremptory challenges against a particular judge impermissible if purposes is to influence judge's decision; notices should be filed based on case-be-case review.

FACTS

The Presiding Judge of a City Court alleges the following facts and has requested that we issue a formal opinion pursuant to paragraph 4 of our Statement of Jurisdictional Policies: "Such opinions will be rendered only when requested by ...a member of the Arizona judiciary (state or federal); ...."

The City Prosecutor's Office has filed blanket notices of change of judge in criminal cases assigned to a particular municipal judge pursuant to Rule 10.2 of the Arizona Rules of Criminal Procedure, 17 A.R.S. The filing of the blanket preemptory challenges has apparently been prompted by the City Prosecutor's perception of the particular judge's judicial philosophy as perceived from prior rulings on questions of law.

QUESTION

May a Prosecutor's Office ethically issue blanket notices of change of judge pursuant to Rule 10.2 of the Arizona Rules of Criminal Procedure in cases assigned to a particular judge?

ETHICAL RULES INVOLVED

ER 1.7(b). Conflict of Interest: General Rule

ER 3.5. Impartiality and Decorum of the Tribunal

ER 5.1. Responsibilities of a Partner or Supervisory Lawyer

ER 5.2. Responsibilities of a Subordinate Lawyer

OPINION

ER 3.5(a) provides in pertinent part:

"A lawyer shall not:

(a) seek to influence a judge,... or an official of a tribunal by means prohibited by law;

*****”

Accordingly, in view of this language, two questions arise from the facts alleged in the request: (1) is the blanket use of peremptory challenges against a particular judge prohibited by law?; and (2) does such conduct by the Prosecutor's Office constitute an attempt to influence a judge?

Both issues were discussed by our Supreme Court in State v. City Court of City of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986). There the Chief City Prosecutor of Tucson promulgated a policy requiring all Deputy City Prosecutors to disqualify a particular Magistrate pursuant to Rule 10.2 of the Arizona Rules of Criminal Procedure in any criminal case involving the charge of D.U.I. In a three-week period, the City Prosecutor's Office filed 258 Notices of Change of Judge against the Magistrate. The Chief City Prosecutor stated that the reason for the policy was that the Magistrate "... had consistently been ruling against the State in an arbitrary and capricious manner, both in pretrial motions, and at trial." (150 Ariz. at 101)

The Supreme Court recognized that Rule 10.2 permits a party in a criminal case to disqualify a judge "for no cause or reason," and that Rule 10.2 applies to non-record courts such as City Courts. The Court's majority, however, found that the exercise of peremptory challenges by the City Prosecutor in the manner and for the reasons set forth above was an abuse of the Rules of Criminal Procedure for two reasons:

1. The procedure infringed upon the obligation of each Deputy City Prosecutor to exercise his or her individual professional judgment on a case-by-case basis; and

2. The policy amounted to an improper attempt to influence a judge in his judicial decisions, i.e., the effect of the policy was to bring pressure upon the particular Magistrate. (150 Ariz. at 102.)

The Court's opinion stated:

"The Tucson City Prosecutor's policy with its attendant effects was an attempt to intimidate not only [the Magistrate] but by example the entire Tucson City Court. As such the policy was an abuse of the rules [Rule 10.2] and a threat to the independence and integrity of the judiciary which cannot be allowed." (150 Ariz. at 102-103.)

Justice Holohan, in his dissenting opinion, added the following:

"If the purpose of the disqualification was to ‘educate’ the magistrate, the attorneys may have violated the Arizona Rules of Professional Conduct in attempting to improperly influence a judge. See, Rules of Professional Conduct ER 3.5." (150 Ariz. at 105.)

Therefore, the blanket filing of peremptory challenges against a particular judge by a Prosecutor's Office may constitute an abuse of Rule 10.2, and an attempt to influence a judge, all in violation of ER 3.5, depending upon the motivation underlying the practice. If the office policy of filing blanket notices against a particular judge is for the purpose of bringing (93-13) 2that judge "into line" on judicial decisions, such as legal rulings and sentencing, the conduct can be considered an attempt to influence a judge through an abuse of Rule 10.2. However, the majority opinion in State v. City Court of City of Tucson, supra, indicates that, if the decision to notice a particular judge is made on a case-by-case basis by each Deputy City Prosecutor in accordance with his or her professional judgment, rather than as a blanket office policy, the conduct would not necessarily constitute an abuse of Rule 10.2 or a violation of ER 3.5. (150 Ariz. at 102.)

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.