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Kay S. v. Mark S. - 9/7/2006

Arizona Court of Appeals Division One Holds That Lawyer's Service as Judge Pro Tem Created Appearance of Impropriety in Client's Matter Pending in Same Division in Which Lawyer Served.


Steven Everts was counsel for Father in this dissolution proceeding in Maricopa County Superior Court. Everts had, both before and during the pendency of this proceeding, served as a judge pro tempore in the division of the superior court in which this proceeding was heard. His service as a judge pro tem included Everts filling in for Judge Oberbillig, the judge before whom this dissolution proceeding was heard. After learning of Everts' service, Mother moved to disqualify Judge Oberbillig and to vacate his prior determinations. Presiding Judge Armstrong denied the motions. As to whether Everts' service in Judge Oberbillig's court created an appearance of impropriety under Ariz. R. Sup. Ct. 81, Division One first considered applications D(3) and D(4) of that Rule. The Court held that neither of these applications, which govern a lawyer's service as a judge pro tem, conclusively resolved whether a lawyer can, as here, serve repeatedly but at irregular intervals, as a pro tem judge in the specialized division of a court in which he practices. The Court thus turned to Rule 81, Canon 3 (E)(1)(a), asking whether Judge Oberbillig's impartiality, under the circumstances, "might reasonably be questioned." The Court held that the unique circumstances of the case allowed for reasonable questioning of Judge Oberbillig's impartiality and thus the Judge should have been disqualified. Having concluded that the judge should have been disqualified, the Court then concluded that the circumstances required that it vacate Judge Oberbillig's judgment. Applying State v. Salazar, 182 Ariz. 604 (App. 1995), the Court here determined that the critical inquiry was whether there was a risk of injustice to the parties. The Court reasoned that the appropriate test of the risk is whether the challenged decisions would have been made by a judge whose partiality was not reasonably subject to question. The Court went on to note that once an appearance of impropriety has been established, the burden shifts to the party defending the judgment to show that the outcome would have been the same before such a judge. Here, the Court concluded that the record did not support a conclusion that the nuanced, difficult decisions made by Judge Oberbillig would have been substantially the same before a judge whose impartiality was unquestioned. Thus, the Court vacated the judgment and remanded with instructions to the superior court.

Judge Snow authored the opinion in which Presiding Judge Ehrlich and Judge Gemmill joined.

Posted On: 9/12/2006