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Hornbeck v. Lusk - 2/26/2008

Arizona Court Of Appeals Division Two Holds That For Purposes Of Arizona Rules Of Criminal Procedure 10.2, 10.5(A), And 10.6, The Presiding Judge In Any County With Two Or More Justice Courts Is The Presiding Justice Of The Peace Of That County.


After Hornbeck's DUI case was assigned to Apache Junction Justice Court Judge Lusk, she filed a notice of change of judge as a matter of right pursuant to Rule 10, Ariz. R. Crim. P, requesting that the presiding judge of the Pinal County Justice Courts determine the reassignment of the case.  Instead, Judge Lusk reassigned the case himself.  Hornbeck filed a petition special action in Pinal County Superior Court, claiming the respondent judge had abused his discretion by reassigning the case himself.  This special action was dismissed by the Superior Court.  Hornbeck appealed.

The Arizona Court of Appeals reversed the judgment of the Superior Court and remanded, holding that when a county has two or more justice courts, the designated presiding judge shall serve as the presiding justice of the peace for that county for purposes of the rules of Arizona Criminal Procedure.  Under Rule 10.5(a), when a notice of change of judge is given, the case must be transferred to the presiding judge for reassignment.  To interpret the meaning of “presiding judge” in Rule 10.5(a), the court referenced the definition provided in Rule 1.4(a) and Arizona Revised Statutes § 22-103, which authorizes the justices of the peace of a county with multiple justice courts to designate a presiding judge.  The court also cited Administrative Order 2005-22, explaining that this administrative order “unequivocally assigns” those duties given to a presiding judge under the Supreme Court Rules to the presiding justice of the peace.  The court concluded that to construe Rule 10.5(a) in this manner accomplishes the goal of the rule by preventing the judge whom the litigant perceives is biased from taking further action in that case.

Judge Eckerstrom wrote the opinion, in which Judges Espinosa and Vásquez concurred.

 

 

        

 

Posted On: 2/29/2008