Claudia Patricia Higuera v. State of Arizona
241 Ariz. 76
| Ariz. Ct. App. | 2016Background
- Claudia Higuera was charged with theft; her case was assigned to the respondent judge at arraignment (Mar. 21).
- Counsel filed a Rule 10.2 "Notice of Change of Judge" on Mar. 30 with the court clerk and served the State, but did not provide a copy to the respondent judge’s chambers or division.
- Case management conferences occurred on Apr. 20 (Higuera present; counsel absent), Apr. 27 (both parties appeared; counsel and judge discussed pleas and set a new date), and May 13 (continued conference).
- At the Apr. 27 hearing the judge learned the clerk had the notice but counsel had not informed the court; the judge ruled Higuera waived her peremptory challenge by participating in a pretrial hearing and because the notice was not properly filed under local Rule 3.
- Higuera later served copies to the presiding judges, filed objections, and petitioned for special action review contesting waiver and proper service requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did participating in a case-management/pretrial conference waive the right to a peremptory change of judge under Ariz. R. Crim. P. 10.4(a)? | Higuera: waiver only occurs if the hearing involved contested issues of law or fact; this case-management conference was not such a hearing. | State/Respondent: Rule 10.4(a) unambiguously lists "any pretrial hearing" as a waiver event; participation in the Apr. 27 conference waived the right. | Court: Waiver occurred. Rule 10.4(a) unambiguously covers any pretrial hearing, not only contested ones. |
| Is a notice of change of judge effective absent service/copy to the assigned judge’s division/chambers under local Rule 3? | Higuera: filing with the clerk and serving the State satisfied Rule 10.2; separate service to the judge was not required. | Respondent: local Rule 3 required additional distribution; the notice was not properly filed/served. | Court: Did not decide the local Rule 3 issue because waiver was dispositive; regardless of filing adequacy, waiver forfeited the right. |
| Must waiver rules be applied only before filing a notice of change? | Higuera: once notice filed, the right has been exercised and cannot be later waived by participating in hearings. | Respondent: Rule 10.4 conditions waiver on participation, not on whether notice was previously filed; failure to assert the filed notice before or at the hearing and then participating causes irrevocable waiver. | Court: Held participation after filing but without asserting the notice results in waiver; right can be forfeited by participation. |
| Does applying Rule 10.4’s waiver provision impair the constitutional right to an impartial judge? | Higuera: broad waiver rule risks losing an impartial judge as a matter of procedure. | Respondent/State: Rule 10.1 preserves change for cause; peremptory strikes are a procedural grace and not constitutional. | Court: No constitutional violation; party can still seek disqualification for cause under Rule 10.1. |
Key Cases Cited
- State v. Poland, 144 Ariz. 388 (1985) (waiver found where defendant participated in hearings involving contested issues)
- Itasca State Bank v. Superior Court, 8 Ariz. App. 279 (1968) (no waiver where hearing did not involve contested issues of law or fact)
- City of Sierra Vista v. Cochise Enterprises, Inc., 128 Ariz. 467 (App. 1979) (pretrial stipulation dismissal did not constitute waiver because it was uncontested)
- Fragoso v. Fell, 210 Ariz. 427 (App. 2005) (court interprets procedural rules by their plain language)
- State v. Waller, 235 Ariz. 479 (App. 2014) (no fundamental error from denying judge-change-for-cause motion absent showing outcome would differ)