*1
Inc.,
238, 100
446 U.S.
S.Ct.
64 L.Ed.2d
actual program for the 12; grades through
for twice the amount
actually spent for orthopedic children with jé
impairments; more than of the amount
budgeted hearing for children with impair- jé
ments; more than budgeted of the amount disabilities; multiple children with more jé budgeted than of the amount for children impairments pre-school visual chil- speech dren language delay; jé
more than budgeted pre- of the amount
school developmental children with severe
delays.
¶49 I statutory process believe the constitutional,
terminating teachers is in all
respects payment provi- other than the fee Generally,
sion. provi- if an unconstitutional
sion is removed from the statute and the provides
statute still a comprehensive treat- subject,
ment particular presumed of a legislative
that the intent would be to leave remaining Republic statute in effect.
Inv. I Surprise, Fund v. Town 166 Ariz. (1990). I think here, general applies rule and I would hearing.
remand the case for a new
practical problem presenting already
the same board that has heard the partially
matter can be ameliorated refer-
ring hearing provided the case to a officer as 15-541,
for A.R.S. section which went into
effect after the Board heard this case.
Davis, Terry Forshey, & P.C. A. McKee Phoenix, Davis, Appellee. Vining,
Pamela L. P.C. Pamela L. Respondent Vin- court has received from ing, Scottsdale, Appellant. lengthy letter, Patricia Davis a dated Jan. personally addressed to the judge, copies
OPINION
to counsel.
In the letter
considerable evidence is offered to which
*3
GRANT, Judge.
testimony.
supporting
there was at trial no
¶
(“Wife”)
1 Patricia
appeals
K. Davis
Also,
predictably,
and
the letter is substan-
judgment
from a
and decree
dissolution of
tially
by
colored
the same emotions which
marriage.
argument
Her main
is that
trial,
colored the
as well as accusations
by resolving
trial court
disputed
erred
against Respondent’s
lawyer
own
and ac-
parties
solely
issues between the
based
on
lawyer
cusations that
and
Petitioner
testimony and other
evidence
had been
both lied. Respondent attaches a letter
by
submitted at a trial conducted
another
lawyer
from her
to her
accusing her
judge.
predecessor judge
had declared
lying;’ it
represented
part
as
of a law-
mistrial
and recused himself without mak-
yer-client dispute
chronicled
the Re-
ing any rulings on the evidence taken. Wife
spondent’s letter;
it demonstrates
total
us
asks
to hold that
successor trial judge
disintegration
lawyer-client
of the
relation-
failing
erred
conduct new trial. Alter-
ship
places
judge in
and
the middle of
natively,
argues
she
trial court erred
rulings might
no matter what
or abused its
its
discretion
on the
be made on
of the
the merits
case.
issues,
namely
prop-
the division of
that,
Judge Howe then stated
under the cir-
debt,
erty,
the allocation of
the award of
motion,
cumstances
his own
and on
he was
maintenance,
spousal
the award of
attor-
declaring
recusing
a mistrial and
himself
ney’s
against
fees
her.
from further consideration of the
He
case.
for reassignment
transferred the case
FACTS AND PROCEDURAL HISTORY
advised counsel
a new
motion to set for
¶2 Husband and
were
Wife
married on
newly-assigned
trial should be filed with the
10,1968.
October
Husband filed for dissolu-
division.
6,1995.
April
of marriage
tion
¶
immediately
5 The
reassigned
case was
proceeded
3 The trial
Judge
before
Judge
filed
Hutt. Husband
a Motion for
24, 1996,
Howe and concluded on December
January
asking
Reconsideration on
testimony.
days
parties
after three
Both
the court to vacate the
of mistrial and
represented by
were
counsel at the trial.
upon
to rule
the evidence
had been
trial,
during
Twice
Wife’s counsel had
presented
arguing
at
trial. Besides
mistrial,
by
alleging
moved for
bias
the trial
mistrial,
there
was no basis
Husband
judge against
him and his
both
client. The
argued that
the economic ramifications of
trial
denied both motions.
having
retry
potentially
case would
trial,
At
conclusion
parties’ community
devastate the
estate.
post-trial,
Howe ordered counsel to submit
¶ Meanwhile,
closing arguments
proposed
presided
written
Hutt
over
findings
pretrial
of fact
at
and conclusions
law
conference
which both of the
7,1997.
January
parties
present.
Both counsel submitted the
counsel were
Husband’s
requested pleadings.
January
persuade
parties
Hutt
On
tried to
that,
reasons,
any rulings,
thing
before
Howe made
for economic
the sensible
submitted a letter she herself had written to
to do would be to allow her to decide the
Howe,
counsel,
transcript
issues in the
copies
which
ease from
place
made
before
she
her own summation
the evidence
had taken
arguments
strongly
Although
agreed
pro-
issues and
on the
Howe.
Wife,
posal,
performance
attorney by
representing
of her
who
now
her-
criticized
withdrawn,
being represented.
she
self after her trial
had
whom
was still
After
counsel
letter,
commented,
reading
give
would not
consent.
her
follows,
requiring
entered an
on the record:
order
12, 1997, and denied
sixty days prior
riage
on December
advise the court
least
timely
“by
Trial. Wife
they
proceed
wanted to
Wife’s Motion
New
trial whether
from the decree and
transcript
trial De Novo.”
her notice of
filed
New Trial.
from the denial of the Motion for
18, 1997, Judge Hutt ruled
March
On
Reconsideration,
on Husband’s Motion
DISCUSSION
acting on behalf of
stating that she was
Although
stated that she
Howe.
she
by merely
review-
erred
motion,
she
final
denying
added
held
transcript of the trial
before
ing the
stating that
ruling,
to her
paragraph
original
taking
tes-
rather than
Judge Howe
review
that she could
reached
conclusion
new
timony.
error entitles Wife
This
transcript rather than hold
previous
trial.
*4
be
evidence would
taken
a new trial which
¶
position is that
11
initial
Wife’s
Hence,
fact a
again.
ruling
her
was in
de-
jurisdiction
change
to
lacked
Judge Hutt
Judge Howe had
parture
ruling
from the
any
ruling
way
it
because
Howe’s
mistrial.
made when he declared a
final
which no
had become a
order from
¶
quickly
accept-
filed a
notice
8
timely appeal was
Wife characterizes
taken.
ing Judge Hutt’s
to rule on the
decision
granting a new
Judge Howe’s order as one
transcript.
existing
from the
Wife
matter
correctly
an
points out that
order
trial. Wife
request
filed a
for trial de novo. She stated
pursuant
granting
appealable
a
trial
new
is
would receive a fair
that she did not feel she
Annotated
Arizona Revised Statutes
judgment
result if
were entered on
tran-
(“A.R.S.”)
12-2101(F)(1).
also is
section
She
script
presentation
rather
of evi-
than after
superior
judge
has no
correct that a
considering
After
dence in a new trial.
jurisdiction
judg
change
to review
novo, Judge
request for trial
Hutt
Wife’s
de
superior court
when
ment of another
it, stating:
denied
judgment has
“final.” Lemons v.
become
a full
THE COURT FINDS that
trial
Court,
502, 504,
141 Ariz.
687 P.2d
Superior
held,
previously
after the
of
was
close
(citation
(1984)
omitted).
1257, 1259
trial,
order
but before the final
was
issued, events occurred which caused the
argument
12 The flaw in Wife’s
Judge to recuse himself.
a
ruling
grant
is
Howe’s
available,
transcripts
There are
59(a)
pursuant to
of the
of a new trial
Rule
costly
be
efficient to
would
less
and more
Procedure,
which
Arizona Rules
Civil
retry the
on the
record.
appealable pursuant
be
sec
would
A.R.S.
IT IS ORDERED
shall
12-2101(F)(1).
ruling
a
tion
His
was declara
proceed
transcript.
on the
tion of mistrial before
decision
1997,
16,
Obviously,
September
9
is-
had
“[t]he
On
merits
been made.
entry
necessarily
right
[the
to a new trial
follows
sued minute
order
which she
mistrial],
a mistrial
is
matter had been
on declaration of a
as
stated
submitted
Gardiner,
Gray
92
equivalent
trial and that she had read the
to no trial.”
v.
record
(1962).
208, 211,
transcript
pleadings.
then
375 P.2d
564
and the
She
set Ariz.
issues,
the grant
“follow”
rulings
disputed
forth her
on all the
fact that
new
ruling
turn
itself
although
expressly
the rul-
of a mistrial does not
stated that
“new
so
to make it
ings
final because
into one for
trial”
were not to
considered
12-
section
pending
appealable pursuant
still
and would
A.R.S.
certain matters were
2101(F)(1). Moreover,
Yaeger
as we held
at a future date.
advised
be considered
She
Vance,
Ariz.App.
513 P.2d
file motions on
matters
20
(1973),
prior
mistrial
they
granting
time.
an order
wanted her
consider at
being
appeal-
an
judgment
entered
On December
heard
motions,
12-2101.
arguments
whereupon
order under AR.S. section
numerous
able
‘determines the ac
she made
modifications to her
“Such an order neither
certain
‘prevents judgment from which
signed a formal
tion’ nor
on the
issues. She
”
might
appeal-
to be
be taken’
so as
Judgment and Decree of Dissolution Mar-
12-2101(D).
able under A.R.S.
recusing
section
Id.
16 In
himself and declar
foregoing,
From
mistrial,
we conclude that
ing
stated
Wife’s
final,
Howe’s declaration of mistrial was not a
both
disintegration
letter
“demonstrates total
Therefore,
appealable
disagree
order.
we
lawyer-client relationship
places
of the
jurisdiction
Wife that
Hutt lacked
judge in
middle
of the
change Judge
ruling.
Howe’s
what rulings might
matter
made on
Stating
put
merits
the case.”
that was
Next,
argues
that even
“in
dispute” apparently
the middle of the
jurisdiction,
if Judge Hutt had
the doctrine of
way
saying
Howe’s
that there would
prevented
“law of the case” should have
“appearance”
impropriety
be an
if he did
modifying
from
ruling
Howe’s
declar
“
challenged
not recuse
No one
himself.
ing a mistrial.
‘Law of the case’ concerns
and,
from
our review of
entire
practice
refusing
reopen
questions
record,
mistrial,
including the motions for
previously
decided
the same case
given
them,
making
reasons
un
higher appellate
same court or a
court.”
circumstances,
derlying
agree
Kadish
Dep’t,
v. Arizona State Land
reading
Howe’s determination that his
Ariz.
(App.1993)
post-trial
placed
communication from Wife
(citation omitted).
It reflects the
need
position
him in a
where there could be an
litigation
“an end to
and final
decision that
*5
Therefore,
appearance
impropriety.
of
he
Estate,
rely
Monaghan’s
can
on.”
71
correctly recused himself. His decision to
227,
(1951).
Ariz.
228
time,
though, ap
declare mistrial at that
¶ 14
recog
“Law of
case”
the
is
parently hinged
only upon
not
his decision to
procedure
nized to be a rule of
rather than
himself,
upon
discovery
recuse
but also
his
of
substance, meaning that it does not
deprive
appeared
what
to him to be a “total disinte
judge
power
change
of the
his or her own
gration
lawyer-client relationship.”
rulings
nonfinal
or
the nonfinal
of
judge
sitting
another
of that same court
on
¶
determining
appro-
In
17
that she could
simply
the same case
question
because the
priately
transcript
review the
stage.
was ruled
at an
on
earlier
v.
State
disputed
Howe’s
to decide the
issues in
King,
1024,
Ariz.
180
P.2d
1035
883
dissolution, Judge
the
Hutt
made
refer-
(1994),
denied,
880,
cert.
516
S.Ct.
U.S.
116
ence to Rule 63 of the Arizona Rules of Civil
215,
(1995) (citations
163 having to start rule, rather than proceeding, our su gation of that version of al- again, only to the extent a trial but preme took the view when trial over requirement first handling before the the rule. The judge’s of a case ceases lowed familiarity findings certify of fact any judge to make with judge is able evidence, abuse of discretion The record shows from record. grant a judge refuse to other rec- transcript a successor read the trial Martin, Ariz. case, require- Daru v. 89 satisfying new trial. See thus in the ords (1961);
378-79, Chirica P.2d 64-65 of the rule. ment 363 State, Co. Ariz. hua Ranches provides that the 21 The rule also (1934). P.2d “that judge must determine successor 1, 1996, though, of December As may completed in the case proceedings changed provide as follows: Rule 63 was parties.” Ariz. R. prejudice to the without hearing If trial or has been com- very concerned Judge Hutt Civ. P. 63. judge proceed, and the is unable to menced saving parties the cost of a hew about may upon any judge proceed other But failed to consider whether trial. familiarity certifying record and transcript starting a using rather than determining proceedings in the given prejudice new trial would completed prejudice may without part mistrial due in Howe declared a hearing In a trial with- parties. to the lawyer- disintegration to the “total jury, shall at the out the successor relationship.” client request party whose recall witness writ chastised Wife for testimony is material and ing after the trial. testify her letter to again without who is available Certainly, Judge ignored have judge may Howe could undue burden. The successor entirely depriving without the communication also recall other witness. *6 any right person of because who is “[a] (effective 1,1996). R. Ariz. P. 63 Dee. Civ. in represented by litigation has no counsel ¶ 19 As indicated in the State aspect right any personally conduct following Bar Note the amended Committee litigation through Lincoln except counsel.” rule, substantially displaced the amendment 13, 15 Lincoln, Ariz. v. 155 746 P.2d present adopted the the former rule (citations omitted). (App.1987) Judge Howe entirety. Rule in its The new Federal 63 communication, though, ignore did the not by rule the circumstances which a broadens it, appropriate reading and in found it he judge may judge a successor take over for and recuse himself. both to declare a mistrial participate in the who becomes unable to reading the communication Because of pointed trial of out in the a case. As Adviso attorney-client problems him to the led cite rule, ry Committee Note to the federal under mistrial, requiring a con ground as one rule, may judge new a the new be substituted have consid clude that Hutt should point just proceedings, in not after at proper based on ered whether mistrial made, findings fact have if fair of been ground. disposition is within reach of the substituted Further, judge. Fed. R. P. 63. See Civ party’s 23 “A mere dissatisfaction rule, unlike the former the new rule does not allegations own of his own with his counsel or prior limit of the reasons withdrawal inadvertence, neglect, or counsel’s mistake may step Id. judge before successor in. granting in justify does not of a new trial Therefore, in in apply the rule would cases,” attorney civil but misconduct can predecessor judge, of stance of recusal King Supe granting a new trial. v. basis in we have this case. situation Court, Ariz. rior 138 omitted). (1983) (citations in 20 the amended rule that was 791 and footnote Under dis began problem Howe he effect before the described disintegration of law in the covered as “total and before Hutt’s substitution case, relationship.” His was for properly yer-client take over concern could something potentially damaging much more where Howe left off with the trial inadvertence, negligence, than equivalent Gray, mere or mis- to no trial.” 92 Ariz. at take of counsel. We hold that P.2d at 564. This court has reasserted not should have denied wife a new with- position recently as 1995. Hall Fam examining out whether this denial un- ily Properties, Corp., v. Ltd. Gosnell Dev. duly prejudice light Wife in of this other 1098, 1102(App.1995) Ariz. P.2d by Judge concern referred Howe. jurisdiction (holding court had to consider post-verdict granting of decision mis ¶ 24 Rule 63 also cautions that in trial). trial, nonjury judge the successor must recall testimony witness whose is material opin- 27 For the in this reasons stated testify ion, again who is available to require we hold-that two factors rever- (1) without a party requests undue burden if sal: Hutt’s failure to consider the judge (2) pro do so. The rule further possibility prejudice to Wife and judge may vides that recall a and, witness Hutt’s failure to conduct a new trial by even if requested party. to do so instead, reviewing existing transcript. In Advisory Committee Notes to the feder meantime, many of the issues contested al rule caution that would ... “[t]he court parties may or have become moot credibility risk error to determine already become moot. The house has been witness seen heard who is available to sold, dispute so can no there over whether be recalled.” In See Fed.R.Civ.P. 63. Daru keep place one of the should it in court, too, supreme our Martin indicated Apparently, other assets. there has been position that “a is in successor continuing litigation regarding spousal main- pass credibility on the of witnesses whom claim changed tenance based on a circum- has at not seen.” 89 Ariz. P.2d may stances Husband. little be left Thus areWe satisfied that amended Rule 63 regarding original spousal to decide preserves requirement. much of this claim. The trial must maintenance de- termine what issues remain to be decided only testifying 25 The two witnesses proceedings. Having new trial determined a person at the trial were Wife. circumstances, required in new trial is these credibility We cannot conclude that unnecessary for us to resolve Wife’s played these two witnesses no role in how issues, including complaints alternative decided, matters were to be disposition Hutt’s particularly proceed- about various because dissolution claims. ings so much discretion to the trial is allowed *7 Moreover, deciding
court in various issues. allegations by of fraud had been made each CONCLUSION other, party against credibility requiring ¶28 explained the reasons in For repeatedly determinations. Wife asked opinion, judgment we reverse the trial testimony the trial court to take the court and remand new trial consistent witnesses anew. Both and Husband Wife opinion. with this In the of our exercise testify. Although were available to discretion, deny requests par- of both points out both Husband and Wife were attorney’s appeal. on ties fees Judge presence in on Hutt’s various occa- Judge sions when Hutt could have observed SULT, B. CONCURRING: JAMES them, presence obviously the witnesses’ mere Presiding Judge. testimony is not the same as their under THOMPSON, Judge, dissenting. oath. 29 Wife believed that trial conduct- supreme 26 Our court stated that “[t]he go well,1 right by Judge and necessarily a Howe did not so [the new trial follows ed mistrial], scurrilous, parte, ex sabotaged declaration of a as mistrial is it2 a a she with my way Judge reassignment it all the 1. Wife told Hutt after mistrial. And through, Judge favors husband case, you Howe did.” [the do read “X think should tran- scripts]. And I think it will be evident what took Judge contained Hutt found that Wife’s letter place why up And ended in in trial. that’s it Judge personal to feel attacks and caused showing at poor it.3 had blamed Wife single-spaced communication thirteen-page Husband, lawyer, lawyer, her own court, his blasting trial on her soon-to-be with the justified “liars,” was in Judge Hutt lawyer Judge de- and Howe. as and ex-husband purposely and scuttled the concluding as “malicious that Wife lawyer scribing her own by putting it irrational,” concluding Judge the court Hutt dealt trial. could, equal back, in distribution not make best should wife community but rather hold in they assets have had Wife position would been in “find in the dissolution “blameless” not misbehaved. forth an elabora- The letter set her favor.” ¶32 the course of Rule 63 authorized admitted evidentiary assertions not tion Judge Hutt undertook. proceeding which accusations made other scandalous trial and pointed Indeed, not appeal Wife has against Husband and his counsel. by the deci- any prejudice specifically caused Hutt, determined, with Judge having testimony.4 While five sion not rehear record, that support in the Wife considerable rulings complains the substantive about Wife led the circumstances that
was to blame for settling Hutt made in the marital es- himself, to recuse Judge Howe’s decision tate, position her own Wife insists fees sanctioning Wife with considered nearly every in uncontra- supported Hutt instead of a new trial. and costs she note an evidence. Never does dicted rulings impartially on make her decided to against her went instance which transcripts. I find no abuse would an unfounded credi- made because this moderate solution discretion bility She calls Husband determination. engendered Wife’s incredible problem give any example where not liar but does misconduct. on a Judge Hutt matter based determined ¶31 majority But finds fault has belief in Husband’s truthfulness. Wife Rule proceed, under Hutt’s decision to prejudice demonstrated off,” Judge Howe left to “take over where picking up Hutt from precluded Judge have Hutt did because it concludes off,” and, quite Judge Howe left “where “disintegration” rela- consider the of Wife’s any disadvantage could have clearly, lawyer aas factor in caus- tionship with her theoretically quite properly is attrib- suffered ing support I for the the mistrial. find I affirm. uted her own misconduct. would regard. majority’s conclusion in this what Howe had written knew relationship entry the minute about Wife’s lawyer buy Hutt did not
with her acknowledges, Wife’s letter that revealed may make would be “taint- ed,” good position setting thing Hutt was in as up rift. "the whole undone and evaluate it as was read the letter Howe; event.” Hutt said: indeed, by having if he was "tainted” you when are in trial trial, there But letter, Judge have Howe should not read the being in the and then the evidence taken any further substan- declared a mistrial or made *8 over, somebody then communicates trial is ruling. never indicat- tive And Howe also in that on substantive matters with the attorney-client ed determination have trial where the other side doesn’t problem letter had indeed im- revealed in the heard, effectively you to be have chance paired of the trial itself. the basic fairness opened up. trial and trashed entire allegations there are made in And when majority “We conclude that 4. writes: cannot consideration, Judge’s where terms of the played credibility two witnesses of these longer can doesn’t feel he in how the matters in were role decided____” impartial and make a determiner of facts clearly But Wife’s burden on effectively, you what did when determination discretion. Nei- an abuse of establish you that was take all of those efforts at trial did point opening reply any- nor briefs ther the basically waste anew. them start support thing the kind of conclu- which would properly to reach to find would have sion purport deter- did to have decision an abuse of discretion trial, i.e., "disintegration” credibility replay determina- mined that there had been lawyer the matters in relationship had be made to determine with her based tions Wife’s majority dispute. anything trial. As the he observed at