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State v. Mercurio3/10/1987
This consolidated appeal challenges the validity of chapter 8, § 5 of the Phoenix City Charter, which provides for the appointment of municipal court judges protempore. Each of the appellants was tried in Phoenix City Court before a judge protempore and was convicted of driving while intoxicated. We affirm.
FACTS
On September 20, 1985, appellant Mercurio's case was called for jury trial in the Phoenix Municipal Court, Judge pro tempore Lindsey B. Ellis presiding. Mercurio filed a motion to dismiss the complaint, arguing that the judge had been appointed unlawfully and therefore lacked jurisdiction. The motion was denied and the case proceeded to trial. Mercurio was convicted of driving while intoxicated and sentence was imposed. On appeal to the superior court, Mercurio's conviction and sentence were affirmed. She timely appealed to this court.
On November 20, 1985, appellant Sapien's case was called for jury trial in the Phoenix Municipal Court before Judge protempore Louraine Crawford. Sapien's counsel moved for reassignment of the
case to a full-time judge serving a fixed term or, alternatively, for dismissal because the judge pro tempore lacked jurisdiction. The motion was denied. Sapien waived his right to a jury trial, and the case proceeded to trial to the court. He was convicted of driving while intoxicated and driving with a blood alcohol content of greater than .10 percent. Sapien appealed to the superior court, which affirmed the judgments and sentences. He timely filed a notice of appeal to this court.
On November 26, 1985, appellant Skicewicz' case was called for jury trial in the Phoenix Municipal Court before Judge pro tempore Walter Switzer. Skicewicz' counsel moved to have the case reassigned to a full-time judge or, alternatively, to dismiss the complaint for lack of jurisdiction. Full-time Phoenix Municipal Court Judge Elizabeth R. Finn heard this motion and denied it. Skicewicz thereafter waived her right to a jury trial and submitted the case to the judge pro tempore based upon certain records. Skicewicz was convicted of driving while intoxicated and driving with a blood alcohol content of .10 percent or greater. She appealed her convictions and sentences to the superior court, which affirmed. Skicewicz timely filed a notice of appeal to this court.
In each case, the basis for the motion to dismiss for lack of jurisdiction was that the city of Phoenix has no lawful authority to appoint judges pro tempore to hear cases in the Phoenix Municipal Court. Therefore, appellants argue, the judges pro tempore who presided over their trials lacked jurisdiction, and their convictions and sentences are void or voidable. All of these appeals concern this single issue and were consolidated by order of this court. The Phoenix Municipal Court was permitted to file an amicus curiae brief.
Our jurisdiction to consider this appeal is limited by A.R.S. § 22-375 and article VI, § 5 of the Arizona Constitution, which restricts our review of superior court judgments in actions appealed from a justice of the peace or police court to "the validity of a tax, impost, assessment, toll, statute or municipal ordinance." None of the interested parties has questioned our jurisdiction to consider the validity of a city charter provision. We have broadly defined the term "municipal ordinance," as used in art. VI, § 5, to mean any enactment of a political body in the state exercising governmental functions. State v. Kelsall, 22 Ariz. App. 97, 523 P.2d 1334 (1974). The validity of a city charter provis
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