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State v. Greenlee County Justice Court5/26/1988
The state appeals from the superior court's order denying its petition for special action challenging the justice court's denial of its request for a peremptory change of judge pursuant to Rule 10.2, Ariz.R.Crim.P., 17 A.R.S. The superior court ruled that the affidavit filed by the deputy county attorney setting forth his reasons for the transfer of the cases violated the superior court's order and that "the matters set forth in that affidavit should have been dealt with in a different forum." The state argues that the superior court committed reversible error as follows:
1. The two prosecutors in the Greenlee County Attorney's Office properly utilized Criminal Rule 10.2 in this case.
2. A. Steven Lehman, Justice of the Peace for Greenlee County Justice Court, Precinct 2, failed to follow the procedure established by Rule 10.6, Ariz.R.Crim.P., 17 A.R.S., by ruling on the 10.2 request filed by the deputy county attorney.
3. The superior court erred in its order requiring the prosecutors to submit affidavits supporting a good faith basis for their Rule 10.2 challenges.
We agree and reverse.
FAILURE TO FILE ANSWERING BRIEF
We note initially that both the respondents/appellees in this case, Greenlee County Justice Court, Precinct 2, and A. Steven Lehman, Justice of the Peace (hereinafter "Judge Lehman" and the real parties in interest have failed to file an answering brief. When an appellant raises debatable issues, the failure to file an answering brief generally constitutes a confession of reversible error in civil cases. Hecla Mining Co. v. Industrial Commission, 119 Ariz. 313, 580 P.2d 774 (App.1978); Geiler v. Arizona Bank, 24 Ariz. App. 266, 537 P.2d 994 (1975); Bulova Watch Co. v. Super City Department Stores of Arizona, Inc., 4 Ariz. App. 553, 422 P.2d 184 (1967). However, that may be waived in the discretion of the reviewing court. Evertsen v. Industrial Commission, 117 Ariz. 378, 573 P.2d 69 (App.), approved and adopted, 117 Ariz. 342, 572 P.2d 804 (1977); Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (App.1980). Because we find this is an issue of statewide importance and one which affects counties with smaller populations, we will decide this case on its merits.
FACTS
At the time the criminal matters at issue in this appeal were pending, the Greenlee County Attorney's Office employed only two prosecutors. Both prosecutors separately filed timely requests for a change of judge in their respective cases pursuant to Rule 10.2, Ariz.R.Crim.P., 17 A.R.S. The respondent denied these requests and stated
he would set the four criminal matters for trial, citing State v. City Court of City of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986). After Judge Lehman affirmed his denial of the request and set the matters for trial, the state filed a petition for special action in Greenlee County Superior Court claiming that Judge Lehman had "failed to exercise discretion which had a duty to exercise; failed to perform a duty required by law as to which had no discretion; threatening to proceed without or in excess of his jurisdiction or legal authority; and made a determination that was arbitrary, capricious and in abuse of discretion." Following an evidentiary hearing, the superior court filed a minute entry including findings of fact and conclusions of law and o
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