NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                   IN THE
            ARIZONA COURT OF APPEALS
                               DIVISION ONE


             THE ROMAN CATHOLIC CHURCH OF THE
                  DIOCESE OF PHOENIX, an Arizona
              corporation; IMMACULATE CONCEPTION
                    ROMAN CATHOLIC PARISH
                     COTTONWOOD, an Arizona
                        corporation, Petitioners,

                                       v.

                 THE HONORABLE MICHAEL BLUFF,
                   Judge of the SUPERIOR COURT OF
                 THE STATE OF ARIZONA, in and for
               the County of YAVAPAI, Respondent Judge,

                   THERESA LEE, individually and on
                     behalf of her minor son, J.C.D.L,
            and J.C.D.L., an individual, Real Parties in Interest.
                    ______________________________

                            No. 1 CA-SA 16-0171
                              FILED 9-15-2016

Petition for Special Action from the Superior Court in Yavapai County
                        No. V1300CV2010-80142
                The Honorable Michael R. Bluff, Judge

      JURISDICTION ACCEPTED IN PART, RELIEF DENIED
                                  COUNSEL

Manning & Kass Ellrod Ramirex Trester LLP, Scottsdale
By Anthony S. Vitagliano, Keith R. Ricker
Counsel for Petitioners

Shaw Law Firm PLLC, Cottonwood
By Michael A. Shaw
Co-Counsel for Real Parties in Interest

Law Offices of Charles Anthony Shaw PLLC, Prescott
By Charles Anthony Shaw
Co-Counsel for Real Parties in Interest



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Jon W. Thompson joined.


K E S S L E R, Judge:

¶1             The Roman Catholic Church of the Diocese of Phoenix and
the Immaculate Conception Roman Catholic Parish Cottonwood (the
Church) seek relief from an order of the superior court denying their motion
to disqualify Judge Jeffrey G. Paupore from this matter. For the reasons
that follow, we accept jurisdiction of the issues directly related to the
request to disqualify Judge Paupore, but deny relief. We decline
jurisdiction to the extent the Church asks us to review and vacate or reverse
any decision of Judge Paupore.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In 2010, Theresa Lee, individually and on behalf of her son,
J.C.D.L. and J.C.D.L. (Lee) brought this action against the Church based on
a deacon allegedly sexually molesting J.C.D.L. The action was assigned to
several different judges, some of whom ruled on substantive motions. In
2014, Judge Paupore was assigned to the case. Since then, Judge Paupore
ruled on several substantive matters. Until 2016, none of the parties sought
to change the judge either as a matter of right or for cause.




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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
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¶3           In 2016, Judge Paupore held a telephonic conference call with
the attorneys for the parties. He explained that he had recalled that
approximately a quarter of a century earlier he had represented a plaintiff
suing a Catholic diocese in Michigan based on alleged sexual molestation
by a priest. Judge Paupore explained that he had not recalled the case
before and the matter had settled in part because the priest had been
convicted. Judge Paupore thought this did not disqualify him from
presiding over this matter.

¶4             The Church then filed a motion for change of judge. 1 The
Church argued that if it had known about this prior case, it would have
noticed Judge Paupore as a matter of right pursuant to Ariz. R. Civ. P.
42(f)(1) (Rule 42) and A.R.S. § 12-409 (2016) when the case was first assigned
to him. The Church contended that by not disclosing the prior case at that
time, Judge Paupore had essentially deprived it of the right to notice him as
a matter of right and it was now seeking to disqualify Judge Paupore for
cause pursuant to Rule 42(f)(2) and section 12-409. However, the Church
did not file a notice of change of judge and in the affidavit attached to the
motion, the Church’s attorney did not say that if he had known of the prior
case, he would have noticed him as a matter of right.

¶5            The Church’s motion was assigned to Judge Bluff, who held
an evidentiary hearing on the motion. At that hearing, the Church
conceded that in 2014, it had concerns about Judge Paupore because he had
worked at the Yavapai County Attorney’s Office which office had
prosecuted the deacon who was alleged to have molested J.C.D.L, but had
not sought to notice Judge Paupore at that time as a matter of right or move
to disqualify him. At the hearing, the Church also argued that the delayed
disclosure supported a question as to his impartiality and for the first time
raised Judge Paupore’s rulings on motions as a further basis to disqualify
him for cause.




1      Lee also filed a motion to change judge based in part on a ruling
Judge Paupore had recently issued which was adverse to them, contending
that they thought that Judge Paupore had erred in the ruling and might be
trying to issue rulings favoring the Church to show he could continue to sit
on the case. Another judge denied that motion and Judge Paupore then
reversed himself on the order about which Lee complained. Lee is not
seeking relief from the denial of their motion to disqualify Judge Paupore
from this matter and opposes the Church’s motion as well as the Church’s
petition for special action relief.


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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
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¶6             Judge Bluff denied the motion. He found that the affidavit of
counsel presented a prima facie case supporting a change of judge for cause
and so he had scheduled a hearing. The court found that Judge Paupore
had not intentionally failed to disclose his earlier involvement in the
Michigan case and that the delay only showed that the earlier case was
insignificant to Judge Paupore. The court also noted that the Church had
conceded it had initially thought of noticing Judge Paupore as a matter of
right when he was first appointed because the county attorney where
Paupore worked had prosecuted an alleged molester of this child. As to the
for cause challenge, the court confirmed that the standard was whether the
Church could establish that the judge’s “impartiality can reasonably be
questioned.”2 Referring to Judge Paupore reversing rulings of prior judges,
the court held that this was all part of the judicial discretion in handling the
case and cannot be used to show removal for cause. Finally, the court
concluded that based on an objective view of the record, the involvement
in a 25-year-old case was insufficient grounds to call into question the trial
court’s rulings and that the disclosure does not support a finding of bias or
prejudice or prove Judge Paupore cannot be impartial.

                               DISCUSSION

¶7             A decision not to grant a party’s exercise of his right to notice
a judge without cause can only be reviewed by special action. Taliaferro v.
Taliaferro, 186 Ariz. 221, 223-24 (1996). However, denials of a motion to
disqualify a judge for cause can be reviewed on appeal after the judgment
because, in part, if there is bias which occurs in the trial, the record on
appeal might show that bias and any prejudice so as to be reviewable on
appeal. Id. See also Baron v. Dillard, 1 CA-CV 14-0171, 2016 WL 54832, at *
4, ¶ 25 n. 6 (Ariz. App. Jan. 5, 2016) (mem. decision) (noting that special
action review is limited to review of peremptory challenges to judges and
that orders denying motions to disqualify based on cause are reviewable on
appeal) (citing to Stagecoach Trails MHC, LLC v. City of Benson, 232 Ariz. 562,




2       While the superior court also referred to the standard under A.R.S. §
12-409(B)(5) as requiring bias, prejudice or interest so that a party cannot
obtain a fair and impartial trial, the court originally referred to the correct
standard of whether the judge‘s impartiality can reasonably be questioned.
Since we assume the superior court knows and correctly applies the law, In
re William L., 211 Ariz. 236, 238, ¶ 7 (App. 2005), we interpret the statement
to bias, prejudice or interest as merely being shorthand for the correct
standard for judicial disqualification.


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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
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568, ¶ 21 (App. 2013) (in which the court reviewed judicial bias ruling on
direct appeal).

¶8             Here, the Church attempts to tie its motion to disqualify Judge
Paupore for cause to its original right to peremptorily notice the judge.
Given this argument, we think it better to address the issue of
disqualification at this stage of the proceedings. Accordingly, we accept
jurisdiction of the denial of the motion to disqualify to the extent it is based
on Judge Paupore’s involvement in a molestation case 25 years ago and any
rulings he issued in this case.

¶9             However, we decline jurisdiction to the extent the Church is
asking us to reverse or vacate Judge Paupore’s rulings as improper
horizontal appeals or as improperly decided while a motion to disqualify
was pending. Absent extraordinary circumstances, those kinds of rulings
are subject to review on direct appeal after final judgment if the decision
denying the motion to disqualify is reversed. See In re Marriage of Kay S.,
213 Ariz. 373, 380-82, ¶¶ 35-42 (App. 2006) (in reversing denial of motion to
disqualify judge, court of appeals would also reverse rulings by judge
subject to disqualification); Donlann v. Macgurn, 203 Ariz. 380, 385, ¶¶ 28-
31 (App. 2002) (reviewing “horizontal appeals” on direct appeal from
judgment). The Church’s reliance on State ex rel Montgomery v. Kiley, 1 CA-
SA 15-0273, 2015 WL 7074788 at * 2, ¶ 8 (Ariz. App. Nov. 13, 2015) (mem.
decision) is misplaced. In Montgomery, we granted special action relief from
a horizontal appeal decision in which the trial court reversed holdings and
on the eve of trial precluded the State from using prior evidence from a
witness/victim who could not be subpoenaed for trial. In accepting
jurisdiction, we noted that the State could not appeal the interlocutory order
in any way so there was no plain, speedy and adequate remedy on appeal.
That is not the case here.

¶10          The Church has a heavy burden to show cause to recuse the
judge. As we explained in Stagecoach, id. at ¶ 21,

              A party challenging a trial judge’s impartiality
              must overcome the presumption that trial
              judges are free of bias and prejudice. Judicial
              rulings alone do not support a finding of bias or
              partiality without a showing of an extrajudicial
              source of bias or a deep-seated favoritism. And
              [a] change of judge for cause is not warranted if
              based merely on speculation, suspicion,
              apprehension, or imagination. We review for an


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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
                    Decision of the Court

              abuse of discretion the denial of a motion for
              change of judge based on a claim of judicial bias.

(Internal citations and quotations omitted). As we also explained in
Stagecoach, id. at ¶ 22,

              The City asserts that its claim of bias is
              supported by both an extrajudicial source and
              the cumulative effect of the trial judge’s rulings
              in this case. The City attempts to demonstrate
              an extrajudicial source of bias by referring to the
              trial judge’s purported “judicial philosophy”
              that when a zoning ordinance restricts a
              property owner’s use of property, it is a
              constitutional “taking.” But, as the presiding
              judge found, a judge’s legal conclusions, if
              erroneous, can be corrected in an appellate
              proceeding; they do not, standing alone,
              indicate bias.

¶11            The Church’s first argument is that Judge Paupore’s failure to
disclose the prior case prevented the Church from noticing him as a matter
of right when he first was assigned to this case and that if the Church had
known of that involvement in a church molestation case it would have
exercised its notice as a matter of right.

¶12            We deny relief on this argument for several reasons. First, the
argument is not supported by the Church’s counsel’s affidavit. In the
affidavit, the attorney says the judge’s “failure to timely inform the parties
of this prior case deprived my clients of the ability to file a notice of change
of judge under Rule 42(f)(1) . . . and forced them to seek this disqualification
under [A.R.S.] 12-409”. Nowhere does he say that he would have noticed
Judge Paupore if he had known about the prior representation. In addition,
the fact that Judge Paupore had been at the county attorney’s office when it
was prosecuting the deacon would have been a stronger reason to notice
the judge as a matter of right, but the Church did not do so and apparently
only considered seeking to remove him for cause, an issue on which it did
not think it could prevail. We find no abuse of discretion in denying the
motion to recuse on this theory.

¶13           Second, we reject the Church’s argument that because the
judge did not disclose the prior case for 14 months, that deprived it of the
right to notice him without cause and the Church could now file such a



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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
                    Decision of the Court

notice. The Church never asked the trial court to treat its motion to
disqualify as a notice under Rule 42(f)(1). The closest it got was to say that
the failure to disclose prevented it from using the Rule 42(f)(1) rights.

¶14             Third, the Church conceded it had reasons to suspect the
judge when he was first appointed because he was at the County Attorney’s
Office when it was prosecuting the deacon, but did not think that was
enough to move to disqualify him. But it never explained why, based on
that fact, it could have, but failed to, notice him as a matter of right. See
Rule 42(f)(1)(D) (a party waives the right to change a judge as a matter of
right when after notice to the parties, the judge rules on any contested issue,
grants or denies a motion to dispose of one or more claims or defenses, or
holds a scheduled conference or contested hearing).

¶15            While the Church cites several cases in which the courts have
held that the right to notice a judge is not “waived” if the party did not have
knowledge of an assertedly significant fact or who the judge was,3 most of
those cases also point out that the Rule 42(f)(1) and its predecessors’ notice
provisions have been repeatedly limited to prevent parties from testing the
waters on rulings and then trying to notice the judge. If we were to hold
that a party who knew of a possible problem with a judge and did not notice
him but then waited after various rulings and discovered an insignificant
fact that was not disclosed to restart the notice period, it would lead to great
abuse of the notice provisions.

¶16           In essence, the Church never asked the court to treat its
motion as a notice and it waived any notice of right by not noticing the
judge when it had facts which raised concern about the judge. Thus, by
waiting and then trying to notice him on a factor not sufficient for
disqualification would be an abuse of the statute and rule. Compare Wages
v. Smith Barney Harris Upham & Co., 188 Ariz. 525, 531-32 (App. 1997) (party
could challenge arbitrator’s bias after entry of award when prior to
arbitration arbitrator did not disclose his litigation against party’s
predecessor in interest on a similar issue).




3      Williams v. Superior Court, 190 Ariz. 80, 82-83 (App. 1997) (waiver
provisions of Rule 42 do not apply when the party seeking to notice the
judge did not have knowledge the court was going to issue decision);
Medders v. Conlogue, 208 Ariz. 75, 78, ¶ 10 (App. 2004) (waiver provisions
could not apply when party had no notice of who judge was so as to be able
to notice the judge on a timely basis).


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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
                    Decision of the Court

¶17           The Church’s second argument is that Judge Paupore’s
involvement in representing an alleged victim of sexual crimes in a
different parish and in a different state approximately a quarter of a century
earlier was sufficient to disqualify the judge and that Judge Bluff used the
wrong standard in denying the Church’s motion.

¶18            We disagree with the Church. As explained supra, ¶ 6 and
n.2, Judge Bluff began his ruling citing to the correct standard for
disqualification. We assume he knew the correct standard and any
language hinting about a different standard we take as merely shorthand
for the correct standard. Additionally, the Church does not cite to any case
in which a court found that a judge’s involvement in one similar case 25
years in the past against a different defendant in a different state would call
for his disqualification because the judge’s impartiality might reasonably
be questioned. Under that standard, any judge with any experience in the
area which is the subject of the current case could be disqualified simply
based on that experience. Based on the facts of this case, we refuse to allow
Arizona disqualification standards to be abused by de minimis experience.

¶19          Finally, the Church contends that given the prima facie
evidence of a possible basis for recusal for cause (based on extrajudicial
experience in another case), the superior court should have considered
Judge Paupore’s rulings in this matter which the Church contends violate
the rule against horizontal appeals or that they were issued while the
motion to disqualify was pending.

¶20            The superior court did not abuse its discretion in not
considering those rulings in denying the motion to disqualify. As it noted,
the fact a new judge disagrees with a prior judge’s rulings does not prevent
the trial judge from revisiting those rulings and reversing. The court
explained that if Judge Paupore was wrong, that is different than saying he
could not be fair to the parties. Indeed, we note that not all horizontal
appeals are inappropriate. Not only may they be appropriate when
supported by new evidence, but a new trial judge assigned to a case is
authorized to reverse another judge’s prior ruling in the case if the judge
concludes the earlier ruling was erroneous. See Kiley, supra, ¶ 9 (noting that
while we frown on horizontal appeals, a court can properly reverse another
judge when the first decision renders it manifestly erroneous or unjust
(citing Powell-Cerkoney v. TCR-Mont. Ranch Jt. Venture, II, 176 Ariz. 275, 279
(App. 1993)).

¶21          Evidence sufficient to meet the standard for recusal generally
cannot be based on judicial rulings, but must be extra-judicial. Stagecoach,


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          ROMAN CATHOLIC CHURCH v. HON BLUFF/LEE
                    Decision of the Court

id. at ¶¶ 21-22. As we noted in Stagecoach, supra, at ¶ 21, “[j]udicial rulings
alone do not support a finding of bias or partiality without a showing of an
extrajudicial source of bias or a deep-seated favoritism.” Conversely, if we
do not have an extrajudicial source of bias or a deep-seated favoritism, we
cannot look to the pleadings alone to create one. While the Church argues
that it is the cumulative effect of both the alleged appearance of partiality
based on prior involvement in a case 25 years ago and the adverse rulings
that warrants disqualification, we impliedly rejected that argument in
Stagecoach, id. The Church cites to no cases that say if there is a prima facie
case for possible recusal for cause simply because the basis comes from
extrajudicial sources, no matter how insignificant, the court can look at
rulings in the current case to find a basis to disqualify.

                               CONCLUSION

¶22           For the reasons stated above, we accept jurisdiction on the
disqualification issues, but deny relief and decline jurisdiction on the
remaining issues.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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