“Once Recused, Still Disqualified”: Arizona Supreme Court Requires Disclosure and Opportunity to Object Before a Judge Re‑Enters a Case After Recusal

Introduction

In Contreras v. Bourke, the Arizona Supreme Court unanimously clarified and strengthened the procedural and ethical framework governing judicial recusal and re-entry. The Court held that once a judge has recused in a case, the judge remains disqualified from presiding further in that same case unless the judge first discloses on the record why recusal is no longer required and affords the parties an opportunity to object before resuming any role. The Court also provided important guidance for presiding judges who have appointed a party as a justice of the peace pro tempore, explaining that this professional relationship is more than an attenuated tie and may create an appearance issue, but it is not a per se ground for disqualification; instead, it requires a fact-intensive assessment under Arizona’s objective observer standard.

The decision arises from a long-running family law matter in which the presiding judge of Cochise County, who had previously recused (and later appointed one of the litigants as a justice of the peace pro tempore), re-entered to decide a vexatious litigant motion under A.R.S. § 12-3201 without explaining the change in circumstances. The Court vacated the court of appeals’ affirmance, reversed the vexatious litigant order, and remanded for a different judge to rule.

Summary of the Opinion

Core holding: Once a judge recuses in a case, that judge remains disqualified from further participation unless the judge (1) articulates on the record why recusal is no longer required and (2) gives the parties an opportunity to be heard and to object before re-entering (CJCR 2.11 and its comments).
Professional relationship guidance: A presiding judge’s appointment and supervisory relationship with a justice of the peace pro tempore is more than a “limited professional relationship” and may create an appearance issue depending on facts (timing, frequency of contact, degree of supervisory interaction). However, it is not categorically disqualifying in every case.
Waiver: Although parties can waive many disqualification claims by failing to timely move under A.R.S. § 12-409 and the applicable rules, a judge’s independent duty to disqualify under CJCR 2.11 applies even absent a party’s motion. The Court applied waiver to the “professional relationship” argument (because it was not timely raised), but not to the “prior recusal” issue, which flows from the judge’s own duty.
Remedy and effect: Orders entered by a disqualified judge are voidable, not void. Here the Court reversed the vexatious litigant designation and remanded for a new judicial officer to decide the motion, especially given the judge’s retirement.

Background

After Roger H. Contreras and Nancy Bourke’s 2009 dissolution action (decree in 2011), extensive post-decree litigation followed. In 2020, all Cochise County judges—including Judge Timothy Dickerson—recused from the matter, and the case was reassigned to Pima County. In 2021, this Court appointed Judge Dickerson as Cochise County’s presiding judge. In 2022–2023, he appointed and reappointed Contreras as a justice of the peace pro tempore.

Shortly after the first appointment, Contreras moved to have Bourke declared a vexatious litigant under A.R.S. § 12-3201, a statute that generally assigns such determinations to the presiding judge of the superior court. Despite his prior recusal from the underlying case, the presiding judge took up the vexatious motion without explaining why recusal no longer applied and without offering the parties an opportunity to object. He designated Bourke a vexatious litigant. A divided Court of Appeals affirmed on waiver grounds. The Supreme Court granted review and vacated.

Issues Presented

Whether a judge who previously recused may re-enter the same case without explaining the change in circumstances and allowing the parties to object.
Whether a presiding judge’s appointment of a litigant as a justice of the peace pro tempore creates an independent basis for disqualification.
What remedy applies when a disqualified judge rules: void or voidable?

Analysis

1) Precedents Cited and Their Influence

CJCR Rule 2.11(A) and Comments 1–2: The linchpin of the Court’s analysis. Rule 2.11(A) requires disqualification whenever a judge’s impartiality “might reasonably be questioned,” and Comment 2 emphasizes the duty is independent of a party’s motion. This undergirds the Court’s conclusion that recusal persists until the judge affirmatively addresses the reasons for disqualification on the record and gives parties a chance to object.
State v. Smith, 203 Ariz. 75 (2002), and Judicial Ethics Advisory Committee Opinions 96-14 and 98-02: These authorities supply the “objective, disinterested, fully informed observer” test for assessing whether impartiality might reasonably be questioned—a test the Court applies to both the prior-recusal context and the professional-relationship guidance.
Scheehle v. Justices of the Supreme Court, 211 Ariz. 282 (2005): Demonstrates that prior recusal is not an absolute, permanent bar to later participation where circumstances change and, in unusual cases, the rule of necessity may justify re-entry. The Court leverages Scheehle to clarify that re-entry is possible but only following on-the-record disclosure and opportunity for objection under Rule 2.11(C)—not silently and not as a matter of course.
State ex rel. Corbin v. Superior Court, 155 Ariz. 560 (1987): Emphasizes public confidence—justice must not only be impartial but must appear so. This animates the Court’s insistence on transparency when a previously recused judge seeks to re-engage.
Kay S. v. Mark S., 213 Ariz. 373 (App. 2006): A fact-intensive recusal case involving an attorney who served as a judge pro tempore for the same trial judge. The Court uses Kay S. to illustrate how “appearance” can warrant reassignment even without proof of actual bias—relevant to its guidance on presiding-judge relationships with justices of the peace pro tempore.
Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562 (App. 2013); Simon v. Maricopa Medical Center, 225 Ariz. 55 (App. 2010); State v. Medina, 193 Ariz. 504 (1999): These cases reaffirm the presumption that judges are impartial and that the challenger bears the burden to show facts establishing bias by a preponderance of the evidence—principles the Court invokes when addressing the “professional relationship” issue and explaining why it is not per se disqualifying.
A.R.S. § 12-409; Ariz. R. Fam. Law P. 6.1; Ariz. R. Civ. P. 42.2; John Munic Enterprises, Inc. v. Laos, 235 Ariz. 12 (App. 2014); Marsin v. Udall, 78 Ariz. 309 (1955); Trantor v. Fredrikson, 179 Ariz. 299 (1994): These authorities address timeliness and waiver of party-initiated disqualification challenges. The Court applies these to conclude Bourke waived the “professional relationship” argument by not timely raising it in the superior court—even as it holds that waiver doctrines cannot excuse the judge’s own independent obligation under CJCR 2.11 in the prior-recusal scenario.
Conkling v. Crosby, 29 Ariz. 60 (1925); State v. Cramer, 192 Ariz. 150 (App. 1998); Cockerham v. Zikratch, 127 Ariz. 230 (1980); Legacy Foundation Action Fund v. Citizens Clean Elections Commission, 243 Ariz. 404 (2018); American Asphalt & Grading Co. v. CMX, L.L.C., 227 Ariz. 117 (2011): These decisions frame the void-versus-voidable distinction and support the remedy chosen—reversal and remand for a new ruling rather than treating the order as void ab initio.

2) Legal Reasoning

The Court proceeds from the plain language of CJCR Rule 2.11(A), construing the Code of Judicial Conduct as it would a statute. It stresses two features:

The duty of disqualification exists whenever impartiality might reasonably be questioned, regardless of whether a motion is filed (Comment 2).
Where disqualification is not grounded in non-waivable personal bias or prejudice under Rule 2.11(A)(1), Rule 2.11(C) contemplates that a judge may disclose the basis for disqualification and ask the parties to consider waiver outside the judge’s presence, with any agreement reflected on the record.

Applying those principles, the Court recognizes that a prior voluntary recusal is, by its nature, an acknowledgment that the judge’s impartiality might reasonably be questioned at that time. Such disqualification does not necessarily last forever; circumstances may change. But before a judge may re-enter, the judge must:

Place on the record the reasons why recusal is no longer warranted (i.e., what has changed or why the initial basis no longer applies); and
Allow the parties an opportunity to be heard and to object, with any waiver documented in accordance with Rule 2.11(C) if the basis is waivable.

The Court underscores that this procedural transparency is necessary to protect both the reality and the appearance of impartial justice. A silent re-entry leaves doubts unresolved and is incompatible with the ethical obligations in Rule 2.11 and the public confidence imperative articulated in Corbin.

On the secondary issue, the Court provides prospective guidance: the professional relationship between a presiding judge and a justice of the peace pro tempore whom the presiding judge has appointed and supervises is more substantial than a mere “limited professional relationship.” This relationship can, depending on facts, reasonably raise questions about impartiality, especially where recent appointments or frequent professional contact exist. But it is not automatically disqualifying. Instead, courts should evaluate factors such as:

The presiding judge’s involvement in the selection process and the appointee’s qualifications assessment (including moral character determinations under A.R.S. § 22-122);
The timing between appointment and the litigation at issue;
The frequency and closeness of professional contacts, including supervisory interactions; and
Any other case-specific facts bearing on the objective-observer test.

Finally, the Court explains that while a judge’s independent duty under CJCR 2.11 controls the prior-recusal re-entry issue without regard to party waiver, parties still must timely raise other disqualification grounds. Because Bourke did not timely raise the “professional relationship” challenge in the trial court despite notice, that specific claim was waived.

3) Impact and Implications

The decision has broad procedural and ethical ramifications for Arizona courts:

Statewide procedural rule for re-entry: Judges who previously recused are presumptively disqualified until they make an on-the-record disclosure explaining why the prior disqualification no longer applies and invite party input. This applies across case types and judicial roles (including presiding judges exercising special statutory functions such as vexatious litigant determinations under § 12-3201).
Increased transparency and appellate clarity: By requiring disclosure and a documented opportunity to object (and documenting waivers per Rule 2.11(C)), trial courts will build a record that facilitates meaningful appellate review and reduces uncertainty about the propriety of a judge’s re-entry.
Guidance for presiding judges: Appointments of temporary judicial officers can create appearance issues in later litigation. Presiding judges should assess whether to assign contested matters to a neutral colleague when the appointee appears as a litigant or counsel, especially where timing and contact factors weigh in favor of an appearance concern.
Litigant practice: Parties must timely raise any disqualification grounds they discover (e.g., professional relationships, newly learned facts) or risk waiver. Conversely, parties benefit from the Court’s insistence that judges themselves must proactively disclose and solicit input when re-entering after recusal.
Vexatious litigant proceedings: Because such orders significantly limit litigant access to filing, presiding judges must be especially vigilant about potential conflicts and appearances of bias. When prior recusal exists, compliance with the new disclosure-and-objection protocol is mandatory before taking up § 12-3201 motions.
Remedial posture: Orders entered after improper re-entry are voidable. Litigants should seek timely relief. Appellate courts retain flexibility to reverse and remand for a fresh ruling by a different judge, as here.

Complex Concepts Simplified

Disqualification vs. Recusal: “Disqualification” means the judge is ethically or legally barred from hearing the case. “Recusal” is the judge’s act of stepping aside when disqualification applies. This opinion treats prior recusal as recognition that disqualification existed at that time.
Objective Observer Test: The question is not the judge’s subjective belief, but whether an objective, fully informed, disinterested observer would reasonably question the judge’s impartiality. This protects both fairness and its appearance.
Waiver of Disqualification: Under CJCR 2.11(C), some disqualification grounds can be waived by the parties after the judge discloses the basis on the record and the parties agree—without the judge’s participation—to proceed. Bias or prejudice under 2.11(A)(1) is not waivable.
Independent Judicial Duty: A judge must disqualify even if no one asks. Parties’ failure to move for disqualification does not absolve the judge of the duty to step aside (or to follow the disclosure-and-waiver process for re-entry).
Void vs. Voidable: A “void” order is a legal nullity entered without jurisdiction. A “voidable” order is erroneous but issued by a court with jurisdiction; it stands unless timely set aside. The Court classifies orders entered after improper re-entry as voidable, not void.
Presiding Judge’s Role and JP Pro Tem Appointments: Presiding judges appoint, evaluate, and supervise justices of the peace pro tempore, including assessing moral character (A.R.S. § 22-122). That supervisory nexus is closer than a passing workplace acquaintance and can raise reasonable questions of appearance depending on timing and contact.
Vexatious Litigant Designations (A.R.S. § 12-3201): Typically made by the presiding judge, these orders restrict a litigant’s ability to file without prior leave of court, making neutrality and the appearance of neutrality critical.

Practical Guidance and Checklists

For Judges Considering Re-Entry After Prior Recusal

Identify the original basis for recusal and determine whether circumstances have materially changed.
Place on the record: (a) the original basis; (b) the change in circumstances; and (c) why recusal is no longer warranted.
Provide notice and invite party input; set a short schedule for objections and, if necessary, an evidentiary hearing.
For waivable grounds (not bias/personal prejudice), follow CJCR 2.11(C): secure a written waiver agreed upon by the parties outside your presence, and incorporate it into the record.
If an objection is raised, have another judicial officer decide the disqualification question.
If disqualification persists, do not act; arrange reassignment.

For Presiding Judges When an Appointee Appears as a Litigant or Lawyer

Evaluate timing between appointment/reappointment and the litigation.
Assess frequency and closeness of supervisory contact with the appointee.
Consider whether your prior public endorsements (e.g., moral character determinations) could, to an objective observer, raise appearance concerns.
When in doubt, disclose and invite input; strongly consider assignment to an uninvolved judge.

For Litigants and Counsel

Move promptly under A.R.S. § 12-409 and the applicable procedural rules upon discovering any potential disqualification facts; failure to do so risks waiver.
If a previously recused judge re-enters without explanation, request on-the-record disclosure of the change in circumstances and an opportunity to be heard (citing CJCR 2.11 and this case).
Build a factual record: document timing, relationships, and contacts relevant to the objective-observer test.

Case-Specific Application

Prior Recusal/Re-Entry: The presiding judge re-entered to decide a vexatious litigant motion without disclosing why the original recusal no longer applied and without affording the parties a chance to object. That violated CJCR 2.11’s independent duty and the disclosure-and-objection protocol now mandated by the Court. The vexatious order is therefore voidable and reversed.
Professional Relationship: Although the judge’s appointment and supervision of Contreras as a justice of the peace pro tempore created more than an attenuated professional tie and could, depending on facts, raise appearance concerns, Bourke did not timely raise this distinct ground in the trial court. That argument was waived on appeal.
Remedy: Because the judge retired and no further factual inquiry would be productive, the Court remanded for a different judge to decide the vexatious litigant motion anew.

Key Takeaways

New procedural rule: A judge who previously recused remains disqualified until the judge discloses why recusal is no longer required and gives parties an opportunity to object; only then may the judge re-enter.
Ethical north star: The objective-observer test and the public-confidence principle require transparency and process whenever a judge reverses course on recusal.
Appointee relationships: A presiding judge’s supervisory/appointive connection with a justice of the peace pro tempore is not per se disqualifying but is materially significant to appearance-of-impartiality analyses.
Party obligations persist: Parties must timely press known disqualification grounds or risk waiver—except that a judge’s independent duty under CJCR 2.11 cannot be excused by party inaction.
Orders after improper re-entry are voidable: Timely challenge can yield reversal and reassignment; they are not jurisdictionally void.

Conclusion

Contreras v. Bourke sets a clear, statewide rule for judicial re-entry after recusal: once recused, a judge is disqualified unless and until the judge publicly explains the change in circumstances and invites party objections, with any waiver documented under CJCR 2.11(C). In so holding, the Court harmonizes ethical obligations, administrative realities, and litigant rights, bolstering the appearance and reality of impartial adjudication. Its guidance on presiding-judge appointments of justices of the peace pro tempore further equips courts to navigate the “appearance” dimensions of modern court administration without converting professional relationships into automatic disqualifiers.

Practically, the decision will promote transparent records, reduce uncertainty, and protect public confidence in the judiciary. Substantively, it ensures that significant restrictions such as vexatious litigant designations are imposed only by a judicial officer whose impartiality is not reasonably in doubt—and whose continued participation has been openly vetted on the record.