Rule 42.1(e) allows a change of judge “if the appellate decision requires a new trial.” What if the decision requires re-holding an evidentiary hearing?

After what sounds like a somewhat idiosyncratic evidentiary hearing the family court ordered a change in a parenting plan. Father took special action. The Court of Appeals accepted it and granted relief, ruling that the order “cannot stand” because Father was denied due process. It directed the trial court to hold a proper hearing, allowing Father to present certain evidence. Father then moved in the trial court for change of judge under Rule 42.1 (e) (remand for new trial). The judge denied it, opining that the Court of Appeals didn’t “reverse” her and didn’t order a new trial, and also that there was no evidence that she had any “ill-feelings” toward Father. Father again took special action. The trial judge (whose evident unwillingness to reconsider her ruling regardless of any new evidence did her cause no favors) apparently then suggested that she could not hold a hearing until the Court of Appeals revested jurisdiction.

The Court of Appeals accepts the special action.

Before addressing Rule 42 it discusses the jurisdictional question. It points out that a special action does not divest the trial court of jurisdiction. This is pure dicta — the action did not raise the question and everybody here had jurisdiction — but it seems that even trial judges need to be reminded. (So in theory the trial court could have held the new hearing since Father had not obtained from the Court of Appeals an order staying it. But as a practical matter the judge was in no hurry to do anything.)

Then the court grants relief. “Trial” includes a contested evidentiary hearing. Directing the lower court to “revisit the same . . . issue based on the same factors and new evidence” is the same as requiring a new trial. The rule requires no magic words such as “reversed” or “new trial.”

Nor does it require proof of judicial animus. “Actual bias is not required.” The potential for subconscious bias is enough.

The rule does require a “remand.” Although jurisdiction is not remanded in a special action, since the trial court does not lose it, “an order granting relief and directing additional evidentiary proceedings to redo an earlier proceeding is the functional equivalent of a remand.”

(Opinion: Coffee v. Hon. Ryan-Touhill)