The City Attorney’s Blanket “Affidavit of Prejudice” Policy Against Judge Vaddadi

On March 1, the Seattle City Attorney’s Office announced that it would be filing an affidavit of prejudice against Judge Pooja Vaddadi “in all criminal cases going forward.” Under Washington Criminal Rules for Courts of Limited Jurisdiction, an affidavit of prejudice means that Judge Vaddadi is immediately disqualified from every case in which the City Attorney files one. And according to the City Attorney, that’s going to be every case.

Apparently, there’s an internal memorandum fully outlining the City Attorney’s policy. I have not read the memo! (I suspect it is not publicly available, at least not yet.) But the City Attorney has described its reasoning in a press release. The Stranger and Publicola have both been covering the City Attorney’s decision. (The Stranger piece has some very interesting quotes from current and former judges responding to the policy.)

When I first heard the news, my immediate thought was: “Wait, can they do that?!” I am familiar with the affidavit procedure from my time as a Washington practitioner. It’s essentially a kind of “peremptory challenge” that either party can use on a judge, so long as you file it promptly. CrRLJ 8.9 provides the affidavit procedure for criminal cases in Municipal Court, while RCW 4.12.050 provides essentially the same procedure in Superior Court. (Note: The language in the RCW is a bit softer, dropping the “affidavit of prejudice” language in favor of the less inflammatory “notice of disqualification.”)

Though I was familiar with the affidavit procedure, I’d never heard of a prosecutor’s office adopting—publicly—a blanket policy of disqualifying a judge in all matters. That pinged my “I don’t know if you’re allowed to do that” radar.

So can a prosecutor’s office adopt a blanket disqualification policy? The short answer: Maybe.

The longer answer: I have no idea but I’ll tell you what I found after doing a bit of research.

Who Is Citing Slavery?

[Update: I expanded on this post in an article for the North Carolina Law Review Forum. If you want to read more, you can find it here: David J.S. Ziff, Citation, Slavery, and the Law as Choice: Thoughts on Bluebook Rule 10.7.1(d), 101 N.C. L. Rev. F. 72 (2023).]

The most-recent version of The Bluebook includes a new rule, Rule 10.7.1(d). Generally, Rule 10.7.1 deals with when and how to cite an opinion’s prior and subsequent history, like if an opinion affirms a previous opinion or is later reversed by a subsequent opinion. Stuff like that.

Rule 10.7.1(d) addresses something different. It provides a rule for indicating when an opinion involves slavery, either with an enslaved person as a party or as the subject of a legal dispute. Here is the rule in full:

(d) Slave Cases. For cases involving an enslaved person as a party, use the parenthetical “(enslaved party).” For cases involving an enslaved person as the subject of a property or other legal dispute but not named as a party to the suit, use the parenthetical “(enslaved person at issue).” For other cases involving enslaved persons, use an adequately-descriptive parenthetical.

As an example, The Bluebook provides Dred Scott:

Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.

This rule comes directly from a proposal offered by Professor Justin Simard in his article Citing Slavery, published by the Stanford Law Review in 2020. Here is Prof. Simard’s proposal:

Second, The Bluebook should require an additional signal, such as an “(enslaved party)” parenthetical, in citations to slave cases. The additional rule could be added as part (e) to section 10.7.1, which governs “Explanatory Phrases and Weight of Authority.” Such a requirement would prevent litigators from intentionally or accidentally obscuring a case’s origin in slavery. Requiring such acknowledgement in citation would provide transparency to the public but not limit the power of judges and lawyers to cite these cases. Federal and state courts could promote a similar process by passing local rules that require the flagging of slave cases.

Prof. Simard’s entire piece is worth reading if you’re interested in how courts should (and do) treat slavery-related precedents. And I want to stress that this Bluebook-specific suggestion is just one of Professor Simard’s proposals. It is not the focus of the piece. And he specifically addresses the need to avoid “canceling” individual judges or entire swaths of case law. He doesn’t propose ending the citation of slave cases. Rather, he views the parenthetical as a prompt for courts to examine their use of these cases, perhaps incentivizing courts either to justify continued use or, alternatively, to use different precedent.

But anyway, that’s Prof. Simard’s article. I’m just here to talk about The Bluebook.

The Supreme Court at UW Law: Gerlach v. The Cove Apartments (Preview Part 3)

I’m publishing this last one just under the wire. On Thursday of this week the Washington Supreme Court will be visiting the UW School of Law to hear arguments on three cases. I’ve already previewed two of those cases: State v. Escalante and Lee v. Evergreen Hospital. 

This post discusses Gerlach v. The Cove Apartments, which could be about a few different things. It might be a tort case about the defense of voluntary intoxication. It might be an interesting landlord-tenant case about the rights of invitees. It might be a case about implied rights of action based on statutes. 

Or it might be a really fact-specific case that depends on the wording of a trial court’s evidentiary decision. You’ll just have to find out. As always, you can skip my summary analysis and just read the briefs yourself, all 450 pages of them!

The Supreme Court will be here Thursday. That’s tomorrow!

Facts and Trial Court Proceedings

The underlying facts of this case are relatively simple: Kim Gerlach lived with her fiance in a unit in The Cove Apartments, which were managed Weidner Property Management. One night, Gerlach, her fiance, and two friends headed back to the apartment after a night out drinking. Here is where the parties’ versions of events diverge. Everyone seems to agree that sometime after she arrived back at the apartment, Gerlach fell from the apartment’s balcony when a rotted railing from the balcony gave way. Gerlach sustained a severe head injury from the fall. She does not remember the event. 

Gerlach sued Weidner/Cove under two causes of action. First, she asserted a traditional common law negligence claim under the normal duty a landlord has to invitees on a property. Second, she asserted a claim under the warranty of habitability under Washington’s Residential Landlord-Tenant Act, RCW 59.18.010, et seq. 

At trial, Gerlach advanced the following theory of events: She returned to the apartment, went inside, made her way to the balcony, and leaned against the railing. The rotted railing then gave way and she fell. Gerlach argued that Weidner breached its duty of care to her by not properly maintaining the railing. She weighed approximately 125 pounds at the time. And she argued that a properly maintained, non-rotted railing should have easily supported her weight.

The Supreme Court at UW Law: Lee v. Evergreen Hospital (Preview Part 2)

Here we go again. In advance of the Washington Supreme Court’s visit to the UW School of Law on February 20, I’m previewing the three cases the Court will hear that day. If you missed my first preview—a discussion of how Miranda applies at the border, which the Court will tackle in State v. Escalante—you can find that here.

In this post, I’m taking a look at Lee v. Evergreen. Once again, you can read all the briefs yourself, here at the Washington Supreme Court website. That’s over 350 pages of briefs—just briefs, not including the evidentiary record. Yikes. [But this post is over 3000 words. How much time are they really saving? –ed. Point taken.]

Lee v. Evergreen has something for everyone: contract interpretation, arbitration, labor law, class actions, civil procedure, waiver, evidentiary issues, and more. It’s a lot. I’ll do my best to boil it all down.

Summary of the Facts, Prior Proceedings, and Issues on Review

The short version: Plaintiff Jeoung Lee was a registered nurse at Evergreen Hospital. She filed a putative class action against Evergreen, alleging that Evergreen violated a state law that required nurses to receive certain rest breaks and meal breaks at certain times during their shifts. Later, Sherri McFarland was added as a named plaintiff, apparently because she was a current employee at Evergreen, which allowed for an extension of the class period. (The effect of and reasons for her addition are hotly debated! More on that later…)

Evergreen argues that the class’s claims are not governed by state law, but are instead governed by the terms of the collective bargaining agreement between the nurses’ union (the Washington State Nurses Association) and the hospital. Under Washington law, the bargained-for terms of a CBA between public employers and employees can supersede statutory rest break and meal break requirements. See RCW 49.12.187. In this case, Evergreen argues that the CBA does in fact supersede the laws that form the basis of the plaintiffs’ claims. Evergreen then argues that, because the claims are based on the CBA instead of state law, the claims should be subject to the CBA’s arbitration provisions.

The trial court disagreed, ruling that the class’s claims were not subject to arbitration. Evergreen appealed.

The Supreme Court at UW Law: State v. Escalante (Preview Part 1)

On Thursday, February 20, the Washington Supreme Court will hear oral arguments at the University of Washington School of Law. Exciting times! In advance of the arguments, I thought folks might enjoy a bit of an argument preview. So that’s what I’m doing. Of course, if you want to read through all the briefing yourself, you can review the filings at the Supreme Court’s own website. The Court is great like that. But if you’d rather just let me do that work, I’ve got you covered.

The Washington Supreme Court will be here soon!

In this post, I’m going to start things off with the first case on the calendar: State v. Escalante. The other two cases—Lee v. Evergreen Hospital Medical Center and Gerlach v. The Cove Apartments—will get the same treatment sometime in the next couple of weeks. This is just Part 1. Stay tuned.

Okay, let’s get to it.

Summary of the Issue and the Facts

State v. Escalante is about what it means for a person to be “in custody” during police questioning. As you already know, probably from watching Law & Order or one of the other eight thousand police procedurals out there, the police have to give a suspect a Miranda warning after they arrest him and before they question him. (Well, they don’t “have” to, but if they don’t, then they can’t use the suspect’s answers.) Often, the warning is given when the suspect is formally arrested. But the constitutional requirement to give a Miranda warning does not depend on an officer saying “I’m placing you under arrest.” Rather, a suspect is entitled to receive the warning before being subjected to custodial interrogation. And a suspect can be in “custody” without having been formally arrested. But what does it mean to be “in custody”?

The President’s Statutory Power to Build the Wall

In the next few weeks, statutory interpretation is going to be the talk of the town. President Trump’s emergency declaration, though it has all the trappings of a constitutional crisis and king-like assertions of power, is really nothing more than a nice little question about the meaning of statutes. Congress passed a statute that allows the President to declare a “national emergency.” Once the President makes that declaration, he can then invoke other statutes (also passed by Congress) that give the President specific powers otherwise unavailable without the declaration.

“Walls work.” –President Trump

For the President’s wall, that statute is 10 U.S.C. § 2808, which gives the Secretary of Defense the power to “undertake military construction projects” after the President declares a national emergency:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act . . . that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.

And there you have it, right there in the text written by Congress: The President can start building things “without regard to any other provision of law.” It’s statutes all the way down.

But the statutory scheme contains a few textual stumbling blocks for the President, places where the courts might step in and say that he’s exceeded the authority granted by Congress.

The Problem of Authority

Review of Amy J. Griffin, Dethroning the Hierarchy of Authority, 97 Or. L. Rev. _______ (forthcoming)

Legal analysis differs from other forms of analysis in (at least) one important respect: We have to deal with authority. The wall between “is” and “ought” can be insurmountable when you’re standing in front of a district court judge and she’s got a U.S. Supreme Court opinion that says you lose. Maybe the Supreme Court got it wrong. It happens. But you’re not going to win with that argument to the district court judge. She’s bound to follow that controlling opinion from the Supreme Court.

But outside of that simple example—binding authority with a directly on-point holding—the wall gets a bit more blurry. How do courts resolve legal questions when no clearly binding authority exists? And how should they resolve those questions? 

Carrying a lantern into that darkness is Professor Amy Griffin’s new article, Dethroning the Hierarchy of Authority. The article attacks the binary way most lawyers conceptualize authority. In one bucket we put “binding” authority, which follows the fixed hierarchy of the courts. And in the other bucket we put so-called “persuasive” authority, which is just a jumble of everything else. Professor Griffin thinks we can do better:

We need better vocabulary, metaphors, and descriptive tools for sources used in legal argument in order to reach the more critical questions of what courts treat as law and why they do so.

Dethroning the Hierarchy at 4.

Lawyers are quite good at addressing the easy questions, like my simple Supreme Court example. The Washington Court of Appeals understands that Washington Supreme Court opinions are binding authority. And it understands that Pierce County Superior Court opinions are not. But Professor Griffin observes that beyond those easy questions, our concept authority just isn’t up to the task:

For hard legal questions, [the existing binary scheme] tells us nothing about what sources a decision-maker might rely on beyond those that are binding. The existing model ignores the element of choice, assuming rules of law found within a prescribed set of legal sources dictate legal outcomes.

Dethroning the hierarchy at 5.

Nobody actually weighs an opinion, do they?

An Update on Intra-Divisional Stare Decisis in Washington

Back in February, the Supreme Court of Washington decided In re Arnold, which held that a Division of the Court of Appeals should not follow the decisions of the other Divisions as a matter of horizontal stare decisis. As I observed at the time, the Supreme Court’s distinction between inter-Division conflicts and intra-Division conflicts doesn’t find much basis in the law:

The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.

Last week, Chief Judge Appelwick of Division 1 decided to take the next logical step. He asserted that “[o]ne division of the Court of Appeals is not bound by the decision of another division” (citing to In re Arnold). But then he went further: “Nor is one panel of the Court of Appeals bound by another panel, even in the same division.” In re Marriage of Snider at 4 (emphasis added). 

The Bluebook and New York City

Let’s say you need a new chef’s knife. So you go to Bed, Bath & Beyond and head for the kitchen section. (That’s part of the “Beyond,” I guess.) In a fancy cutlery display you see a large selection of chef’s knives. But you don’t buy any of those. Instead, you walk right past the chef’s knives and over to the cheese knives. After perusing a bit, you buy this set:

That’s a nice set of cheese knives!

Looks pretty nice! But when you get home and start preparing dinner, the cheese knives just don’t seem to do the job. It’s a total disaster! The next morning you go back to BB&B to return the knives. “They didn’t work at all! I couldn’t even slice a tomato with these things!” you complain. “And don’t even get me started on what happened when I tried to dice an onion!”

Not surprisingly, the customer service rep at BB&B isn’t sympathetic. She calmly responds, “Sir, these are cheese knives.”

Obviously, nobody would ever do anything like that. We understand that different tools have different purposes. And you shouldn’t malign a tool for not working in circumstances for which it was not designed to work. Something clearly labeled “cheese knife” should be used for cheese, not dicing onions.

But for some reason, people malign The Bluebook for this sort of thing all the time. The most recent entry in the catalog is this piece from Judge Gerald Lebovits: Cite-Seeing Part II: The Bluebook’s New York Bloopers. Judge Lebovits pulls no punches in his critique of The Bluebook’s “mistakes”: It “fails miserably when it comes to New York citations.” “Every rule and example in the Bluebook violates how a practitioner, judge, or academic should cite New York authorities.” “The Bluebook’s rule also contradicts” various state rules and statutes. And “it’s not hard to spot incorrect examples for New York in the Bluebook.”

Yikes.

Six Suggestions for Improving The Bluebook

So there I was on Sunday evening, October 7. A glass of scotch in hand, all ready to fill out the official Bluebook questionnaire, which would allow me to suggest improvements for the forthcoming 21st edition.

A dramatic reenactment of my preparation for the survey

But then I clicked on the link. Apparently, despite previous reassurances that the survey would be open until October 8, I was too late. The survey was already expired. 

I was not pleased.