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.
Okay, so neither the statute (for Superior Court) nor the rule (for Municipal Court) includes any prohibition on general “policies” of disqualification or filing affidavits against the same judge in different matters. The Municipal Court rule provides that a party can only use the affidavit procedure once “in the case” and can only disqualify one judge per case: “Only one such affidavit shall be filed on behalf of the same party in the case and the affidavit shall be made as to only one of the judges of the court.” CrRLJ 8.9.
But the clear implication here, with an express limit of only one judge per case, is that you can disqualify that judge again in a future case.
Also, while your instincts might tell you that the law might (or should?) provide different rules for prosecutors and defense attorneys, the law contains no such distinction. Prosecutors can disqualify “too nice to defendant” judges in precisely the same way that defense lawyers can disqualify “too harsh” judges. (Again, this seems similar to traditional rules around peremptory challenges.)
Without a textual hook for an objection, I started thinking one level up. Would there be any constitutional or abstract kind of “fairness” doctrine that might prevent prosecutors from adopting this kind of policy—a rule that wouldn’t necessarily apply to defense lawyers or public defense offices?
I didn’t find anything in Washington law along those lines, at least not in connection to these affidavit procedures. But I did find one interesting case in which the Washington Supreme Court rejected a prosecuting attorney’s office policy that foreclosed case-by-case discretion.
In State v. Pettitt, 609 P.2d 1364 (Wash. 1980), the defendant was sentenced pursuant to the prosecuting attorney’s “mandatory policy of filing habitual criminal complaints against all defendants with three or more prior felonies.” The law at the time apparently permitted, but did not require, a prosecutor to charge a defendant as a “habitual criminal” if the defendant had three or more prior felonies. The prosecutor in Pettitt “relied on the [defendant’s criminal] record alone in deciding to file the habitual criminal information” and “testified that he did not consider any mitigating circumstances.” Further, he explained “that he could imagine no situation which would provide for an exception to the mandatory policy.”
The Supreme Court concluded that this mandatory policy “constitute[d] an abuse of the discretionary power lodged in the prosecuting attorney.” Accordingly, the Court “remand[ed] thematter for resentencing based on a recommendation reached through the exercise of prosecutorial discretion.”
What’s strange about the Court’s ruling, at least to me, is that it lacks a clear legal basis. Pursuant to what rule or power is the Court reviewing the prosecutor’s decisionmaking and what is the standard for determining when that the “discretionary power” is “abused”?
The Court begins by noting a prosecutor’s “wide discretion” in charging decisions. It then pivots from the existence of discretion to the “assum[ption] that the prosecutor will exercise it after analysis of all available relevant information.”
In support of that proposition, the Court quotes the then-recent U.S. Supreme Court decision in United States v. Lovasco, which involved a defendant’s right (or lack thereof) to avoid pre-indictment delay. The Court declined to adopt a rule that would require a prosecutor to indict as soon as the evidence supported an indictment, or any other similar indictment- or arrest-forcing rule. The legal issue, raised by the defendant in that case, was a right against pre-indictment delay, which might prejudice the defendant’s ability to present a defense. The Court held that neither the Due Process Clause, the Speedy Trial Clause, nor any other clause of the Constitution required immediate indictment. That issue seems only tangentially related to a prosecutor’s ability to adopt general policies that cabin its own office’s discretion.
Following that citation to Lovasco, the Pettitt Court then cites ABA Standards for prosecutors (or at least a 1971 draft of those standards). The Court does not, however, claim that those standards create enforceable rights. Rather, the Court introduces the standards by noting merely that “prosecutorial discretion is an important and delicate component of the office.”
After mentioning the standards, the Pettitt Court concludes by noting other instances in other settings where the Court has required other public officials (not prosecutors) to exercise discretion. None seem apposite on my reading.
But my quibbles with Supreme Court reasoning aren’t worth a whole heck of a lot. The takeaway, if you’re thinking about whether Washington courts would uphold the City Attorney’s blanket affidavit policy, is that the Supreme Court seems willing to adopt an abstract, untethered “abuse of discretion” standard for reviewing policies adopted by a prosecuting attorney. And even though the policy and facts of Pettitt are not on point here, that precedent would likely support an appellate judge (or Justice) who wanted to invalidate the City Attorney’s policy.
Lacking directly on-point authority in Washington, our state’s courts might look elsewhere, to see how other states with similar disqualification procedures have dealt with similar prosecutorial policies. Minnesota provides an interesting example. In State v. Erickson, 589 N.W.2d 481 (Minn. 1999), the Minnesota Supreme Court reviewed a county’s “blanket exercise” of a rule that allowed “a defendant or prosecuting attorney to peremptorily remove a judge.” The county attorney in Erickson had filed notices to remove one judge in “a vast majority of criminal cases prosecuted by that office and assigned to” the judge. The court ruled that “such blanket filings . . . constitute an abuse of this rule.”
The Erickson Court… well, I’m not sure what verb to use here. It rejected the policy? It disapproved of the policy? I don’t know. The court wasn’t hearing an administrative challenge to the rule itself. Rather, it was hearing an appeal from a motion the defendants filed “objecting to the removal” of the judge. In any event, the Erickson Court remanded the cases to the trial court and ordered the judge reinstated, subject only to removal for cause. Furthermore, the court “suspend[ed] the privilege” of the county attorney’s office to use the peremptory removal rule for six months. Wowsa.
The Minnesota Supreme Court was a bit more clear than the Pettitt Court about the legal basis for this decision. But that basis itself was, well… not so clear. The Erickson Court relied on its “inherent authority to ensure the proper administration of justice.” On that basis, the court refused to “allow the prosecutor’s abuse of this rule to continue.” The Erickson Court had abundant Minnesota precedent on which to rely when determining the scope and extent of its inherent power.
My sense is that Washington courts have similar inherent authority, especially on matters of court procedure. Take, for example, this passage from the Court of Appeals:
Washington courts derive their judicial power from article IV of the state constitution and from the legislature . . . . The inherent power of the court is the power to protect itself; the power to administer justice whether any previous form of remedy has been granted or not; the power to promulgate rules for its practice, and the power to provide process where none exists.
The inherent power of article IV includes the power to govern court procedures, including the rules of evidence. Moreover, the judiciary’s province is procedural and the legislature’s is substantive. Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.
Michel-Garcia v. State, 454 P.3d 117, 129 (2019) (cleaned up). Michel-Garcia didn’t support the inherent authority asserted in that case, and the substantive issue wasn’t at all similar. But you get the idea. We’ve got “inherent authority” precedent in Washington as well.
Two more quick notes, in case you want to read more cases. The Arizona Supreme Court faced a similar question in State v. City Court of City of Tucson, 722 P.2d 267 (Ariz. 1986), and similarly rejected the city prosecutor’s blanket removal policy. Though the prosecutor had the authority under the Arizona rules to remove the specific judge there at issue, the city prosecutor’s blanket policy was “an abuse of the Rules of Criminal Procedure for two reasons.”
First, the policy “require[d] each deputy . . . to exercise peremptory challenge to [the judge], regardless of whether the attorney handling the case believed this was mandated.” The City of Tucson Court treated this revocation of discretion as a basis for rejecting the rule by citing to…. wait for it…. …. the Washington Supreme Court’s decision in Pettitt!
Second, the policy “amounted to an improper attempt to influence a judge in his judicial decisions” because the “effect of the policy was to bring pressure upon” the judge.” The court viewed the policy as an attempt to “intimidate” the judge and the rest of the bench. “As such the policy was an abuse of the rules and a threat to the independence and integrity of the judiciary which cannot be allowed.”
But not all courts have gone the same way! California has a similar rule, and apparently has no problem with these blanket challenges. In Solberg v. Superior Court of San Francisco, 561 P.2d 1148 (Cal. 1977), the California Supreme Court didn’t quite bless the practice, but said that it wasn’t going to do anything to stop it. Previously, the court had “strongly disapproved” of the practice of “blanket challenges.” And the Solberg Court reaffirmed that position. Yet the court explained that the legislature (which fashioned the disqualification rule) “clearly foresaw that the peremptory challenge procedure would be open to such abuses but intended that the affidavits be honored notwithstanding misuse.”
Instead of rejecting blanket challenges, the Solberg Court noted that the use of such policies would work itself out among the lawyers and judges. The potential for abuse, in the court’s words, would be “self-limiting”:
A district attorney or a public defender must realize that his practice tends to be concentrated in a particular court, and that if he or his deputies file unwarranted “blanket challenges” against a particular judge the effect may well be to antagonize the remaining judges of the court, one of whom will be assigned to replace their unseated colleague, and the presiding judge, who will make that assignment. Moreover, the delay attendant on such a substitution should not commend itself to the prosecutor whose duty and self-interest urge prompt disposition of pending cases, or to any defense counsel whose client has not been released on bail and for that or other reasons benefits from speedy trial requirements.
Solberg, 561 P.2d at 1161.
Anyway, there you have it. The long answer is still: Maybe? There’s some basis in Washington law for a court’s inherent power over its procedures. And there’s Washington precedent in Pettitt for courts to use general inherent authority to review a prosecutor’s policy of removing discretion. Moreover, courts in Arizona and Minnesota have rejected blanket removal policies similar to the one adopted by the City Attorney’s Office here, with Arizona directly citing Pettitt in support of its conclusion. But then there’s California. So who knows. For now, we wait and see if and how the various judges and attorneys respond. Let’s see how “self-limiting” the potential for abuse is here.
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