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 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.

Just a Little Case About the Foundations of Judicial Power

The hottest new Washington Supreme Court decision is Eyman v. Wyman. It has everything.

A split judgment with no clear majority decision. A debate about the proper role of the courts when dealing with unconstitutional statutes. And Washington’s indirect initiative procedure.

What’s Washington’s indirect initiative procedure?

It’s that thing, where a group of citizens can collect signatures, and then propose a statute . . . .

Okay, that’s enough of that gimmick. The case, however, is truly fascinating, and I think it’s worth a deep dive. I’m not going to focus too much on the substance of the dispute, which involves the rules regarding the initiative process. But the other two things–the lack of a majority decision and the remedial question of how to deal with an unconstitutional statute–are tied up with those rules. So there’s a bit of background work to do before we get to the good stuff. Stay with me.

Don’t Be a Quitter! Think About Creating Stylish Citations.

Citations are like the weather: Everyone complains about them, but nobody does anything about it!

Until now.

If you’re a reader of this blog, you’re likely interested in legal writing. And you likely realize that legal writing is full of italicized text and parenthetical information and weird abbreviations that often come between sentences—the citations. I’ve previously written about citations. But I focused mostly on the isolated, narrow issue of citation format. I was interested in the citation as a citation. My take: The Bluebook, for lack of a better word, is good.

But an excellent new paper by Professor Alexa Z. Chew (of UNC School of Law) takes a much broader and more functional approach to legal citation. You should read it.

Outrage to the Outrage in Response to the Outrage Machine

You might have heard about the Florida lawyer who opposed a pregnant attorney’s request for a continuance. Here’s the story: A defense attorney, Christen Luikart, sought a trial continuance because (or at least in part because) she is pregnant, and her due date might conflict with the trial. The plaintiff’s attorney, Paul Reid, opposed the motion. The judge held a hearing on June 4; she granted the continuance. The end.

Well, of course, that’s not really the end. Last week–a month and a half after the hearing–The American Lawyer wrote a story about the request and opposition. Above the Law followed suit with a story headlined “Biglaw Partner Accuses Small-Firm Litigator Of Using Pregnancy To Delay Trial.” Similarly, the American Lawyer story claimed Mr. Reid “suggest[ed] [Ms. Luikart] became pregnant as a ploy to delay the litigation.” A day after the story broke, Mr. Reid had been suspended by his law firm.

But that wasn’t the end either. Then came the “backlash to the backlash.” Professor David Bernstein wrote a post over at the Volokh Conspiracy entitled “The Outrage Machine Claims a Victim: A Play in Seven Acts.” The implication of Prof. Bernstein’s post is clear: Mr. Reid didn’t really do anything to warrant a suspension. But a mob of SJWs overreacted to a mundane filing, Mr. Reid’s law firm caved to the hysteria, and now a man who really didn’t do anything wrong has become the victim of “a click-bait-driven outrage cycle.”

Maybe.