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.

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 Substance of Citation (or a suggestion for the Washington Reporter of Decisions)

Like many states, Washington has its own citation rules. The Washington Style Sheet tells Washington judges and lawyers to use The Bluebook—with a few exceptions. So, for example, instead of citing statutes with “Wash. Rev. Code” we can just use “RCW.” And we don’t need to provide the publication date or publisher for citations to statutes. Huzzah! And instead of using just P.2d or P.3d to cite Washington cases, we also use Wn. App. and Wn.2d (no space!) as additional parallel citations.

Zombie Horizontal Stare Decisis in the Washington Court of Appeals

If you read this blog, you know that the Washington State Supreme Court recently rejected horizontal stare decisis among the Divisions of the Court of Appeals. They were pretty clear about it:

We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals.

In re Arnold, 410 P.3d 1133, 1139 (Wash. 2018). Any kind! That’s pretty vehement.

When the Court issued Arnold, I was a bit confused. The Supreme Court seemed concerned that a Division should not feel “bound” by another Division. But the Court of Appeals in Arnold never said it was bound. Instead, it was just following its sister Division for prudential reasons.

Which brings us to today’s Court of Appeals decision from Division 1 in State v. Sullivan. The Sullivan court does not cite Arnold, but it does rely on precedent from another Division. Here’s the Court of Appeals rejecting one of the appellant’s arguments:

Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead, Sullivan’s argument relies entirely on speculation, arguing “it is safe to assume one or more jurors left the jury room. . . , if, for no other reason than to use a bathroom” during the two hours of deliberations. “[S]peculation that a juror may have left the jury room during deliberations . . . is insufficient to warrant review under RAP 2.5(a)(3).” State v. St. Peter, 1 Wn. App. 2d 961, 963, 408 P.3d 361 (2018).[n2]

And here’s the problem. The Sullivan court relies on St. Peter and only St. Peter for this point of law. But St. Peter is not a Supreme Court case. It’s not even a case from Division 1 of the Court of Appeals. Instead, St. Peter was decided by Division 3.

The Unanimous Washington Supreme Court to Ziff: “You Are Wrong”

Well, not quite. They didn’t call me out by name. But still… Yikes.

Last month I wrote about In re Arnold, a then-pending case in the Washington Supreme Court involving stare decisis and the state’s intermediate Court of Appeals. I argued that the Supreme Court should stay out of it. Let the Court of Appeals figure out its own rules for stare decisis. Or perhaps the Supreme Court could use the rulemaking process or recommend that the legislature clarify the Court of Appeals’ structure so that stare decisis could work more smoothly.

The Supreme Court did not take my advice. In a unanimous opinion (!) the Court dove right in, holding that a Division of the Court of Appeals should not follow the decisions of other Divisions. I can appreciate the Court’s desire to resolve this problem. But unfortunately, I think the Court’s decision raises more questions than it answers. Here are a few:

Stare Decisis and the Consubstantiality of the Washington Court of Appeals

You know the line about a bad restaurant: “The food is terrible. And the portions are so small!” Well, this is the blog version of that restaurant. It’s not a good post. And it’s so long.

Here’s my excuse: This post is about a currently pending case in the Washington Supreme Court that seeks to set a rule of stare decisis for the state’s intermediate court of appeals. So things get abstract pretty quickly. This is a case about the law about law about law. Yup, you read that right: It’s meta-meta-law. First we’ve got the substantive law: the three-part test, the scienter requirement, the proper jury instruction, the meaning of the statutory term, &c. That’s the law. And then there’s stare decisis—i.e., the law about that law. A court might disagree with a prior decision on the substantive law. The applicable rule of stare decisis tells the court whether or when the court gets to depart from that substantive law. But who determines the relevant rule of stare decisis? And on what basis is that rule determined? That’s the law about the law about the law. And it gets a bit messy.

But first, some background…

Daily Decisions: Division 1 Limits Bases for Attorneys’ Fee Awards

Dallas and Marylou Bunney wanted to build a new home. Unfortunately for them, their plans called for a home that exceeded the height limit set by their homeowners associations (“HOAs”). But hey, you only live once. So the Bunneys figured, whatever, you only live once. They built the thing anyway.

The HOAs sued for violation of the HOA covenants. The trial court (1) enjoined the building of the Bunneys’ home and (2) awarded the HOAs their attorneys’ fees for the Bunneys’ prelitigation bad faith conduct. In Greenbank Beach and Boat Club, Inc. v. Dallas K. Bunney (Division 1, May 29, 2012), the Court of Appeals affirmed the trial court’s injunction, but reversed the award of attorneys’ fees.

Daily Decisions: A (Limited, I Hope) Victory for Employers’ Power to Restrict Former Employees

Robert S. Moore v. Commercial Aircraft Interiors, LLC (Division 1, May 29, 2012), is not factually unique — person leaves a job, he wants to work for a competitor, lawsuits are threatened, and we end up in court — but the Court of Appeals’ ruling seems to touch on some new law regarding what sorts of litigation threats a former employer can make (hint: lots of latitude) and what redress a former employee has against those threats (hint: you’re S.O.L.). Don’t get too excited, however. While a broad reading of the opinion gives a lot of power to employers to restrict their former employees, I think a narrower (and more appropriate) reading just requires a former employee to produce some (any!) evidence of improper purpose behind an employer’s allegedly tortious actions. 

Daily Decisions: Court of Appeals Again Clarifies Subject Matter Jurisdiction

There are a lot of facts in MHM&F, LLC v. Edward Pryor, Jr. (Division 1, May 21, 2012), but none of them really matter. The short story: Pryor owed money on a mobile home space, he didn’t pay, so the plaintiff filed an unlawful detainer action against him. Pryor lost.

On appeal, Pryor raised two issues that he failed to raise in the trial court: (a) that the wording on the summons was defective and (b) that the mobile home association for the group of lots should have been named as a necessary party. Pryor claimed his failure to raise these issues below was not fatal because they both went to the trial court’s subject matter jurisdiction.

Daily Decisions: “Slayer Rule” Does not Apply to Self-Defense

“Marni Rice and Michele Parrott were in a committed relationship” — until the two had an argument and Parrott wound up dead. Plaintiff Robin Parrot-Horjes then sued individually and on behalf of Parrott’s estate seeking (a) damages for wrongful death and (b) to prevent Rice from taking money from Parrott’s life insurance policy under the common law “slayer rule.”