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.

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: Meritless Defamation Claim Results in Sanctions

Dee Ann Stiles used to be the Secretary for the Shore Woods Homeowners’ Association (“Association”). Gerald Kearney was a former member of the Association’s Executive Board (prior to Stiles’s tenure) and apparently he didn’t think Stiles was doing a very good job. Kearney wrote some “hostile” emails to the Board claiming that there were “inherent problems” with Stiles’s work on the Board and specifically stating that her meeting minutes were “written from the point of view of someone with an axe to grind” and telling Stiles, “Do your job even-handedly or step down.”

So of course, Stiles sued for defamation! Unfortunately (for her) the trial court concluded that she failed to offer any “credible or cognizable evidence” regarding (1) the falsity of Kearney’s statements, (2) whether the statements were privileged, or (3) her claimed damages. That’s no good. The court “concluded that the complaint was not well-grounded in fact or law and that Young [Stiles’s attorney] failed to conduct a reasonable inquiry before filing the complaint.” Accordingly, the trial court awarded sanctions against Stiles and Young under CR 11 and RCW 4.84.185.

Stiles appealed. The Court of Appeals, in Dee Ann Stiles v. Gerald Kearney (Division 2, February 29, 2012) (published May 22, 2012), affirmed the trial court in full. The Court of Appeals’ decision was initially unpublished, which likely explains why the Court’s analysis of the sanction issue is very superficial. Basically, the Court sets out the general legal standards, states that the trial court properly recognized those standards, and that the decision to impose sanctions based on a “well-written six-page memorandum opinion” was not an abuse of discretion.

A Judicial Political Ad… with a Catchy Hook

Covering the Washington Courts of Appeals just got a lot more interesting. Attorney Jim Foley is running for a spot on the Division 2 Court of Appeals in Olympia. And thanks to Above the Law, I am now aware of his foot-tapping, head-bopping campaign ad/song, which features video of him cooking dinner and bench pressing in a tank top. Seriously, this aspiring judge’s rap video needs to be seen to believed:

Yes, it rhymes “denial” with “beguile.” It’s that awesome. I’m just upset he didn’t include a line or two ripping his opponents. We might have had a legit beef on our hands. The ATL story has more background on his campaign, along with another (sadly more traditional) campaign video. The whole thing is worth a read.

Daily Decisions: Apportionment of “Just Compensation” to a Commercial Tenant

I should admit at the outset that I don’t really like this case. The whole thing seems unfair. But I’m not sure how much of that perceived unfairnes is just the way it is, or whether perhaps the case should have been decided differently. I have no idea.

With that disclaimer, here is City of Puyallup v. Carl R. Hogan (Division 2, May 16, 2012). Carl Hogan owns a shopping center in Puyallup. But he used to own a little bit more. A “small portion” of his shopping center was condemned by the City in connection with a road construction project. As a taking, Hogan was entitled to “just compensation,” which a jury calculated at $5,150,000. That award was based, at least in part, on the City’s elimination of a road, which would reduce traffic and access to the center (and therefore reduce the number of shoppers).

Okay, so far so good. But then Borders (the shopping center’s “anchor tenant”) claimed that it was entitled to a portion of the award. The trial court agreed and awarded $948,000 to Borders after a “bench apportionment trial.” I admit that this is the first time I’ve ever heard of such a procedure.

Daily Decisions: Don’t Use Your Mother’s Trust Account to Buy a House for Yourself

Well, Theresa A. Roberts v. Denise H. Roberts (Division 2, May 15, 2012), is a nice little case for the Court to hand down a couple of days after Mother’s Day. Theresa Roberts is Denise Roberts’s mother. Theresa had appointed Denise to be the trustee of a revocable living trust Theresa created to provide for her own care.

I’m going to go out on a limb and say that Denise wasn’t the best choice for trustee. Denise took money out of the trust account to pay for her own property and to build a home. Then she put Theresa in an assisted living facility. When a court appointed a “guardian” to look after Theresa’s interests and to protect Theresa’s assets — a protection deemed necessary because of Theresa’s dementia — Denise promptly transferred property to her husband and other insiders for no consideration.

Daily Decisions: Drug Test Results Exempt from Public Records Act

The Freedom Foundation (“FF”) filed a public records request for documents relating to a ferry accident in Seattle. In Freedom Foundation v. Washington State Department of Transportation (Division 2, May 10, 2012), the Court of Appeals referred to the accident as an “allision,” which is defined as “contact between a moving vessel and a stationary vessel or object.” That was a new one for me. I like it.

Anyway, in response to FF’s request, the Department of Transportation (“DOT”) produced documents, including information that drug and alcohol testing had been conducted on the ferry’s crew. However, DOT redacted the results of the individual tests. FF filed suit, asserting a right to unredacted records.

The Court of Appeals held that the records were properly redacted pursuant to (1) the PRA’s “other statute” exception, together with (2) federal regulations requiring that drug test results be kept confidential. Under the relevant federal regulations, marine employees must be tested for alcohol and drugs following any “serious marine incident.” The ferry employees here at issue were tested pursuant to that requirement. However, related regulations require that the results of those tests be kept confidential.