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.

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”?

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). 

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.

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…