This is a column created by King County Superior Court Chief Civil Judge John Erlick. Judge Erlick, and the Court as a whole, would like to hear concerns of members of the bar and to answer frequently asked questions to share with practitioners. Judge Erlick invites you to ask questions by contacting him at john.erlick@kingcounty.gov. The judge will be unable to personally answer all questions individually, but will select three or four questions of general interest to answer and publish in this bi-monthly column.
Dear Chief:
If I remember correctly, there will be several judicial retirements coming up this year. I am unclear as to who should be handling my motions and where I should note them when my assigned judge has retired or gone off to greener pastures (i.e., the federal bench) and a new judge has not taken office. Do I have to wait until the new judge has been appointed or should I request that a new judge be assigned?
—In Judicial Limbo
Dear Limbo:
Each judge is assigned a department (for example, my department is Department 51.) When a judge resigns or retires and no new judge has yet assumed that judicial department, you should still note all matters before that department (or you can note it before the resigned/retired judge). That department’s matters and caseload will be covered by other judges until the new judge is assigned to that department.
If your matter is a non-oral motion, it will be decided by another judge on our court. If your matter requires oral argument, you will be contacted and advised as to which judge will be hearing your matter. The court will make every effort to keep hearings at the same time as they were originally scheduled. However, there may be a need to reschedule some hearings to accommodate the covering judge’s schedule.
In general, we are making every effort to have staff cover vacant departments so that you can still schedule matters in the future.
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Dear Chief:
A party has obtained a default judgment against our client and we want to move to vacate. The default order was issued by a commissioner. The case, of course, was individually calendared. We believe we need to get a show cause order from a commissioner for a hearing on why the default should not be vacated. Do we note that hearing before a commissioner, before the IC judge or before the chief civil judge?
—Defaulted
Dear Defaulted:
Yes, you need to get an order to show cause why the default judgment should not be vacated. Let me refer you to King County Local Rule 60(e). When you go to the Ex Parte Department, you will need a date for the hearing on the order to show cause. That order needs to be process-served on the party whose judgment you are seeking to vacate.
You should contact the bailiff for the court hearing the show cause matter. That court is the IC judge to whom the case was originally assigned, unless that IC judge has since been transferred, either to another case designation area (i.e., you have a SEA case and the judge has since been transferred to KNT-Regional Justice Center) or to Juvenile Court. If the previously assigned IC judge has been transferred, note your hearing before the Chief Civil Judge, if you have a SEA case, or before the Regional Justice Center Chief Judge (currently Judge Brian Gain), if a KNT case.
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Dear Chief:
I have one case before one judge and a related case arising out of the same set of facts that was filed six months later before another judge. I would like to consolidate the two cases pursuant to Civil Rule 42. Should I file the motion before the judge in the earlier case or the later case?
—Consolidator
Dear Consolidator:
Under your set of facts, the motion to consolidate should be noted before the Chief Civil Judge. See KCLR 40(b)(4). If there are two or more different judges assigned to different matters that you are seeking to consolidate, the motion to consolidate is scheduled before the Chief Civil Judge to determine which judge would best handle the consolidated cases, if the motion is granted. If the cases you are seeking to consolidate are already assigned to the same IC judge, then your motion to consolidate those related cases should be noted before that IC judge.
There are a number of factors that I consider when determining which judge should be assigned. Among those are the caseloads of the individual judges, the departments to which the judges are assigned (criminal or civil), and the degree of involvement in the case that the judges have had. Although we attempt to accommodate the parties’ stipulation to a particular judge, we cannot necessarily agree to that consolidated re-assignment based on the indicated and other factors.
KCLR 40(b)(4) also provides for transfer of cases to a particular judge “for reasons of the efficient administration of justice.” This may occur in instances where cases are not necessarily appropriately consolidated, but the same judge should be assigned a similar (or related) case for case management and pretrial purposes.
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Dear Chief:
My client filed an Affidavit of Prejudice against a judge. When I was trying to note a motion subsequently, I found out that the case had not yet been re-assigned. Is there any reason for the delay?
—Judgeless in Seattle
Dear Judgeless:
Affidavits of prejudice should be presented for approval to the judge whom you are requesting removed from the case. The judge will check the file to confirm that no discretionary rulings have been made while your client was a party to the litigation. See RCW § 4.12.050.
Once that has been confirmed, the affidavit is forwarded to the Chief Civil Department for re-assignment to the next judge on the rotation list. If you just file the affidavit with the Clerk’s Office, there is no way for the clerk to confirm that the affidavited judge has accepted the affidavit and approved it in compliance with the statutory requirements. Obtaining the judge’s signature confirms the acceptance of the affidavit and provides for the transfer to another judge.
As an aside, affidavits of prejudice may not be filed against a court commissioner. The appropriate remedy for a party dissatisfied with a commissioner’s ruling is a motion for revision under RCW § 2.24.050. See KCLR 40(g).