November 2016 Bar Bulletin
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November 2016 Bar Bulletin

A Complicated Legal Fiction:
Changing the Affidavit of Prejudice Rule

By Brian Zuanich


Judges must recuse themselves from a hearing a case when their impartiality can reasonably be questioned. But in Washington, a lawyer can force a judge off the case, even if the judge thinks he or she can oversee the case fairly.1 The lawyer simply files an affidavit and the judge walks away. No questions asked.

Sounds simple, right? In fact, the affidavit of prejudice rule is confusing and overly complicated, and the courts’ efforts to bring clarity have done anything but. The Legislature needs to step in and change the law.2

The Rule

Here’s the basic rule, in a nutshell: A party has the right to remove one judge per case unless the judge has already made a “discretionary” ruling.3 To exercise this right, the lawyer must file an “affidavit of prejudice” alleging that the party “cannot have a fair and impartial trial” in front of this judge.4 The party, however, does not have to allege any specific facts establishing prejudice — either on the record or in the affidavit itself.

Nor does the judge have any right to consider the merits of the affidavit.5 Presumed is deemed proven by the very filing of the affidavit. The affidavit is the judicial equivalent of a peremptory challenge against a juror.

What, then, is a discretionary ruling? “The court’s discretion is invoked,” our Supreme Court has held, “only where, in the exercise of that discretion, the court may either grant or deny a party’s request.”6 In other words, if the judge can say yes or no, she is exercising discretion. Ruling on a contested motion to suppress, granting a contested discovery motion, presiding over a jury trial — these are obvious discretionary actions.

But what about ruling on a motion to continue? Here it gets messy. In 2011, the Washington Supreme Court held that the decision to deny a motion to continue is discretionary.7 But in 2016, the Court of Appeals ruled in State v. Lile that granting a “joint motion” to continue a trial date is not discretionary, because the court was in effect simply carrying out the will of the parties.8

The Court’s logic in Lile is flawed. Agreed continuances are not self-
executing — if they were, judges would not need to “grant” them. But more importantly, an agreed continuance does not automatically make a continuance valid. A continuance requires “good cause” and only the judge can decide that — by exercising his or her discretion.

Consider this hypothetical. Defendant Smith pleads guilty to a crime. Smith’s attorney and the prosecutor ask Judge Jones to follow their agreed-upon sentencing recommendation. Judge Jones reviews the police report, looks over Smith’s criminal record, listens to the parties and imposes the agreed sentence. Can anyone reasonably argue that Judge Jones was not exercising discretion simply because he carried out the will of the attorneys?

This shows the first major flaw of the affidavit rule: It is unclear what separates a discretionary ruling from a non-discretionary action. But the rule is also flawed because the Legislature has statutorily declared that certain actions are not discretionary, even though they clearly are.

RCW § 3.34.110, for example, says that “the setting of a motion or a case for trial” is not a discretionary ruling.9 The Court of Appeals dealt with this issue in Hanno v. Neptune Orient Lines, a 1992 case.10 In Hanno, the trial judge filled out a standard pre-trial order for a civil case. He put down the pre-trial conference date, but he later changed the date on his own “initiative” without consulting the parties. The Court ruled that the trial judge did not make any discretionary rulings when he completed the order; rather, he merely calendared the case for trial, a simple scheduling task.

But the Hanno opinion raises a lot more questions than it answers. Why did the judge amend the pre-trial order? Was it simply a mistake or did he determine that the second date was preferable? And if it was the latter, then didn’t he have the discretion not to change the date? The parties were not consulted, so clearly he was not carrying out the parties’ joint intent. The Court simply sidestepped these issues.

The following hypothetical illustrates the artificial and unworkable distinction between a discretionary and a non-discretionary action. Attorney Smith wants the case set for trial in June. Attorney Green wants the case set for trial in July. Judge Jones hears arguments and schedules the case for trial in July. In doing so, Judge Jones did more than just mechanically set a case for trial; she decided when the trial would occur, which is what really mattered. She exercised discretion.

The Legislature also tells judges that setting bail is a non-discretionary act, but this is also wrong.11 To determine whether bail is appropriate, a judge must determine whether a defendant is unlikely to appear in court, which requires a careful review of the defendant’s criminal record, warrant history, the nature of the crime charged, and the likelihood that less restrictive conditions will assure his or her future appearance in court.12 If this decision is not discretionary, then arguably nothing a judge does is discretionary.

There’s a final problem with the affidavit rule — one the courts have created. As we saw earlier, the party filing an affidavit of prejudice does not have to establish actual prejudice, which in essence means that the party can file an affidavit for any reason. By this logic, an attorney should be able to file an affidavit for purely strategic reasons, such as getting a continuance.

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