In the Supreme Court of the State of Washington

 

STATE OF WASHINGTON, Respondent, v. ERIC VINCENT BARNES,                     Petitioner.

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No. 74408-4   MEMORANDUM OPINION OF JUSTICE RICHARD SANDERS AND ORDER DENYING MOTION FOR RECUSAL

 

SANDERS, J.—I here respond to one of three motions for recusal in criminal appeals involving an employee of Snohomish County Prosecutor Janice Ellis who seeks my recusal from each case.  Although each motion was brought separately, all are based on the same nucleus of facts stemming from the movant’s public statement that he filed a complaint against your undersigned with the Washington State Commission on Judicial Conduct (Commission), and the inevitable answer filed in response to the Commission’s statement of charges as required by its procedural rules.  See CJCRP 20.

I.

The facts pertinent to these motions are completely separate from the underlying facts of each case, and indeed are inapposite to the merits of the criminal legal issues involved therein.  There is no claim by the movant that I have any knowledge much less predisposition to act in any particular manner on the merits of these cases.  As was made clear in another highly publicized decision of a recent motion for recusal, "The decision whether a judge’s impartiality can ‘reasonably be questioned’ is to be made in light of the facts as they existed, and not as they were surmised or reported."  Cheney v. U.S. District Court, 541 U.S. ---, 124 S. Ct. 1391, 1393, 158 L. Ed. 2d 225 (2004) (memorandum op. of Scalia, J.) (quoting Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S. Ct. 25, 147 L. Ed. 2d 1048 (2000) (memorandum op. of Rehnquist, C.J.)).

Recusal is inappropriate when sought as a device to shop for a judge more to one’s liking[1] absent adequate grounds for recusal under the Code of Judicial Conduct (CJC).  This would be unfair to the opposing party.  And where the claim is that there is judicial bias or prejudice against one lawyer in a large office, the managing attorney could use the claim to manipulate the complexion of the forum or panel by assigning that attorney responsibility in any case where the targeted judge might be perceived less inclined to rule favorably to the firm’s position.  In such a case, the most appropriate remedy is for the lawyer to withdraw from representation, rather the judge.  Accord Mann v. State, 154 Ga. App. 677, 678, 269 S.E.2d 863, 864 (1980) ("The solution to such a problem is that an attorney who fears that his client may suffer because of the judge’s prejudice against counsel should decline the employment or should withdraw from the representation as being in the best interest of the client."); see also infra at 8 n.5.[2]

Allegedly on March 18, 2003, the Commission received a complaint against me from an unidentified person or persons which ultimately led to a statement of charges filed by the Commission on April 5 of this year.  The statement of charges alleged violations of the CJC resulting from my 2003 tour of the McNeil Island Special Commitment Center.  As far as I know this tour had nothing to do with any party present here.

Four days after the Commission filed the statement of charges, the Everett Herald published an article stating, "[p]rosecutors in Snohomish and King counties confirmed . . . it was their complaints this week that landed state Supreme Court Justice Richard Sanders in hot water with Washington’s judicial watchdog agency."  Scott North, County initiated complaint against high court justice, Everett Herald, Apr. 9, 2004, reproduced at Mot. for Recusal, Ex. 2.  The movant employee in these recusal motions is quoted somewhat ambiguously:  "We were one [sic] of the people who brought it yes."  Id.  Prior to this article, I was completely unaware of the complainant(s)’ identity, nor does the quoted statement precisely state who from the Snohomish County Prosecutor’s Office actually made the complaint.[3]

Attorney Kurt M. Bulmer drafted and filed an answer on my behalf on April 28, 2004.  Because I was out of town at the time I did not have an opportunity to review the answer before filing.  In response to the Commission’s allegation that it initially received a complaint on March 18, 2003, the answer states as follows:

2.       Justice Sanders lacks sufficient information to form a belief as to the truth of the averment that a complaint was received by the Commission on March 18, 2003 and, therefore, it is denied.  It is alleged by Justice Sanders that any such complaint was motivated by the hopes of potential impact on Justice Sanders’ reelection efforts in 2004.^[[4]]

Answer, In re Hon. Richard B. Sanders, No. 4072-F-109 (Comm’n on Jud. Conduct) (filed Apr. 28, 2004), ¶ 2, available at http://www.cjc.state.wa.us [hereinafter "Answer"].  The last sentence quoted above, claims the movant, requires my recusal.

This court granted Mr. Barnes’ petition for review in April.  State v. Barnes, 151 Wn.2d 1008 (2004).  The State filed a motion seeking my recusal on May 11, 2004, citing CJC Canon 3(D)(1), which is the subject of this memorandum.

ii.

CJC Canon 3(D)(1) provides:

(1) Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge previously served as a lawyer or was a material witness in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or such lawyer has been a material witness concerning it;

(c) the judge knows that, individually or as a fiduciary, the judge or the judge’s spouse or member of the judge's family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or is an officer, director or trustee of a party or has any other interest that could be substantially affected by the outcome of the proceeding, unless there is a remittal of disqualification;

(d) the judge or the judge’s spouse or member of the judge’s family residing in the judge’s household, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is to the judge’s knowledge likely to be a material witness in the proceeding.

The existence or nonexistence of an appearance of partiality mandating a judge’s recusal is governed by an objective inquiry, namely whether an objective and disinterested observer who knows and understands the relevant facts would entertain a substantial doubt the judge in question can be impartial.  See Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995); see also United States v. Sellers, 566 F.2d 884, 887 (9th Cir. 1974).  Moreover there is a presumption that the challenged judge performs his or her functions properly without bias or prejudice.  Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 459 (1967); Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993).  As a result the party alleging bias or prejudice must provide evidence proving the judge’s actual or potential bias or prejudice.  State v. Post, 118 Wn.2d 596, 619 n.8, 826 P.2d 172, 837 P.2d 599 (1992); State v. Dominguez, 81 Wn. App. 325, 328-29, 914 P.2d 141 (1996).

Where a judge’s alleged partiality is based on one of the numbered subparagraphs of CJC Canon 3(D)(1), i.e., personal bias toward a party, personal knowledge of evidentiary facts, previous work on the matter as counsel, etc., recusal is mandatory; however where such alleged partiality is based on the general statement contained in Canon 3(D)(1), recusal is discretionary at most.  See State v. Carlson, 66 Wn. App. 909, 918, 833 P.2d 463 (1992) (Carlson II), review denied, 120 Wn.2d 1022 (1993) (discussed infra).  This discretion must be exercised consistent with the principles that (1) a judge’s duty to remain on a case where recusal is inappropriate is equal to his or her duty to recuse where necessary, Laird v. Tatum, 409 U.S. 824, 837, 93 S. Ct. 7, 34 L. Ed. 2d 50 (1972) (memorandum op. of Rehnquist, J.), and (2) the deleterious effect on the judiciary’s integrity if recusals frequently occurred on improper grounds, State v. Hunt, 147 Vt. 631, 632, 527 A.2d 223, 224 (1987) ("If judges are quick to recuse themselves on improper grounds, the frequency of such recusals would only serve to undermine public confidence in the impartiality of all judges.").

The mere filing of a judicial conduct complaint by an attorney does not ipso facto translate into actual or apparent bias toward the attorney’s client to mandate recusal.  See, e.g., Siegel v. State, 861 So.2d 90, 92 (Fla. Dist. Ct. App. 2003) (per curiam) (discussed infra); In re Conduct of Schenck (Schenck II), 318 Or. 402, 409-16, 870 P.2d 185, 194-95 (1994) (per curiam) (discussed infra); Ball v. Melsur Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993).[5]  Indeed, the movant rightfully concedes this point.  See Mot. for Recusal at 2.

Furthermore "[a]ntipathy towards a lawyer will not necessarily be considered by the courts as extending to the lawyer’s client, and where the antipathy is against the lawyer but not against the client personally, recusal will not be required."  Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.08 at 123 (3d ed. 2000).  Several cases from other jurisdictions illuminate this principle, holding a judge’s negative comments or actions toward counsel are insufficient to warrant recusal where such negativity does not translate into bias against the party.  In re Cooper, 821 F.2d 833, 843 (1st Cir. 1987) (multiple comments by judge, including that defense lawyer "may be a fit candidate for a perjury indictment" did not require recusal); In re Beard, 811 F.2d 818, 830 (4th Cir. 1987) (judge’s comment that a lawyer was a "wise-ass" and a "son-of-a-bitch" were inappropriate but insufficient to require recusal); Briggs v. Clinton County Bank & Trust Co., 452 N.E.2d 989, 1007-08 (Ind. Ct. App. 1983) (showing of strained relationship between judge and a party’s attorney is not grounds for disqualification without showing of personal prejudice against a party); Martin v. Beck, 112 Nev. 595, 915 P.2d 898, 899 (1996) (pursuit of perjury charges against lawyer by supreme court justice did not require the justice’s recusal from appeal where lawyer represented one of the parties).  As stated by the United States Court of Appeals for the Eighth Circuit:

Similarly, under 28 U.S.C. § 455(a) [federal corollary to Washington’s Canon 3(D)], which requires that a federal judge disqualify himself or herself "in any proceeding in which his [or her] impartiality might reasonably be questioned," a controversy between a trial judge and an attorney for parties to an action would not require disqualification of the judge in absence of showing of bias or personal prejudice to the parties.

Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir. 1993), cert. denied, 466 U.S. 972 (1984).  Gilbert affirmed the denial of a motion to recuse where the party seeking recusal could not demonstrate the district court judge’s antipathy toward the party’s former attorney translated into bias against the party of record.  Id.

Applying this standard to the case at bar the movant bears the burden to show the jurist cannot maintain impartiality or its appearance because one sentence included in the answer to the statement of charges referenced alleged political motives prompting a conduct complaint by an unidentified person.  In this regard Opinion 88-16 of the Washington Ethics Advisory Committee persuasive, if not dispositive.  There the Advisory Committee states "[a] judge is not prohibited from hearing cases where one of the parties is represented by an attorney that ran against the incumbent judge."  Wash. Ethics Advisory Comm., Op. 88-16 (Nov. 15, 1988).  This opinion rightly contemplates the oft highly adversarial and personal nature of political disputes and concludes they are not enough to warrant recusal absent additional evidence demonstrating the judge’s bias toward the party.  If a judge need not recuse against an actual political opponent, it follows axiomatically that less overt actions motivated by political concerns would certainly not justify recusal.  And similarly, pursuant to Ethics Opinion 88-16, the oft personal, public, and politicized statements by the victorious judicial candidate toward the losing judicial candidate does not compel recusal where the losing candidate subsequently appears as counsel before his or her former opponent.

The political desire of an attorney to see a judge lose his or her seat on the bench is understandable and anticipated in a state which elects its judges.  See Const. art. IV, §§ 3, 5, 29; RCW 2.06.070.  However this is simply insufficient to implicate bias against that attorney’s client.  More fundamentally, the movant has not averred one fact intimating this jurist’s ability to rule impartially in these criminal appeals has been compromised by speculation about his beliefs regarding the motives of a complainant.

III.

Nevertheless, the movant maintains the jurist cannot keep up the appearance of impartiality, relying exclusively on two cases from other jurisdictions, Schenck II, 870 P.2d 185, and Siegel, 861 So. 2d 90.  Neither case is binding, but both are easily distinguishable.

A detailed account of Schenck II is necessary to illustrate why reliance on it is misplaced.  Schenck II involved the Oregon Supreme Court’s review of a judicial discipline recommendation by that state’s Commission on Judicial Fitness and Disability (Oregon Judicial Commission).  Schenck II, 870 P.2d at 188.[6]  There one Ms. Hopkins had pleaded guilty to criminal charges resulting in the dependency proceedings of her children.  Id. at 190.  She violated her probation, resulting in a violation hearing before Judge Schenck, at which he recommended her parental rights be terminated.  Id. at 191.  Hopkins’ attorney then sought recusal of Judge Schenck from presiding over Hopkins’ hearing to resolve the dependency, which the judge initially denied as untimely.  Id.  When Hopkins’ attorney persisted on the matter, this time with the support of the State, the Judge agreed to hear the recusal motion on its merits the same day as the dependency adjudication hearing, all the while refusing counsel’s request to continue the adjudication hearing of Hopkins’ children’s dependency.  Id. at 191-92.

The attorney thereafter filed a complaint with the Oregon Judicial Commission, prompting Judge Schenck to lambast the attorney over the phone, going so far as to ask him, "‘Who in the hell made you God’s gift to the legal profession?’"  Id. at 192.  Judge Schenck then refused to comply with an order from the judicial district’s presiding judge mandating continuance of the dependency hearing until the recusal dispute was resolved by another judge.  Id.

Subsequently Judge Schenck wrote a letter to each member of the bar associations for two counties, "characterizing the [judicial conduct] complaint as ‘pathetic’ and ‘a petulant response.’"  Id.  Hopkins then sought a writ of mandamus from the Oregon Supreme Court, which that court granted not because recusal was required by the Oregon judicial canons, but rather because Judge Scheck did not argue the request was made in bad faith, a necessary statutory requisite to denying a motion for recusal.  See State ex rel. Hopkins v. Schenck, 313 Or. 529, 836 P.2d 721, 727 (1992) (Schenck I).

In the disciplinary case, however, the Oregon Supreme Court held Judge Schenck did not violate any judicial canons by refusing to grant Hopkins’ motion for recusal before the writ of mandamus issued.  Schenck II, 870 P.2d at 193-94.  The court did find ethical violations in other cases involving Judge Schenck stemming from the same tumultuous relationship between himself and Hopkins’ attorney, who was contemporaneously representing other clients.  After the attorney sought the judge’s recusal in other cases Judge Schenck derided the attorney in open court:

As far as your personal position with me, Mr. Anderson, I have told you before and I’ll tell you again here in open court, that we may dispute and we may dispute vociferously what law applies to a certain case, what procedure should be applied, and how that case should be handled.  And I may, at least outside this courtroom, very strongly read the riot act to you.  And that is not an indication that I cannot sit on your cases or anybody else's and be fair and impartial. You're going to—you’re going to have to be mature enough to take my responses to you, no matter how vociferously or energetically given, without reading into them any personality contest or other matter that would interfere with my ability to sit on cases that you present and be fair and impartial.

I will not allow you or anyone else, any attorney, to disrupt the administration of the court. I think you have in the past taken the proper procedures to challenge my rulings and you are entitled to challenge my rulings . . . in the proper manners, through the proper procedures, with the appellate courts, mandamus, or appellate actions, and I can—you know that’s fine, that’s part of the process.  That is part of the system in which we both work.  I have in this case no—no problems with regard to the Canons of Judicial Conduct.  I simply do not believe that I have, in any way, shape or form, or will in any way, shape or form, by denying your motion to disqualify, violate any Canon of Judicial Conduct.

Id. at 194 (emphasis added).  Holding the Judge violated ethical canons, the court followed the Oregon Judicial Commission’s view that the totality of the circumstances mandated recusal:

["]The cumulative effect of the complaint filed with the Commission, the harsh words [the Judge] had for attorney Anderson in their private conversation, and the Judge's affirmative effort to publicize both the complaint and his opinion of the complaint and of Mr. Anderson, was to create a reasonable basis for questioning [the Judge's] impartiality."

Id. at 195 (emphasis added) (quoting Oregon Judicial Commission recommendation).

Contrary to the movant’s assertion that Judge Schenck was required to recuse "‘where the judge takes affirmative action to make public the dispute between an attorney and himself, the balance tips heavily in favor of requiring recusal,’" Mot. for Recusal at 4 (quoting Schenck II, 870 P.2d at 195), the Oregon Supreme Court focused on the systemic and pervasive outlandish conduct by Judge Schenck to find ethical violations for denying recusal as evidenced by its focus on the "cumulative effect" of all of Judge Schenck’s actions.  Schenck II, 870 P.2d at 195.  But here the alleged "publicized" statement appeared in one sentence of a required filing with the Commission, not in an open courtroom as in Schenck II or a newspaper of general circulation.

The movant’s reliance on Siegel is equally unavailing.  Analogous to these cases, a criminal defendant there sought recusal of the presiding judge (Judge Alemán) because of an alleged conflict between the judge and his attorney.  Siegel, 861 So. 2d at 91.  Judge Alemán had recently been appointed to her seat from a prosecutorial position, during which the defendant’s attorneys had filed a bar complaint against her.  Id.  The defendant’s attorneys contacted the Governor’s office to protest Judge Alemán’s impending appointment, prompting the soon-to-be judicial officer to "file[] a lengthy response to the bar complaint, denying the attorneys’ allegations and denouncing the timing of the complaint on the eve of the expected announcement of judicial appointments."  Id. at 91.

But Siegel’s similarity to the instant cases ends there.  While the movant claims Judge Alemán’s denouncement is akin to paragraph two of the answer, the movant fails to mention the remainder of Judge Alemán’s actions, which are plainly non-existent here:  "[Judge Alemán] accused the attorneys of making untrue statements, under penalty of perjury, and concluded her remarks with a quotation by French poet and essayist Charles Peguy:  ‘He who does not bellow the truth when he knows the truth makes himself the accomplice of liars and forgers.’"  Id. at 91-92 (emphasis added).  The Florida District Court of Appeal held recusal was required because "[t]he sworn allegations [in support of recusal] . . . refer to responses of the trial judge (while a prosecutor) essentially characterizing petitioner’s attorneys as liars."  Id. at 93.  Suffice to say the movant was never accused of perjury, lying, or forgery.  The jurist’s attorney merely characterized the complaint (in defense) as politically motivated.  Again, this is simply insufficient to warrant recusal.  Wash. Ethics Advisory Comm., Op. 88-16.[7]

Iv.

Finally, I note the movant misstates[8] the fundamental distinction between trial and appellate judges.  In State v. Carlson, 61 Wn. App. 865, 880, 812 P.2d 536 (1991) (Carlson I), the Court of Appeals reversed a trial court’s order directing a new trial of a criminal defendant accused of rape and child molestation.  On reconsideration the defendant sought to disqualify a member of the panel, the Honorable Susan R. Agid (who had authored the prior opinion), based on an alleged bias stemming from her participation in a program aimed at preparing sexual abuse victims for in-court testimony and the participation of King County Prosecutor Norm Maleng in her reelection campaign in 1991.  Carlson II, 66 Wn. App. at 912.  Rejecting the defendant’s motion, the court noted the inherent and "vast" difference between the role of an appellate judge in contradistinction to his or her trial counterpart:

Moreover, we note that there is a vast difference between the role of a trial judge and the role of an appellate judge insofar as the possibility of a personal relationship such as a campaign chairmanship improperly influencing a judge.  That difference in turn is relevant to whether a reasonable person would perceive an appearance of impropriety.  Notably there is no appellate equivalent of RCW 4.12.050^[[9]] permitting a litigant to require disqualification of a trial judge upon an assertion of bias or prejudice without stating any factual basis therefor.  At least two policy considerations are significant in this context.  First, in the appellate system no one judge controls a 3-judge panel.  When, as in this case, the panel is unanimous, a litigant is protected by the fact that two other judges have agreed with the decision.  The second is that decisions in the Court of Appeals almost exclusively involve legal issues with very little room for the exercise of discretion.  Appellate judges are required to issue written opinions which are subject to objective examination and review.  In contrast, there is vast discretion vested in a trial judge and often no reasons need be given for the exercise of such discretion.  Accordingly, it might often be difficult to tell whether any improper motive entered into a trial court’s decision.

Id. at 919-20.  These considerations apply even more forcefully to our nine member Supreme Court.

V.

The most that can be said about the allegation contained in the answer filed in response to the Commission’s charges is that it questions the political motives of an unidentified complainant(s).  There is no allegation whatsoever respecting the effect this alleged "bias" has on a named party in these criminal appeals.  As such there is no basis for my recusal, and I believe the proper approach to this motion is to continue fulfilling my duties as state Supreme Court justice, remain impartial toward the parties before me, and apply the law accordingly.

Now, therefore, it is hereby

ORDERED:

The motion for recusal is denied.

DATED at Olympia, Washington, this 20th day of May 2004.