When in Doubt – Nuke!

By Brett Purtzer; June 1999

     By statute any party has the absolute right to disqualify a judge that the party does not believe  can provide a fair trial.  The statute, RCW 4.12.050, provides the relevant language.  The procedure is commonly referred to as filing an “affidavit of prejudice.”

     Circumstances may arise, however, that test the applicability of this statute in criminal cases because of the unclear definition of  the statutes use of the phrase “discretionary ruling.”  Recently, I was confronted with this statute when I attempted to file an affidavit of prejudice against a judge who had earlier approved an agreed order of continuance.  When I filed the affidavit, the state objected arguing that the previously entered “agreed order” was the type of discretionary ruling that made the affidavit of prejudice untimely.   The court agreed with the state and denied the affidavit stating that because the magic words “stipulated order of continuance,” as opposed to “agreed order of continuance,” were not used, his actions in signing the “agreed order” amounted to a discretionary act.  After filing an emergency motion before the court of appeals, the court of appeals set this for hearing, whereupon the appellate court affirmed the trial court.  The reasoning it used, however, was inconsistent with the case law that addressed affidavits of prejudice and agreed continuance orders, albeit in civil cases.  In pertinent part, the Appellate Court differentiated the Superior Court's actions in granting an agreed order in a civil case from that in a criminal case:

     In criminal cases, the trial court bears the ultimate responsibility to ensure the defendant a trial in accordance with the speedy trial rules.  CrR3.3(a).  Thus, even if the parties have agreed to a continuance, the court must exercise discretion in approving or rejecting the agreement.  See CrR 3.3(h)(1); and State v. Dennison, 115 Wn.2d at 620, n.10. 

     Although the Appellate Court’s reasoning was different than that of the trial court, the lesson learned is that the only way to make certain the affidavit of prejudice is timely is to file it before the judge you are seeking to disqualify has done anything on the file even if you have agreed or “stipulated” orders to present.    Although the statute’s exceptions, such as setting bail, appear to invoke more discretion than the ministerial act of signing an agreed order of continuance, there is no need to push the envelope to learn what constitutes a “discretionary ruling” when filing an affidavit of prejudice.