Judicial Disqualification & Recusal in Washington
Pursuant to Wash. Rev. Code §§4.12.040 and 4.12.050, a party may obtain a change of judge as a matter of right, as long as the procedural requirements of §4.12.050 are satisfied. These requirements include filing a motion, supported by an “affidavit of prejudice,” alleging that the judge before whom the action is pending is biased against that party or its counsel, and that the party feels it cannot have a fair trial before that judge. The mere filing of a motion and affidavit does not satisfy the statutory requirement that the matter be called to the judge’s attention.
The statute speaks in terms of “prejudice,” but §4.12.050 was intended to strip from the challenged judge all discretion in determining whether he is actually prejudiced. Thus, a litigant who exercises the statutory right afforded by §4.12.050 may obtain a change of judge without regard to whether the bias alleged is real or imagined; and, indeed, without making any showing of bias at all. Once the requisite motion and affidavit have been seasonably filed, prejudice is deemed established, and the judge must step down even though he may strongly believe that the charge is unwarranted. But if the §4.12.050 motion and affidavit are untimely, the moving party must make an affirmative demonstration of judicial bias. Section 4.12.050, moreover, permits a party to effect a change as a matter of right only once in any one case.
There is some precedent for the proposition that the Code of Judicial Conduct has the force of law in Washington. According to Canon 3D of the Code, a party may seek a judge’s disqualification whenever the judge has a bias against a party, or the judge’s impartiality may reasonably be questioned. Washington has also adopted discrete court rules that control the subject of appellate court disqualification; as well as disqualification in criminal courts, and courts of limited jurisdiction. But judicial disqualification motions in Washington are generally governed, in the first instance, by Wash. Rev. Code 4.12.040 and 4.12.050, the latter of which is a peremptory disqualification provision. See Chapter 27.
Washington courts have also long adhered to the “appearance-of-fairness” doctrine, which seeks to prevent the problem of a biased or potentially interested judge. Pursuant to this doctrine, a judicial proceeding is deemed to be valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair hearing. To invoke the appearance-of-fairness doctrine, however, the moving party must adduce evidence of actual or potential bias on the part of the challenged judge in a timely manner.
To view Canon 2 of Washington Code of Judicial Conduct (Rule 2.11 is the disqualification provision) click here
2. 2. To review a 2014 article about a Benton County Superior Court judge who refused to recuse herself from a murder trial click here. To review a 2013 Star Tribune article about a Washington state court judge who refused to recuse himself from a dispute involving a florist who refused to provide flowers for a gay wedding click here
3. 3. For an overview of recusal and disqualification law in Washington which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.17 and 28.49 (“Washington”) http://www.banksandjordan.com/catalog.html . See also Ninth Circuit Justice Alex Kozinski’s concurring opinion in a case in which the State of Washington was the lead defendant , citing R. Flamm, Judicial Disqualification (1996). To locate Washington libraries that have the current edition of Judicial Disqualification click here