Washington DUI Blog

Kennet Phillipson’s in-depth article about the legal and political implications of the current practice of prosecutors to “blanket affidavit” targeted judges in DUI cases was published in Defense Magazine.  The article follows below.

Eliminating Judges with Blanket Affidavits by Prosecutors

Press coverage isn’t new to our profession. Too often we find our clients’ names splashed across the newsprint, garnering attention and outrage for their alleged crimes. But it is unusual to see column inches and airtime devoted to criminal procedure, the nuts and bolts of what we do every day.

Just such an unusual occurrence happened recently in the Puget Sound. The Seattle Times, NPR and other news outlets picked up on a story about the King County Prosecutor’s Office exercising an affidavit of prejudice against King County District Court Judge Peter Nault. The articles largely reported the facts: the King County Prosecutor’s Office, in all newly filed cases, exercised a blanket affidavit against Judge Nault in response to his often unfavorable rulings. Presiding Judge Barbara Linde then transferred Judge Nault from a criminal calendar to a civil calendar, and from the Redmond courthouse to Seattle. This is where the press coverage ended.

As they often do, the media missed the larger story. They failed to mention the fundamental change in policy within the prosecutor’s office which precipitated the affidaviting of Judge Nault. Of even greater importance and absent from the public discussion was the due process concerns raised by the blanket affidavit, the judicial deference afforded the prosecutor’s decision, the undue influence the affidavit created, as well as the potential voter disenfranchisement produced by Judge Nault’s transfer out of his electoral district.

Don’t think this is an isolated incident. More and more often lately, prosecutors are making the decision to file blanket affidavits. The City of Bellevue effectively affidavited Judge Frank LaSalata after he repeatedly ruled against them and would not impose the exorbitant fees that the City demanded. And contrary to claims the King County Prosecutors Office made in the Seattle Times that the blanket affidavit filed against Judge Nault was “the first time [the prosecutor had] ever done this,” the Prosecutor’s Office in fact filed a blanket affidavit of prejudice in January of 2008 against Judge Victoria Seitz. In that instance, just as happened with Judge Nault, the presiding judge transferred Judge Seitz out of the courthouse to a largely civil calendar.

Being both citizens and defense attorneys, this deserves our attention, discussion and outrage. There is no group with more of a vested interest or with more ability to organize and speak out on this topic than us. So let’s start the discussion here. Why is this blanket affidavit important? What significance does Judge Nault’s transfer have? Why should we care?

1. Voters Disenfranchisement
In King County, district court judges are elected from specific electoral districts rather than county-wide. Judges must reside within these electoral districts and only residents from that district are allowed to vote in those judicial races. The idea behind such a system was that local residents were to have a say in determining who their local judge would be and each elected judge would have large measure of autonomy. It was also a way to avoid the domination of judicial elections by Seattleite judges.

This theory transformed over the years as district court branches were merged and power was consolidated in the position of the presiding judge. Now, the presiding judge has the power to change judicial assignments, move judges around, and determine their calendar assignments.1 But the electoral system remains in place. What has been created then is a structure where citizens vote for a district court judge expecting that by exercising their right to vote, they are having a meaningful say in who will serve them on the bench. This is a right guaranteed under state and county law.2 However, the reality is much different.

Voters effectively have no say in who will serve on the district court bench in their district. That decision is entirely in the hands of the presiding judge, who can exercise his or her will without the consideration of the voters’ expressed desires. In that regard, a citizen’s vote isn’t even advisory.

We should be troubled that one’s vote can be de facto set aside and the voters’ will ignored in favor of the preferences of a single “unelected” person, in the specter of the presiding judge.3 Have the lessons in Baker v. Carr and its progeny already been forgotten?4 One person, one vote. In those redistricting cases, it was held as unconstitutional that a single vote had less sway than the same vote cast in another district. But here, we are not talking about simply a vote having less sway. We are talking about a vote having no say.

2. Violations of Procedural Due Process
The transfer of Judge Nault in the face of a blanket affidavit violated the due process rights of many defendants. Procedural due process of law is guaranteed to anyone being denied life, liberty or property, and dictates the opportunity and method afforded an individual when being denied those rights. At issue here is unequal application of affidavit rule, thereby denying defendants the same rights afforded the State. Specifically, in this instance the prosecutor was, and is, able to either 1) exercise more than one affidavit, or 2) effectively use their affidavit power against a judge in cases where the rule prohibits its use.

Taking up the first concern, many city prosecutors have the power to effectively exercise an affidavit of prejudice more than once in a specific case contrary to CrRLJ 8.9.5 Many cities contract with King County to provide judicial services. In the negotiations of those contracts, the cities often make ratification contingent upon the guarantee that they will not be assigned to appear before a specific judge. This effectively operates like an affidavit of prejudice. But of course, the city prosecutor retains their right to affidavit under the court rule.

This is not an isolated problem. The City of Redmond has written into their contract with the County that Judge Nault would not be assigned to handle their calendars. Indeed the City of Bellevue recently complained to the County about having Judge Frank LaSalata assigned to their calendar in Bellevue District Court. Simply through negotiations with the County and the presiding judge, they affected the transfer of Judge LaSalata out of Bellevue (and out of his electoral district) to Seattle. While these cities are effectively affidaviting these judges, they still retain the right to file an affidavit of prejudice in each and every case. They are getting two bites at the apple, while our clients are limited to one such “bite.”

The second due process concern arises in all of those cases where the prosecutor was precluded from filing an affidavit of prejudice. Those cases include all the cases set for review and all of the cases previously filed and set in front of Judge Nault. The court rule precludes the State from being able to exercise an affidavit of prejudice in those instances. However, they effectively did exercise an affidavit of prejudice anyway, by forcing the transfer of Judge Nault, thereby removing him from hearing any of those cases.

Put more simply, it is the unequal application of the court rule. Had the prosecutor filed an affidavit of prejudice in these cases, the affidavit would have been summarily denied as untimely filed, just as the defense bar’s affidavits are so often denied. However, the prosecutor’s office was able to avoid the rule and guarantee the same outcome by having Judge Nault transferred.

These “pocket affidavits” are troublesome to a defendant’s due process rights because they strike right at the heart of due process, the idea that they are getting a fair hearing. The court rules, designed with an eye toward ensuring a fair hearing, are getting applied with unequal scrutiny to the defense and the prosecutor. The end result has a very real impact upon the outcomes for our clients.

3. Judicial Deference to Prosecutorial Decisions
As defense lawyers, we all share the implicit concern that the judiciary is bent in favor of the prosecution. The events surrounding the affidaviting of judges in King County bring this worry to the fore; the judiciary shows great deference to the decisions and policies of the prosecutor’s office while disregarding those of the defense.

Compare the presiding judge’s response to the affidavits of defense attorneys to that of the prosecutor’s office. The majority of the private defense bar in King County exercises affidavits of prejudice against Judge Linda Jacke, a colleague of Judge Nault. There has never been any discussion about transferring her out of the courthouse or removing her from sitting on criminal calendars as a response to the defense affidavits. In the same courthouse, the prosecutor affidavited Judge Nault and the presiding judge promptly transferred him out of his electoral district.

Some have defended the transfer of Judge Nault, citing the efficiency and economy of court administration as justification. Even if such an assertion is taken at face value, the concerns about efficiency, while not the same in degree, are the same in substance. So that justification does not negate the point that the prosecutor’s decision to affidavit Judge Nault was promptly acted upon by the presiding judge, while similar actions undertaken by the defense bar are summarily ignored. (To be clear, I am not arguing that Judge Jacke should be transferred just as Judge Nault was. I am making no normative argument about whether the transferring of judges in response to affidavits should be done. Such is a topic left for further debate.)

What is obvious is that the prosecutor’s office has great influence in the administration of the judicial system. There are perhaps many reasons why: they can speak with one voice (as opposed to the disparate voices from the defense), they deal with the day-to-day concerns of judicial administration of which the defense bar plays little part, they have the ability to garner media attention, and the prosecutor, as a county-wide elected official, speaks with some authority.

But what is also clear is that this influence does not square with the ideals and goals of the adversary system that we hold to so dearly. If judges are to be impartial arbiters (or, more pragmatically, have the appearance of impartiality), then the influence granted to prosecutorial decisions is entirely inappropriate. It is quite troubling in individual cases where our clients are adversely affected by the transfer of judges. But it is equally reprehensible in the larger sense, in that it erodes the public’s confidence in the independence and objectiveness of the judiciary as a whole.

4. Electoral Influence
Perhaps most troubling in all of this is the power it gives to the prosecutor in possibly influencing the next judicial election, both for the judge subject to the affidavit and for all of the other district court judges. The prosecutor, by exercising a blanket affidavit, is essentially stripping a judge of his jurisdiction to handle any criminal cases. For most district court judges, this is the majority of their case load. So a blanket affidavit hobbles a judge’s ability to perform the duties which he was elected to perform.

At the next election then, this can be a real problem for a sitting judge. First, the affidavit itself, as a manifestation of the prosecutor’s unfavorable judgment about that judge, makes him or her more vulnerable to an election challenge. But more importantly, once an affidavited judge has drawn a challenger, the fact that he or she is necessarily limited in what types of cases he or she can hear gives the challenger a rhetorical weapon to use in the campaign.  Thirdly, as we have seen, the blanket affidavit can attract negative press attention which is especially harmful given the limited amount of media attention to judicial races.

Judges, as elected officials, are aware of this spiral. Every 4 years they face the possibility of an expensive re-election race, funded largely out of their own pockets. So they do their best to avoid having a challenger. If a blanket affidavit coming from the prosecutor makes them more vulnerable, you can bet they will do their best to avoid the blanket affidavit. Essentially, the threat of a blanket affidavit creates a chilling effect on judges who are pressured to conform lest they also be subject to an affidavit.

Are we ever going to get a sitting judge to admit that their decisions and rulings are influenced by the threat of a blanket affidavit? Probably not. But I can guarantee that as elections approach it holds a prominent place in their thinking. For some, the threat of affidavit might overtly manifest itself in their opinions, but my guess is that for most judges, the pressure is more subtle. They would like to think that their decisions are not influenced by such things, but subconsciously, it affects outcomes on the margin. And those margins often include our clients’ liberty.

It is in this context that the affidavit of prejudice in the hands of a prosecutor becomes an electoral weapon rather than a procedural tool. It is way for the prosecutor’s office to subtly influence who sits on the bench and ensure that the judges who are in any way favorable to the defense are pushed out, removed not just from hearing criminal cases, but removed altogether. Moreover, it stands as reminder to those sitting on the bench that to cross the prosecutor is to weaken their chances at reelection.

Returning to the larger theme, most attorneys in the defense bar would agree that the prosecutors already have too much influence on the bench. The majority of judges were prosecutors prior to being elected to the bench, and their “crime and punishment” thinking can be seen in courtrooms across the State every day. It is in this frame of reference that we have to view the use of blanket affidavits, because they are being used to push the judiciary further in that direction.

What is newsworthy about the affidaviting of Judge Nault, and what attracted the ire of the defense bar, is that Judge Nault is one of the few jurists who doesn’t toe the prosecutor’s line, and he was effectively sanctioned for it. These are independently elected judges, but the prosecutor (with the help of the presiding judge) has found a way to make them accountable not to the voters, but rather to the Prosecutor’s Office. Troubling indeed.

It should be said that the use of the blanket affidavit by the King County Prosecutor’s Office is a fundamental shift in policy. Under Norm Maleng, the late King County Prosecutor, the Prosecutor’s Office did not affidavit judges. Maleng’s reasoning was grounded in the idea that his “clients,” the voters and citizens, were the ones who elected the judges. Therefore, he should not abrogate the voters’ decision by affidaviting those elected judges. Under this same reasoning, the Washington State Attorney General’s Office refrains from affidaviting judges as well.

It is only under the leadership of newly-elected prosecutor Dan Satterberg that the Prosecutor’s Office has authorized the use of blanket affidavits. Satterberg has yet to elucidate the reasoning behind this shift, but one thing is for sure, the policy has clearly gained significant traction within the Office. They have used the blanket affidavit twice within an 8 month time period, against Judge Nault and Judge Seitz. If twice can be considered a trend, then the use of the blanket affidavit in King County might jut become routine. With the power it gives to prosecutors, other counties may not be too far behind.

As defense attorneys, most of us have a sense of righteous indignation about our work. We already face an uphill battle in representing the accused. The facts are often against us. We deal with prosecutors that are often inflexible and unreasonable. Our job is to convince juries that are at best unsympathetic and at worst, biased and prejudiced. The judiciary is the one actor in our legal system that is held out to be neutral. But the prosecutor, in exercising a blanket affidavit, is challenging that neutrality. It is something we should be indignant about in every instance that it happens. Just perhaps, that indignation will spur us to action to try to change the policies that gave rise to the problem.