Let’s face it, courts are busy places, sometimes chaotic, and usually short-staffed.   Defendants, victims, witnesses, and jurors all wait for their cases to be heard.  And the situation usually isn’t improved when a prosecuting attorney flat out refuses to work with a certain judge.  This was the case with Yakima County Prosecuting Attorney Jim Hagarty as announced last week in the Yakima-Herald. Jim Hagarty wrote in a letter that Judge Ralph Thompson’s decisions created a question of whether the state would receive “a fair opportunity when litigating cases in his courtroom.”   Jim Hagarty announced that he was asking to have this judge prohibited from hearing any case in which the prosecutor’s office was a party.  Under court rules, this practice is called an “affidavit of prejudice”, and can only be done to a single judge before he or she has made a decision in the case.  Now the question is raised: Since the voters elected Judge Ralph Thompson to hear cases, is it really proper for the elected prosecutor to reject the will of the voters?  Is it fair for Jim Hagarty have Judge Thompson’s work load shifted over to the other already busy judges?  Seattle University law professor John Strait, an expert in legal ethics, addressed the issue.  He indicated that he thought such actions [such as the step Jim Hagarty took] inappropriately deprives voters of a judge they elected to serve them.   He explained “I think that raises separation of powers issues. I don’t think the prosecution should get to trump the elected judiciary’s function in that manner….”

The article in the Yakima-Herald paraphrases the problem that Jim Hagarty had with Judge Ralph Thompson’s decisions.  I expected that the issues would be some pretty significant disagreements, and instead the disputes seem pretty petty.  The number one reason for Hagarty’s decision was an incident last January where the judge found a driver not to have committed a traffic infraction.  The Trooper complained to the prosecutor that the decision left him “dumbfounded.”   The second reason was that Judge Ralph Thompson would not agree to a request for a continuance of a case.  Prosecuting Attorney Jim Hagarty was just appointed to the position in January.  Maybe when his deputies complained to him, he should have told them to develop a thicker skin about such things.  Additionally, it seems as though the prosecutors should have considered filing an appeal or a writ of review.  Jim Hagarty complains that the judge has a lack of legal knowledge. It does seem that the bulk of the Judge Thompson’s experience is in civil work.  However, if this is the case the proper recourse is for the prosecutors to educate the court on the law through the drafting of legal memoranda and citing to legal precedent.  Too often prosecutors, and defense lawyers for that matter, fall in the rut of relying on canned briefs for routine matters, and are unwilling to hit the law books to research a new issue.

It will be interesting to see how the other judges cope with the increased workload.  I just read in the Yakima-Herald last month that Yakima County had the highest homicide rate in over 20 years.  See article.  It seems like the courts will be pretty busy.   You have to wonder why with his hands full with homicide cases, that Jim Hagarty would get involved in some snit his deputies are having with judges in traffic court.  Jim Hagarty is not the first prosecutor to attempt to prohibit a Judge from hearing criminal cases.  In 1984, Spokane County Prosecutor Donald Brockett grew frustrated with the adverse pre-trial rulings of Judge William Luscher in a murder case.  When Judge Luscher ultimately acquitted the defendant, Don Brockett resorted to the same steps Hagarty did.  Brockett eventually backed down after a newspaper editorial questioned the practice.

King County Prosecuting Attorney Norm Maleng never filed such affidavits of prejudice reasoning that it was the will of the voters to put or to keep the judge into office, and it would be wrong to override the will of the electorate.  I understand that the Attorney General’s office has the same view.  Maleng’s successor Dan Satterberg has a different view and has challenged Judges Peter Nault, and Victoria Seitz.  Additionally, the prosecutors for the City of Bellevue similarly challenged Judge Frank LaSalata for ruling against them and not imposing the fees they requested.  For an in depth discussion on this issue in King County, see an article by attorney Kennet Phillipson posted here.  Closer to home, Okanogan Prosecuting Attorney Karl Sloan has raised eyebrows with the frequency with which he has filed affidavits of prejudice against Judge Jack Burchard.  Judge Burchard is the only elected superior court judge in Okanogan County.  I have notice in my practice there that this issue has slowed down the criminal courts somewhat as there is sometimes a delay in waiting for an out-of-town judge to hear cases. It remains to be seen if this practice of Karl Sloan’s is a temporary thing or if it will continue.  If it continues, it will be interesting to see how the voters react to their elected judge being barred from many of the cases in Okanogan County.

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