Affidavits of Prejudice & SSHB 2557

By DUI Defense Attorney Patricia Fulton
© 2008 Law Offices of Geoffrey Burg, LLC

There are many reasons to file an affidavit of prejudice and in DUI cases they are commonly used to avoid a judge who has ruled unfavorably on a suppression issue or who is likely to impose excessive conditions of release.

In district court criminal matters, affidavits of prejudice are governed by RCW 3.34.110 and CrRLJ 8.9. CrRLJ 8.9 allows for one affidavit of prejudice to be filed if the affidavited judge has not yet made a discretionary ruling on the case.

New legislation effective July 1, 2008, amends RCW 3.34.110 and clarifies what is considered a discretionary ruling.

Prior to SSHB 2557, discretionary rulings were not defined by statute and, if the volume of case law is any indication, the question of what is and is not considered a discretionary ruling has consistently troubled the courts.

As of July 1, 2008, the following are not discretionary rulings and would not preclude the filing of an affidavit of prejudice:

  1. The arrangement of the calendar;
  2. The setting of an action, motion, or proceeding for hearing or trial;
  3. The arraignment of the accused;
  4. The setting of bail and initially setting conditions of release.

It appears that this legislation may change the landscape for affidavits of prejudice in some courts. For example, the judges in King County's Northeast District Court have recently implemented a new policy based on SSHB 2557.

Under this new policy, an affidavited judge will still handle arraignment, set pre-trial conditions, set trial dates and set the jury calendar. The affidavited judge would not handle motions, trial, sentencing or reviews. It is possible that other judges will interpret the changes of SSHB 2557 to allow for such "non-discretionary" actions even if properly affidavited.

However, this policy is improper under both current law and SSHB 2557 as it confuses the conditions precedent for a timely affidavit (no discretionary ruling made by the judge) and the effect of a timely filed affidavit. Specifically, that when an affidavit of prejudice is timely filed the law deems that prejudice exists and the judge to whom it is directed no longer has authority to act in the matter. (1)

This means that while an affidavit of prejudice can timely be filed after your client has been arraigned and conditions of release imposed - an affidavited judge has no authority to do anything further once the affidavit is accepted.

1 - State v. Dixon, 74 Wn. 2d 700 (1968); Harbor Enters Inc. v. Gudjonsson, 116 Wn. 2d 283 (1991); State v. French, 88 Wn. App. 586 (1997).

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