State v. Dixon, 40581
| Decision Date | 22 October 1968 |
| Docket Number | No. 40581,40581 |
| Citation | 74 Wn.2d 700,446 P.2d 329 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Aaron DIXON, Petitioner, William J. Wilkins, Judge of the Superior Court for King County, Respondent. |
William L. Dwyer, Seattle, for petitioner.
Charles O. Carroll, Pros. Atty., Seattle, Paul M. Acheson, William L. Dowell, Deputy Pros. Attys., for respondent.
On July 30, 1968, petitioner was charged by information in the Superior Court for King County, State of Washington, with the crime of grand larceny. Bail was fixed and on August 8, 1968, petitioner was arraigned and entered a plea of not guilty. Thereafter, on September 4, 1968, petitioner served and filed a motion to dismiss and a motion to suppress certain evidence. Both motions were predicated upon constitutional grounds. At the same time, petitioner noted the motions for hearing on the merits for October 9, 1968. The motions were accordingly set on the motion calendar for the noted date.
On September 6, 1968, the state served and filed a motion to renote petitioner's motions to dismiss and suppress for hearing on the merits on September 20, 1968. This motion was noted by the state for hearing on September 13, 1968.
The state's motion to renote came on for hearing on the motion calendar on the scheduled date. The superior court judge assigned to hear the motion calendar during the month of September 1 heard the arguments of the respective parties concerning the matter of resetting petitioner's motions and thereafter by order granted the state's motion to the extent of resetting petitioner's motions on the motion calendar for hearing on September 27, 1968.
On September 26, 1968, petitioner served a motion and affidavit of prejudice against the superior court judge assigned to the motion calendar for September. This affidavit was regularly filed on September 27, 1968, and assigned to the motion calendar judge for disposition. The state challenged the timeliness of the motion and affidavit of prejudice. The motion calendar judge sustained the state's challenge. This decision was based upon the motion calendar judge's determination that his ruling on the state's motion to renote petitioner's motions to dismiss and suppress for hearing constituted a ruling invoking the discretion of the hearing judge, thus precluding a subsequent affidavit of prejudice under the provisions of RCW 4.12.050.
Petitioner was afforded time by the motion calendar judge and forthwith petitioned this court for a writ prohibiting the September motion calendar judge from hearing his motions to dismiss and suppress on the merits.
We grant the writ.
The pertinent portions of RCW 4.12.040 and 4.12.050 provide:
No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. RCW 4.12.040.
Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: Provided, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case * * * of the hearing of which the party making the affidavit has been given notice, and before the judge presiding had made any order or ruling involving discretion, But the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail, shall not be construed as a ruling or order involving discretion within the meaning of this proviso; * * *. RCW 4.12.050. (Italics ours.)
Under these statutes and under our decisions a party litigant is entitled, as a matter of right, to a change of judges upon the timely filing of a motion and affidavit of prejudice against a judge about to hear his cause or any substantial portion thereof on the merits. Such a motion and affidavit seasonably filed presents no question of fact or discretion. Prejudice is deemed to be established by the affidavit and the...
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State v. Lile
...continuing the hearing beyond the statutory deadline. Id. at 131, 258 P.3d 9.¶ 17 By contrast, Lile relies on State v. Dixon, 74 Wash.2d 700, 703, 446 P.2d 329 (1968), arguing that it is the closest case factually to his. He argues that Judge Uhrig's decision was not discretionary, because ......
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...to proceed further into the merits of the action. LaMon v. Butler, 112 Wash.2d 193, 201-02, 770 P.2d 1027 (1989) (quoting Dixon, 74 Wash.2d at 702, 446 P.2d 329), cert. denied, --- U.S. ----, 110 S.Ct. 61, 107 L.Ed.2d 29. Examples of rulings that involve the exercise of the trial court's di......
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State v. Lile
...and functions of the court,"7 and therefore involved discretion. 122 Wash.2d at 603, 859 P.2d 1231.¶ 30 Lile argues State v. Dixon , 74 Wash.2d 700, 446 P.2d 329 (1968), rather than Parra, Dennison, and Espinoza , controls. In Dixon , we held that it would be "manifestly unfair" to require ......
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...now a notice of disqualification, against a judge about to hear his cause on the merits. RCW 4.12.040, .050; State v. Dixon , 74 Wash.2d 700, 702, 446 P.2d 329 (1968). A party holds the right to one change of a judge without inquiry into the reasons for the change. Public Utility District N......