State v. Spokane Cnty. Dist. Court

• Citation: 491 P.3d 119
• Decision Date: 15 July 2021
• Docket Number: No. 98719-0,98719-0
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, ex rel. Lawrence H. Haskell, Respondent, v. SPOKANE COUNTY DISTRICT COURT, Judge Debra R. Hayes, Defendants, George E. Taylor, Petitioner.

491 P.3d 119

STATE of Washington, ex rel. Lawrence H. Haskell, Respondent,

v. SPOKANE COUNTY DISTRICT COURT, Judge Debra R. Hayes, Defendants,George E. Taylor, Petitioner.

No. 98719-0

Supreme Court of Washington, En Banc.

Filed July 15, 2021

Alana Leigh Brown, Brown Legal, PLLC, 608 W. 2nd Ave. Ste. 203, Spokane, WA, 99201-4425, Todd Maybrown, Allen Hansen Maybrown & Offenbecher, PS, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Petitioner.

Stephanie Jane Richards, Attorney at Law, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Lisa Nowlin, ACLU of Washington, P.O. Box 2728, Seattle, WA, 98111-2728, Matthew Thomas Crossman, Attorney at Law, 2021 7th Ave., Seattle, WA, 98121-2601, for Amicus Curiae on behalf of American Civil Liberties Union of Washington.

Sarah Ann Alvarez, Attorney at Law, 1430 Willamette St. # 359, Eugene, OR, 97401, for Amicus Curiae on behalf of Civil Liberties Defense Center.

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, Ralph Hurvitz, Attorney at Law, P.O. Box 25642, Seattle, WA, 98165-1142, for Amicus Curiae on behalf of Seattle Chapter of the National Lawyers Guild.

Alexander Ian Marquardt, Attorney at Law, 1824 Blake St., Berkeley, CA, 94703-1904, for Amicus Curiae on behalf of Law Professors.

Owens, J.

¶1 Reverend George Taylor has long been a climate activist. Throughout the years he has fought climate change by protesting, contacting legislative officials, and utilizing the initiative process. He is particularly concerned with coal and oil trains, and the dangers they present to public safety and the environment. Rev. Taylor has made many attempts to mitigate the risks of coal and oil trains passing through Spokane. After repeated efforts without effect, he organized a peaceful protest on Burlington Northern Santa Fe (BNSF Railway) railroad tracks. As a result, Rev. Taylor was charged with criminal trespass in the second degree and unlawful obstruction of a train. In response, he raised the necessity defense.

¶2 Rev. Taylor believes his actions were necessary to prevent the imminent harms of climate change and train derailment. Whether the necessity defense is ultimately available to him depends on when a defendant has demonstrated that there are no reasonable legal alternatives to violating the law.

¶3 This case comes before the court due to a conflict between Division Three and Division One of the Court of Appeals in State v. Ward , 8 Wash. App. 2d 365, 438 P.3d 588, review denied , 193 Wash.2d 1031, 447 P.3d 161 (2019). Division Three issued a split decision affirming the superior court, holding that Rev. Taylor could not present the necessity defense because "[t]here are always reasonable legal alternatives to disobeying constitutional laws." State ex rel. Haskell v. Spokane County Dist. Court , 13 Wash. App. 2d 573, 586, 465 P.3d 343 (2020). While there are always alternatives in the abstract, an alternative that has repeatedly failed when attempted is not a reasonable alternative. Because Rev. Taylor raises an issue of fact whether his actions were reasonable under the necessity defense, given his previous ineffective efforts to exercise legal alternatives, we reverse on this issue.

¶4 Additionally, this case asks whether granting an ex parte petition for writ of review under RCW 7.16.040 is a discretionary decision under RCW 4.12.050. Here, the plain language of the statute and our previous decisions regarding RCW 4.12.050 demonstrate that granting the writ under RCW 7.16.040 is discretionary, making Rev. Taylor's notice of disqualification untimely.

FACTS

¶5 On September 29, 2016, Rev. Taylor safely engaged in civil disobedience by protesting on BNSF Railway property. Rev. Taylor was warned by law enforcement that he would face arrest if he did not leave. Rev. Taylor did not leave and was peacefully arrested. The State charged him with misdemeanors: RCW 9A.52.080 (criminal trespass) and RCW 81.48.020 (unlawful obstruction of a train). Rev. Taylor provided notice that he intended to pursue a necessity defense at trial. He believed his actions were necessary to avoid or minimize the imminent danger of climate change and the imminent risk of danger to Spokane citizens in the downtown area where BNSF Railway transports volatile oil.

¶6 The district court judge held an extensive evidentiary hearing. Dr. Steven Running, professor of global ecology at the University of Montana, testified about the direct threat that coal and oil consumption poses to the environment. Tom Hastings, assistant professor of conflict resolution at Portland State University, testified about the history and effectiveness of nonviolent civil disobedience. He explained how civil disobedience could be equally effective "for [achieving] environmental protections" when other means have failed. Clerk's Papers (CP) at 12-13, 93-119. Finally Fred Millar, a recognized international analyst in transportation and accident prevention, offered evidence about the specific harms of train derailment. He explained how these events have occurred with "trains carrying coal and oil products in Montana and Oregon, and involved trains that traveled through Spokane." CP at 13. The district court judge then granted Rev. Taylor's motion to present the necessity defense.

¶7 The State filed an ex parte petition for a writ of review of that decision in the superior court, which was granted on March 30, 2018. Rev. Taylor was not given notice of the hearing in which the writ was presented to the judge nor was defense counsel advised about which Spokane County superior court judge would preside over the ex parte proceeding. The petition was subsequently granted.

¶8 On April 4, 2018, merely days after the ex parte petition was granted, Rev. Taylor filed a notice to disqualify the superior court judge. The judge heard argument and ruled that the notice of disqualification was untimely under RCW 4.12.050 because he had already made a discretionary decision by granting the writ of review. On November 15, 2018, the superior court reversed the district court's decision to allow the necessity defense and rejected the argument that legal alternatives must be "effective" in order to be reasonable. Rev. Taylor moved for discretionary review in Division Three. Division Three issued a split decision affirming the superior court. State ex rel. Haskell , 13 Wash. App. 2d at 580, 465 P.3d 343. We granted discretionary review. State v. Spokane County Dist. Court , 196 Wash.2d 1016, 474 P.3d 1055 (2020).

ISSUES

¶9 I. Whether the superior court judge erred in denying Rev. Taylor's notice of disqualification?

¶10 II. Whether Rev. Taylor was entitled to present the necessity defense?

ANALYSIS

I. The Superior Court Properly Rejected Rev. Taylor's Notice of Disqualification

¶11 RCW 4.12.050 allows "[a]ny party to or any attorney appearing in any action or proceeding in a superior court [to] disqualify a judge from hearing the matter, subject to these limitations: (a) Notice of disqualification must be filed and called to the attention of the judge before the judge has made any discretionary ruling in the case." RCW 4.12.050(2) states:

Even though they may involve discretion, the following actions by a judge do not cause the loss of the right to file a notice of disqualification against that judge: Arranging the calendar, setting a date for a hearing or trial, ruling on an agreed continuance, issuing an arrest warrant, presiding over criminal preliminary proceedings under CrR 3.2.1, arraigning the accused, fixing bail, and presiding over juvenile detention and release hearings under JuCR 7.3 and 7.4.

¶12 Rev. Taylor argues that the ex parte writ of review under RCW 7.16.040 is either nondiscretionary or akin to those actions that involved discretion but are excluded from the definition of "discretionary rulings." RCW 4.12.050(2). In the alternative, Rev. Taylor argues that constitutional due process at a minimum requires that he have the opportunity to present the notice of disqualification, even if the judge exercised some form of discretion when he signed off on the previous ex parte order.

¶13 Without doubt, "[t]hose coming before the court have a fundamental right to an impartial decision-maker." Godfrey v. Ste. Michelle Wine Estates Ltd. , 194 Wash.2d 957, 959, 453 P.3d 992 (2019). "To protect this fundamental right, Washington statutes liberally allow litigants to disqualify a judge assigned to their case without establishing prejudice—but, usually, only before that judge has made a discretionary ruling or order in the case." Id . (discussing the history of RCW 4.12.040, .050). Therefore, we must decide whether Rev. Taylor's notice of disqualification was filed before a discretionary decision was made.

A. A Writ of Review under RCW 7.16.040 Is a Discretionary Decision

¶14 We have consistently stated, for the purpose of RCW 4.12.050, that "the substance and impact of a request is the most relevant consideration for assessing whether discretion is employed in ruling on the request, regardless of what form the request takes ." State v. Lile , 188 Wash.2d 766, 778, 398 P.3d 1052 (2017) ; see also State v. Parra , 122 Wash.2d 590, 597-603, 859 P.2d 1231 (1993). In Lile , we held that an order granting a joint trial continuance was discretionary because it required the judge to " ‘consider various factors, such as diligence, materiality, due process, a need for an orderly procedure, and the possible impact of the result on the trial.’ " 188 Wash.2d at 776, 398 P.3d 1052 (internal quotation marks omitted) (quoting In re Recall of Lindquist , 172 Wash.2d 120, 130, 258 P.3d 9 (2011) ). These same factors demonstrate that a RCW 7.16.040 writ of review is a request for the superior court to exercise its discretion because...