State v. Spokane Cnty. Dist. Court

• Decision Date: 09 June 2020
• Docket Number: No. 36506-9-III,36506-9-III
• Citation: 465 P.3d 343,13 Wash.App.2d 573
• Court: Washington Court of Appeals
• Parties: STATE of Washington, EX REL. Lawrence H. HASKELL, Respondent, v. SPOKANE COUNTY DISTRICT COURT, Judge Debra R. Hayes, Defendants, George E. Taylor, Petitioner.

13 Wash.App.2d 573

465 P.3d 343

STATE of Washington, EX REL. Lawrence H. HASKELL, Respondent,

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

No. 36506-9-III

Court of Appeals of Washington, Division 3.

FILED JUNE 9, 2020

PUBLISHED OPINION

Lawrence-Berrey, J. ¶ 1 George Taylor protested the delivery of oil and coal by railcars while standing on BNSF Railway Company's mainline tracks. He refused to leave the tracks when directed by law enforcement, and the State charged him with second degree trespass and obstructing a train. We granted Taylor's petition for discretionary review to determine whether he can assert the defense of necessity.

¶ 2 Persuasive authority rejects the notion that a person engaged in civil disobedience may assert a necessity defense when charged with violating constitutional laws. We conclude that Taylor had reasonable legal alternatives other than trespassing on BNSF's tracks and obstructing a train, even if those alternatives had not brought about timely legislative changes.

FACTS¹

¶ 3 Reverend George Taylor was part of a group of protestors who walked onto BNSF property and stood on the mainline tracks. "No Trespassing" signs were posted, and Taylor knew the property was private and he had no permission to enter the property. Clerk's Papers (CP) at 167. Taylor and his fellow protestors held signs and banners protesting the transport of coal and oil. For the safety of the protestors, trains in the general vicinity were held idling at the railway yard.

¶ 4 BNSF and other law enforcement officers responded. The protestors, including Taylor, were told they would be arrested if they refused to leave. Three protestors, including Taylor, politely refused to leave and remained on the tracks. Law enforcement escorted the three off the tracks and peacefully arrested them.

¶ 5 The State charged Taylor with criminal trespass in the second degree and unlawful obstruction of a train, both misdemeanors. Taylor filed a motion requesting to assert the defense of necessity. At the hearing, Taylor and two of his experts testified in support of his motion, and Taylor submitted a declaration of his third expert.

¶ 6 First, Taylor called Dr. Steven Running, a regents professor of ecology at the University of Montana. Dr. Running was the lead author for the 4th Assessment of the Intergovernmental Panel on Climate Change. He shared the Nobel Peace Prize with Al Gore in 2007. Dr. Running noted three facts that climate scientists observe: (1) greenhouse gases and carbon dioxide have been increasing in the atmosphere over the last 50 years, (2) because of the increase in greenhouse gases, the global temperature has risen and, in the last 20 years, the temperature rise has accelerated, and, (3) a reduction in carbon emissions is necessary to stabilize the global climate.

¶ 7 Human behavior has caused the rise of carbon emissions—the largest single source of carbon dioxide (CO2) emissions is from burning coal, the second leading cause is from burning oil, and the third largest contributor is from burning natural gas. Dr. Running recommended that in order to reduce carbon emissions, people around the globe need to stop burning coal, stop burning oil, and move to nonfossil fuel energy sources. China is the biggest consumer of coal. China purchases a lot of coal from Montana and Wyoming, which is then shipped by train through western cities, including Spokane.

¶ 8 Next, Taylor called Tom Hastings, an assistant professor of conflict resolution at Portland State University. Professor Hastings has served on the Peace and Conflict Studies Consortium, the Peace and Justice Studies Association of the Binational U.S.-Canada Academic Association, the International Peace Research Association Foundation, and the International Center on Nonviolent Conflict in Washington D.C. Professor Hastings specializes in civil resistance, civil disobedience, and strategic nonviolent conflict.

¶ 9 Professor Hastings testified that civil resistance is effective in bringing about social change. A comprehensive study showed that nonviolent civil resistance is twice as effective as violent civil resistance and is more likely to succeed in achieving the desired goal. Often times, the classic nonviolent resistance campaign attempts to reach the media to try to help educate citizens because that is how public policy is transformed. In his opinion, Taylor's actions aligned with a nonviolent civil resister. In civil disobedience cases, the judicial branch is the last best hope. Professor Hastings testified that civil resistance can reduce climate change.

¶ 10 Taylor intended to call Fred Millar, but because Mr. Millar could not make the hearing, Taylor submitted Mr. Millar's declaration. Mr. Millar is an international analyst in nuclear waste storage and transportation, accident prevention, and emergency planning and homeland security. Mr. Millar's declaration addressed the preparedness and emergency protocols to protect public safety in the event of crude oil train derailments, spills, or explosions. In his opinion, the nation is inadequately prepared for such circumstances and the harm associated with crude oil train derailments, spills, or explosions are imminent. The United States has almost monthly occurrences of some type of crude oil train derailment, spill, or explosion. Some have involved trains carrying coal from Montana and some have involved trains traveling through Spokane.

¶ 11 Lastly, Taylor testified. He said he protested on the train tracks to bring local legislative attention to the imminent danger posed by coal and oil trains that pass through cities. Taylor is involved in environmental education and studies, participates in the Safer Spokane Initiative, is a member of the Sierra Club, and votes for "green" candidates—those who want to save and preserve the environment. CP at 143. In addition, he has brought his concerns to many local state and federal officials. He testified that nothing in the environmental community was working, and he was quite discouraged. He believed there was no other reasonable alternative than to protest on the railroad tracks.

¶ 12 Taylor believed his actions were necessary to avoid the imminent danger to Spokane citizens of train derailment and to minimize the danger to the Earth due to climate change. He believed the danger to the public through the railroad transport of coal and oil through Spokane was far greater than his act of trespassing.

¶ 13 The district court entered findings of fact and conclusions of law and discussed the four elements a defendant must establish to assert the defense of necessity. With respect to the fourth element, the element contested on appeal, the district court concluded Taylor was required to establish "the Defendant believed no reasonable legal alternative existed." CP at 15 (emphasis added). Because Taylor believed no reasonable legal alternative existed to trespassing and obstructing a train, and because he had presented sufficient evidence of the first three elements, the district court granted Taylor's motion allowing him to present the defense of necessity at trial.

¶ 14 Soon after the ruling, the State filed an application for statutory writ of review with the county superior court. The superior court granted the writ without notice to Taylor. The writ ordered four things: (1) that it be served on the district court within 20 days, (2) that the district court record be transmitted to superior court in accordance with applicable rules, (3) that the parties agree to a briefing schedule, and (4) that the district court proceedings be stayed pending superior court review.

¶ 15 The State thereafter served Taylor with its application and writ. Taylor moved to disqualify the superior court judge pursuant to RCW 4.12.050. The superior court denied Taylor's motion, reasoning that the issuance of the writ was a discretionary ruling that caused Taylor's motion to be untimely.

¶ 16 In their briefs to the superior court, the parties discussed the four elements of the defense of necessity, including the fourth element, whether "no reasonable legal alternative existed" other than for Taylor to trespass and obstruct trains. In its decision, the superior court wrote: "[Taylor] ... has interpreted ‘reasonable’ to be synonymous with effective; that is, not whether legal alternatives exist to protest climate change, but whether the attempts to utilize those alternatives to date have been effective." CP at 232. The trial court disagreed with Taylor's interpretation and concluded the standard was whether no reasonable legal alternative existed. The superior court determined that Taylor had reasonable legal alternatives and reversed the district court.

¶ 17 Taylor timely petitioned this court for discretionary review and raised two issues. First, whether the superior court erred by precluding him from raising the defense of necessity. Second, whether the superior court erred by not disqualifying itself.

¶ 18 Our commissioner denied Taylor's petition. Taylor moved to modify our commissioner's decision, and we granted Taylor's motion. A panel of this court considered these issues without oral argument.

ANALYSIS

A. NOTICE OF DISQUALIFICATION

¶ 19 As a preliminary matter, we address Taylor's argument that the superior court erred by not disqualifying itself.

¶ 20 Due process and the appearance of fairness doctrine require disqualification of a judge who is biased against a party or whose impartiality may be reasonably questioned. State v. Ryna Ra , 144 Wash. App. 688, 704-05, 175 P.3d 609 (2008). Taylor did not seek to disqualify the superior court judge under these standards. To the extent his arguments on appeal raise due process and appearance of fairness concerns, we deem those arguments waived. RAP 2.5(a) ; In re Rapid Settlements, Ltd. , 166 Wash. App. 683, 695, 271 P.3d 925 (2012).

¶ 21 Taylor sought to disqualify the superior court judge pursuant...