State v. Superior Court of Washington for King County

• Decision Date: 19 October 1922
• Docket Number: 17581.
• Court: Washington Supreme Court
• Parties: STATE ex rel. DOUGLAS, Pros. Atty., v. SUPERIOR COURT OF WASHINGTON FOR KING COUNTY.

209 P. 1097

121 Wash. 611

STATE ex rel. DOUGLAS, Pros. Atty., v. SUPERIOR COURT OF WASHINGTON FOR KING COUNTY.

No. 17581.

Supreme Court of Washington

October 19, 1922

Department 2.

Application for writ of mandate by the State of Washington, on the relation of Malcolm Douglas, as Prosecuting Attorney of King County, to be directed to the Superior Court of the State of Washington for King County, Austin E. Griffiths, Judge. Temporary writ modified and made permanent.

Malcolm Douglas and Bert C. Ross, both of Seattle, for relator.

C. W Strother, of Seattle, for respondent.

HOVEY J.

The relator, Malcolm Douglas, as prosecuting attorney of King county, Wash., applied for and secured in this court an alternative writ of mandate, requiring the respondent Austin E. Griffiths, a superior judge of King county, Wash., to transfer a certain criminal case entitled the 'State of Washington v. Pete Marting' to another superior judge in said county, and directing the respondent to take no further step or proceeding in relation to said cause other than to enter the order of transfer or to show cause before this court why such transfer has not been granted.

Upon the return day respondent filed a written motion, asking that the writ be modified in accordance with section 36, Rem. Code, and section 24 of article 4 of the Constitution of the state of Washington, and with the rules of the superior court of King county, Wash., and the general laws of this state. The section of the statute and the provision of the Constitution referred to provide that the superior courts shall make rules for their government. Upon the argument however, the question submitted to this court is the right of the state to have a change of judges in a criminal case under the provisions of sections 209-1 and 209-2, Rem. Code, which reads as follows:

'Sec. 209-1. 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. In such case the presiding judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court, or apply to the Governor to send a judge, to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court.

'Sec. 209-2. 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, further, that no party or attorney shall be permitted to make more than one application in any action or proceeding under this act.'

And there was presented the further question of whether such right, if it does exist, can be exercised at the time the prisoner is arraigned, which is the situation involved in the present case.

The first point has never been expressly passed upon by this court, although in State ex rel. O'Phelan v. Superior Court, 88 Wash. 669, 153 P. 1078, the affidavit had been made by the prosecuting attorney, and the court had made the order transferring the cause, and no question was raised as to the correctness of this proceeding, and it was further held that by such action the judge against whom the affidavit had been filed did not have the power to order a change of venue asked for by the defendant. That the statute applies in a criminal case where the defendant is the applicant was expressly decided in State v. Vanderveer, 115 Wash. 184, 196 P. 650.

It is contended by respondent that the statute is not intended to give this right to the prosecution, inasmuch as the state is representative both of the prosecution and the defendant, and the judge and the prosecuting attorney are simply officers to perform public functions. Theretically, of course, the prosecuting attorney in his capacity as a public official represents the defendant, as well as the state, to the end that he should secure for the defendant any rights to which the latter may be justly entitled, and should endeavor to procure...