Anita Khandelwal v. Seattle Municipal Court

431 P.3d 506

• Court: Court of Appeals of Washington
• Decided: December 3, 2018
• Docket: 78058-1
• Status: Published

Opinion

FILED COUT APPE ALS BlYk l. STATE OF WASHINGTON

201B DEC -3 AM 10: 45

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

ANITA KHANDELWAL, INTERIM ) No. 78058-1-1 DIRECTOR, KING COUNTY ) DEPARTMENT OF PUBLIC DEFENSE, ) DIVISION ONE ) Respondent, ) PUBLISHED OPINION ) v. ) ) SEATTLE MUNICIPAL COURT; THE ) HONS. KAREN DONOHUE, WILLIE ) GREGORY,ANITA CRAWFORD-WILLIS, ) C. KIMI KONDO, ED McKENNA, DAMON ) SHADID, and ADAM EISENBERG; JOHN ) DOE 1-50, JANE DOE 1-50, ) ) Appellants. ) FILED: December 3, 2018 )

ANDRUS, J. — Seattle Municipal Court and its seven elected judges appeal

a superior court order to hold preliminary appearance hearings no later than the

close of business the next court day. We affirm.

FACTS

Rule 3.2.1 of the Criminal Rules for Courts of Limited Jurisdiction (CrRLJ),

entitled "Procedure Following Warrantless Arrest — Preliminary Hearing," provides

in pertinent part:

(d) Preliminary Appearance.

(1) Adult. Unless an accused has appeared or will appear before the superior court for a preliminary appearance, any accused No. 78058-1-1/2

detained in jail must be brought before a court of limited jurisdiction as soon as practicable after the detention is commenced, but in any event before the close of business on the next court day.

CrRLJ 3.2.1(d)(1). The purpose of this preliminary appearance hearing is to

provide the accused with an attorney, and to inform her of the nature of the charges

against her, her right to the assistance of counsel, and the right to remain silent.

CrRLJ 3.2.1(e)(1). If the court denies an accused's request for release at the

hearing, the court must also determine whether probable cause exists to believe

the accused committed the crime and set bail. CrRLJ 3.2.1(e)(2). The probable

cause and bail decision must be made no later than 48 hours after arrest. CrRLJ

3.2.1(a); Westerman v. Cary, 125 Wn.2d 277, 289, 892 P.2d 1067(1994).

Seattle Municipal Court conducts preliminary appearance hearings in the

King County jail six mornings each week—Monday through Saturday from 9:00

a.m. to approximately 12:00 p.m: One of the seven municipal court judges

presides over these jail hearings.

In October 2017, King County Department of Public Defense (DPD)

attorneys representing defendants on the jail calendar filed affidavits of prejudice—

now known as notices of disqualificationl—against the judge assigned to that

calendar. CrRLJ 8.9(c) provides that whenever a judge is disqualified, "the judge

shall immediately make an order transferring and removing the case to another

judge." Seattle Municipal Court informed DPD that it had no other judicial officer

available to handle preliminary appearance hearings for those who exercised their

right to file a notice of disqualification. The court thereafter instituted a policy that

1 RCW 4.12.050 was amended in 2017. Laws of 2017, ch. 42,§ 2; see also RCW 4.12.040.

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if an accused filed a notice of disqualification against the judge presiding over the

in-custody preliminary appearance hearings, the court would transfer the matter to

a different judge to make an in-chambers probable cause finding, to set bail, and

to set a future arraignment date. As Judge Karen Donohue, then Presiding Judge

at Seattle Municipal Court, explained:

For decades, Seattle Municipal Court has held probable cause hearings on the record at the same time [as] the preliminary appearance and arraignment hearings are held. The court rules do not, however, require this procedure. Under CrRLJ 3.2.1, the court must determine probable cause within 48 hours of arrest, and there is no requirement for the criminal defense attorney to be present. Where [a notice of disqualification] is filed at the preliminary appearance calendar, our response is to ensure that the defendant receives a probable cause determination within the 48-hour timeframe and then attempt to schedule the defendant to appear before a judge as quickly as possible in the event they do not post bond and remain in custody.

... Where an affidavit is filed, this court continues to provide the defendant with a preliminary appearance as quickly as possible consistent with CrRLJ 8.9 and the practical administrative limitations that exist with our court. Based upon the workload of the [c]ourt, and due to the limitations placed on us by the [In re the Application for a Writ of Habeas Corpus of] Enc[, 113 Wn.2d 178, 776 P.2d 1336 (1989),] decision we do not have judges who are able to jump from calendar to calendar if an attorney files[a notice of disqualification].[21

In early December 2017, a pro tempore judge was covering the Saturday

preliminary appearance calendar, and eight defendants filed notices of

disqualification. A municipal court judge remotely reviewed the police reports for

2 Judge Donohue is referring to the Washington Supreme Court decision in Eng, in which it held that the City of Seattle's decision to appoint a "permanentjudge pro tempore" exceeded its statutory jurisdiction to create additional municipal court departments. 113 Wn.2d at 193-95. It held the City could not appoint a permanent judge pro tempore to serve full time in a separate courtroom and that it could only appoint judges pro tempore to serve in an already validly created department under an elected judge. Id. at 194-95. The result of .Enq is that, unless the Seattle City Council creates another department pursuant to statutory requirements, the Seattle Municipal Court can have no more than seven judges or pro tempore judges on the bench at any one time. Id.; see also SMC 3.33.040. - 3- No. 78058-1-1/4

the six cases needing probable cause determinations, found probable cause, set

bail, and set these cases over to the following Monday's calendar for arraignment.

The following Monday, December 4, 2017, the judge presiding over the in-custody

calendar was confronted with 58 cases. The judge concluded the number of cases

exceeded what could be completed in one morning and that Seattle Municipal

Court did not have judicial resources available for an afternoon calendar in the jail.

The judge set six cases over to the following day, Tuesday, December 5, 2017.

Two of these cases had already been continued from the prior Saturday calendar

because of notices of disqualification. The other four were individuals who had not

filed disqualification notices. Seattle Municipal Court made probable cause and

bail decisions in each case within the 48-hour deadline. But two individuals did not

appear before a judge within 48 hours of their arrest, and, according to DPD,four

individuals spent an additional night in jail.

On December 12, 2017, DPD, on behalf of its clients, petitioned King

County Superior Court for a writ of review challenging Seattle Municipal Court's

policy of delaying preliminary appearance hearings for those who file a notice of

disqualification. DPD argued that Seattle Municipal Court's policy violated CrRLJ

3.2.1 and penalized individuals who exercised their right to file a notice of

disqualification by requiring them to remain in jail longer than they would have

otherwise. Seattle Municipal Court countered that because it had made probable

cause and bail determinations within the required 48-hour timeframe, it was

inconsequential that the preliminary appearance hearing took place after the time

specified in the rule. It maintained that technical violations of the preliminary

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appearance rule should be disregarded where the 48-hour rule for probable cause

and bail determinations had been satisfied.

On January 22, 2018, the superior court granted DPD's writ of review. It

determined that Seattle Municipal Court's policy ensured that probable cause

determinations were made within 48 hours of arrest and, thus, did not violate any

arrestee's constitutional rights. It concluded, however, that the policy violated

CrRLJ 3.2.1(d)(1) which "unambiguously require[s] that when an individual is

subjected to a warrantless arrest and held in jail, he or she must be brought before

a judicial officer for a preliminary appearance hearing 'the next court day'following

the arrest." It further concluded that filing a notice of disqualification did not waive

the defendant's right to a timely preliminary appearance hearing. It ordered:

The Seattle Municipal Court shall provide all persons detained in the King County Jail following a warrantless arrest on a misdemeanor or gross misdemeanor charge a preliminary appearance hearing the next court day following his or her arrest regardless of whether he or she files [a notice of disqualification] against the judge initially assigned to hear that appearance.

Seattle Municipal Court appeals.

ANALYSIS

Seattle Municipal Court raises three arguments on appeal. First, it argues

that because it makes probable cause and bail determinations within the

constitutionally required 48-hour deadline, CrRLJ 3.2.1 should be interpreted to

give the court flexibility to relax the "next court day" deadline when a defendant

files a notice of disqualification under CrRLJ 8.9. Second, it contends that the "next

court day" deadline in CrRLJ 3.2.1 is not mandatory but is, instead, merely a guide.

5 No. 78058-1-1/6

Finally, it contends that its policy is a reasonable response to an extraordinary

circumstance, which excuses strict compliance with the rule.

We reject Seattle Municipal Court's first two arguments because the

language of the rule does not support them. And while we are sympathetic to the

administrative burden Seattle Municipal Court faces under Enq, the record is

insufficient to demonstrate an "extraordinary circumstance" justifying a delay in

preliminary appearance hearings.

Standard of Review

RCW 7.16.040 sets out the grounds for granting a writ of review. A superior

court may grant a statutory writ of review if (1) there is no appeal or adequate

remedy at law and (2) the inferior tribunal has exceeded its jurisdiction or acted

illegally.3 State v. Chelan Cnty. Dist. Court, 189 Wn.2d 625, 630, 404 P.3d 1153

(2017); Dep't of Labor & Indus. of State v. Bd. of Indus. Ins. Appeals of State, 186

Wn. App. 240, 244, 347 P.3d 63 (2015). We review a superior court's order

granting a writ of review de novo. Dep't of Labor & Indus. of State, 186 Wn. App.

at 244.

A. Compliance with constitutional probable cause and bail determination deadlines does not justify non-compliance with CrRLJ 3.2.1.

Seattle Municipal Court argues that the superior court erred in concluding

that its policy violates CrRLJ 3.2.1 because it has ensured that every arrestee

receives a probable cause and bail decision within 48 hours of arrest. It contends

that under County of Riverside v. McLaughlin,4 the rule should be interpreted to

3 SeattleMunicipal Court does not challenge on appeal the first element of the writ of review test. 4 500 U.S. 44, 111 S. Ct. 1661, 114 L.Ed.2d 49 (1991).

-6 - No. 78058-1-1/7

give it the flexibility to delay preliminary appearance hearings when confronted with

a notice of disqualification.

There is nothing in the language of CrRLJ 3.2.1 to support this argument.

When interpreting court rules, the court approaches the rules as though they had

been drafted by the Legislature. State v. Greenwood, 120 Wn.2d 585, 592, 845

P.2d 971 (1993). The meaning of a court rule, like a statute, is thus a question of

law subject to de novo review. Dep't of Ecology v. Campbell & Gwinn, L.L.C.,.146

Wn.2d 1, 9, 43 P.3d 4(2002).

"[C]ourt rules are subject to the same principles of construction as are

statutes." In re McGlothlen, 99 Wn.2d 515, 522,663 P.2d 1330(1983). When the

language of a rule is plain and unambiguous, we give the language its full effect.

City of Seattle v. Guav, 150 Wn.2d 288, 300, 76 P.3d 231 (2003); see also State

v. Chhom, 162 Wn.2d 451,458, 173 P.3d 234(2007). Language in a court rule is

unambiguous unless it is susceptible to more than one reasonable meaning. In re

the Personal Restraint of Stenson, 153 Wn.2d 137, 146, 102 P.3d 151 (2004)

(quoting Guay, 150 Wn.2d at 300).

There is nothing ambiguous about CrRLJ 3.2.1's requirement that the

preliminary appearance hearing must occur no later than the close of business of

the next court day after a warrantless arrest. We cannot find more than one

reasonable meaning to this language.

The "next court day" rule has no exception for when a defendant has filed a

notice of disqualification. CrRLJ 3.2.1 sets out only one exception. Under CrRLJ

3.2.1(d)(3), if an accused is unavailable due to physical or mental disability, the

7 No. 78058-1-1/8

court may for good cause enlarge the time prior to a preliminary appearance. We

infer from the inclusion of this exception and the omission of any exception for a

judicial disqualification that the omission was intentional. See In re the Personal

Restraint Petition of Acron, 122 Wn. App. 886, 890, 95 P.3d 1272 (2004)(when

legislature includes certain exceptions but not others, the principal of expressio

unius est exclusio alterius requires inference that legislature intended the

omission).

Moreover, the Washington Supreme Court has, in other circumstances,

recognized that a judicial disqualification justifies extending a time deadline. Under

CrRLJ 3.3(e)(9), when computing the deadline for commencing a defendant's trial,

the court excludes five days if a judge is disqualified. No similar extension of time

exists in CrRLJ 3.2.1. Again, canons of construction require the inference that the

Washington Supreme Court understood that a judge could be disqualified from

conducting a preliminary appearance hearing, and yet it did not authorize

extending the deadline under such circumstances. As the Washington Supreme

Court has noted, it is presumed to know the rules of statutory construction. State

v. Blilie, 132 Wn.2d 484, 492, 939 P.2d 691 (1997).

Seattle Municipal Court argues that the timing requirements adopted by the

United States Supreme Court in County of Riverside v. McLaughlin should be

applied to the timing requirements of CrRLJ 3.2.1. 500 U.S. 44, 111 S. Ct. 1661,

114 L.Ed.2d 49 (1991). But, this argument conflates Fourth Amendment

jurisprudence with the procedural protections afforded by the court rule.

8 No. 78058-1-1/9

In Gerstein v. Pugh, the Supreme Court held that the Fourth Amendment

requires a "prompt" judicial determination of probable cause for any significant

pretrial restraint of liberty. 420 U.S. 103, 125-26, 95 S. Ct. 854, 43 L. Ed. 2d 54

(1975). In McLaughlin, the Supreme Court recognized that Gerstein's "prompt"

standard had not provided sufficient guidance to courts. 500 U.S. at 56. It sought

"to provide some degree of certainty so that States and counties may establish

procedures with confidence that they fall within constitutional bounds." Id. It thus

held that courts must make a probable cause determination within 48 hours of

arrest. Id. It further held that if the probable cause determination was not made

within 48 hours of arrest, the government bears the burden "to demonstrate the

existence of a bona fide emergency or other extraordinary circumstance." Id. at

57.

The McLaughlin Court acknowledged that "introducing further procedural

complexity into an already intricate system" might be a disservice to everyone

involved, including those persons detained. Id. at 53. Rather than imposing any

further constitutionally mandated procedures, the Court allowed for "flexibility and

experimentation by the States." Id. (quoting Gerstein, 420 U.S. at 123).

While Gerstein and McLaughlin give local courts flexibility in establishing

pretrial procedures, the deadline the Seattle Municipal Court seeks to avoid is one

imposed by the Washington Supreme Court through its inherent rule-making

authority. See State v. Smith, 84 Wn.2d 498, 502, 527 P.2d 674 (1974)("[T]he

promulgation of rules of procedure is an inherent attribute of the Supreme Court

and an integral part of the judicial process."). The Washington Supreme Court has

9 No. 78058-1-1/10

the authority to issue procedural rules that go beyond the protections provided by

the U.S. Constitution as long as there is a nexus between the rule and the court's

rule-making authority over procedural matters. State v. Templeton, 148 Wn.2d

193, 217-19, 59 P.3d 632 (2002) (CrRLJ 3.1 goes beyond the Fifth and Sixth

Amendment rights to counsel by providing a right to counsel immediately upon

arrest); see also State v. Kirkpatrick, 89 Wn. App. 407, 413-14, 948 P.2d 882

(1997)(a valid Miranda5 warning does not fulfill CrR 3.1(c)(2)'s requirement that

defendant be offered opportunity to consult with counsel).

The procedural protections codified in CrRLJ 3.2.1(d) and (e) are distinct

from the constitutional deadline for making a probable cause determination under

McLaughlin and serve a very different purpose. Under Gerstein, the probable

cause determination is not a critical stage requiring appointment of counsel. 420

U.S. at 120 (adversary safeguards of appointment of counsel are not essential to

probable cause determination). CrRLJ 3.2.1(e), however, requires the court to

provide the defendant with a lawyer, and to orally inform the defendant of the

nature of the charges against him, the right to a lawyer at every stage of the

proceedings, and the right to remain silent. The rule also sets a presumption of

pretrial release. CrRLJ 3.2.1(e); see also CrRLJ 3.2(a)(presumption of release on

the accused's personal recognizance in noncapital cases, unless the court

determines "such recognizance will not reasonably assure the accused's

appearance" or there is a danger the accused will commit a violent crime or

intimidate witnesses). These pretrial rules provide enhanced procedural

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966). - 10- No. 78058-1-1/11

protections to people accused of crimes. And they are in addition to the

constitutional right to a prompt probable cause and bail determination.

Seattle Municipal Court contends we should interpret CrRLJ 3.2.1 to permit

it to substitute a timely in-chambers probable cause and bail judicial determination

for the preliminary appearance hearing if court congestion requires it to do so. We

take no exception to in-chambers probable cause and bail decisions. But the rule

does not permit that procedure as a substitute for a timely hearing before a judicial

officer.

Westerman v. Cary does not support Seattle Municipal Court's argument.

In Westerman, a court of limited jurisdiction issued a general order requiring

anyone held on a domestic violence charge to be held without bail pending his or

her first appearance. 125 Wn.2d at 281. The public defender agency challenged

the legality of this general order under the bail provision, article 1, section 20, of the

Washington State Constitution. Id. at 282-83, 287. The Washington Supreme

Court held that a bail determination must occur as soon as possible, no later than

the probable cause determination, and may be determined by a judge prior to the

preliminary hearing. Id. at 292. In passing, the Supreme Court stated

[t]he primary purposes of the preliminary appearance are a judicial determination of probable cause and judicial review of the conditions of release. The preliminary appearance must be held "as soon as practicable after the detention is commenced,... but in any event before the close of business on the next judicial day." CrR 3.2B; CrRLJ 3.2.1. When combining a probable cause determination, this must be accomplished within 48 hours.

Id. at 291 (alteration in original). Seattle Municipal Court argues that this language

in Westerman suggests that if it combines a probable cause hearing with a bail

hearing, the preliminary hearing need only occur within 48 hours of arrest. We do -11 - No. 78058-1-1/12

not read this passage in Westerman as a re-write of CrRLJ 3.2.1's next court day

deadline. The Washington Supreme Court's "this must be accomplished" refers to

a bail determination, not to a preliminary appearance hearing.

Westerman supports the superior court's conclusion that Seattle Municipal

Court's policy is constitutional, but it does not mean the court is rule-compliant.

Westerman did not hold that an in-chambers probable cause or bail determination

excuses a court from holding a preliminary appearance hearing "before the close

of business on the next court day" as required by CrRLJ 3.2.1.

Seattle Municipal Court argues that we should not interpret CrRLJ 3.2.1

literally because, as McLaughlin suggests, it needs the flexibility to deal with the

practical realities of administering its criminal justice system. There have been

situations in which the Supreme Court has eschewed a literal reading of a rule, but

only when that literal reading did not comport with a logical understanding of the

rule or the rule's intent. Chhom, 162 Wn.2d at 459 (rejecting literal interpretation

of CrRLJ 3.3(g)(5)). In this case, Seattle Municipal Court's policy of delaying

preliminary appearance hearings conflicts with both a logical understanding of the

rule and its intent because it delays appointment of counsel, notification of

constitutional rights, and an opportunity to argue for pretrial release. Neither

McLaughlin nor the complexities in managing a very large municipal court system

justify non-compliance with CrRLJ 3.2.1.

B. The "next court day" deadline is not just a guideline.

Next, the Seattle Municipal Court argues that the "next court day"

requirement of CrRLJ 3.2.1(d)(1) is merely "directory," rather than mandatory. "A

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mandatory provision in a statute is one which, if not followed, renders the

proceeding to which it relates illegal and void; a directory provision is one the

observance of which is not necessary to the validity of the proceeding." Spokane

Cntv. ex rel. Sullivan v. Glover, 2 Wn.2d 162, 169, 628 97 P.2d (1940); see also

State v Rice, 174 Wn.2d 884, 896, 279 P.3d 849 (2012)(noncompliance with a

directory statute has no consequences whereas a violation of a mandatory statute

either invalidates the transaction or subjects the noncomplier to affirmative legal

liabilities).

Seattle Municipal Court contends that CrRLJ 3.2.1's "next court day"

requirement is directory rather than mandatory because a violation of the rule has

no legal consequence.6 It seems to suggest that if the deadline is directory only,

it cannot be ordered to comply with the rule. But the case on which it relies, State

v. Rice, does not support this argument. In Rice, a defendant challenged the

constitutionality of three criminal statutes. 174 Wn.2d at 892. Each statute

provided that "the prosecuting attorney shall file" special allegations if seeking

certain sentencing enhancements. Id. at 893-94. Rice argued that the statute

made the filing of such special allegations mandatory, which violated separation of

powers by interfering with the inherent charging discretion of prosecuting

attorneys. Id. at 892. The Supreme Court rejected the argument by holding that

the statutes were directory, rather than mandatory, despite the use of the word

"shall." Id. at 897.

6 By arguing that a violation has "no consequence," we assume Seattle Municipal Court means that a defendant's remedy for the violation is not dismissal of the case. DPD has not argued to the contrary, but that issue was neither raised below nor adequately briefed on appeal. -13- No. 78058-1-1/14

Rice is not applicable to this case because there is no separation of powers

issue presented by CrRLJ 3.2.1. The Washington Supreme Court has the inherent

authority to promulgate procedural rules for courts of limited jurisdiction in criminal

cases. See City of Fircrest v. Jensen, 158 Wn.2d 384, 394, 143 P.3d 776(2006)

(inherent power of article IV includes power to govern court procedures). Seattle

Municipal Court, established by RCW ch. 35.20 as a court of limited jurisdiction,

cannot adopt rules inconsistent with the general rules promulgated by the Supreme

Court. Abad v. Cozza, 128 Wn.2d 575, 588, 911 P.2d 376(1996). Rice raised the

issue of whether the legislature may require an arm of the executive branch, the

prosecuting attorney, to file charges against an accused. There is no analogous

separation of power issue between the Supreme Court and Seattle Municipal

Court. And Rice certainly does not stand for the proposition that a Supreme Court

rule imposing a time deadline may be rejected by a court of limited jurisdiction if

that rule makes court administration burdensome.

To the extent Seattle Municipal Court is arguing that the word "must" in

CrRLJ 3.2.1 should be deemed merely a "guideline" for courts of limited

jurisdiction, we reject this argument as inconsistent with the plain language of the

rule. Washington courts have consistently held that "must" and "shall" are

synonymous and both words impose mandatory duties. City of Wenatchee v.

Owens, 145 Wn. App. 196, 204, 185 P.3d 1218 (2008) (statute requiring that

ordinance "shall" be signed by mayor and attested by clerk imposes mandatory

duty on clerk to attest to ordinance passed by city's legislative body). CrRLJ

3.2.1(a) states the detainee "shall have a judicial determination of probable cause

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no later than 48 hours following the person's arrest." (emphasis added). The rule

also provides that "the court shall provide for a lawyet]. . . and the court shall

orally inform the accused" of certain rights. CrRLJ 3.2.1(e)(1)(emphasis added).

It would be quite surprising indeed for the court to suggest that the use of the word

"shall" in these provisions is precatory only. And we can find no good reason why

the word "shall" in subparagraphs (a) and (e) would impose a mandatory duty on

courts, but the word "must" in subparagraph (d)of the same rule constitutes a mere

suggestion. Such a construction would violate the basic canon that provisions of

a statute (or court rule in this case) should be read in relation to each other.

Owens, 145 Wn. App. at 205. Seattle Municipal Court acknowledged in its briefing

to this court that the words "shall" and "must" are synonymous under traditional

principles of statutory construction and are both words of "an unmistakably

mandatory character." We agree. We therefore conclude that under CrRLJ

3.2.1(d)(1), the municipal court does not have the discretion to deviate from the

"next court day" rule.

C. A notice of disqualification is not an extraordinary circumstance justifying a policy of delaying a preliminary appearance hearing.

Finally, Seattle Municipal Court argues that administrative constraints at the

court make it impossible for it to meet the preliminary appearance deadline when

the calendar judge has been disqualified. It contends that judicial unavailability is

an extraordinary circumstance justifying its policy of delaying preliminary

appearance hearings. Based on the record before us, we cannot agree.

As a preliminary matter, DPD contends Seattle Municipal Court waived this

argument by failing to raise it below. RAP 2.5(a) states that the appellate court

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"may refuse to review any claim of error which was not raised in the trial court."

We conclude Seattle Municipal Court adequately preserved this issue for appeal

because this "ground for objection is readily apparent from the circumstances."

Blomstrom v. Tripp, 189 Wn.2d 379, 394, 402 P.3d 83 (2017) (concluding that

issue was preserved in court of limited jurisdiction where counsel cited a case

addressing circumstances similar to defendant's case). Seattle Municipal Court

argued below that the notices of disqualification prevented the court from

complying with the court rule. This argument was sufficient to preserve the

argument for appeal.

Seattle Municipal Court argues that judicial unavailability resulting from

defense notices of disqualification constitutes an extraordinary circumstance

justifying a limited delay in conducting preliminary appearance hearings. It relies

on two federal cases, neither of which is analogous.

In Brown v. Sudduth, the Fifth Circuit held that a delay of 66 hours in making

a probable cause determination following a defendant's arrest for murder was

justified by the fact that the police had to determine if the defendant actually

committed the crime in the jurisdiction of arrest and then had to wait overnight for

a magistrate to be available. 675 F.3d 472, 478-80 (5th Cir. 2012). These facts,

it concluded, constituted an extraordinary circumstance justifying the delay. Id. at

480. And in Waoanfeald v. Gusman, the Fifth Circuit concluded that Hurricane

Katrina was a bona fide emergency that justified a court's inability to make a

probable cause determination within 48 hours. 674 F.3d 475, 480-83 (5th Cir.

2012).

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The facts of both cases are distinguishable from this case. In Brown, the

complicated nature of the crime required time to determine which court actually

had jurisdiction over the accused. 675 F.3d at 478. In Wananfeald, the court

confronted a major natural disaster. Both cases presented the courts with extreme

situations outside of their control. The record in this case reveals no similar set of

extreme circumstances.

In this case, Seattle Municipal Court confronted the need to find a second

judicial officer to handle a handful of preliminary appearance hearings that the

judge presiding on the jail calendar could not handle, either because of a notice of

disqualification or because of court congestion. Although there could be

circumstances under which court congestion or judicial unavailability might justify

delaying a preliminary appearance hearing (if, for example, we were to experience

a natural disaster of the magnitude of Hurricane Katrina), there must be a sufficient

factual record to justify a decision in any particular case. Cf. State v. Kenyon, 167

Wn.2d 130, 137-40, 216 P.3d 1024 (2009) (under speedy trial rule, judicial

unavailability or court congestion may justify trial delay if trial court documents the

lack of available courtrooms, judges, visiting judges, or judges pro tempore).

The record before us does not justify a blanket policy of automatically

delaying a hearing when a defendant files a notice of disqualification. The Seattle

Municipal Court argued below that if

the Court were to accept the defense argument that the filing of [a notice of disqualification] requires the assignment of a different judge immediately before any release motions are heard, the potential negative ramification to the court and other defendants will be significant. The other six Municipal Court Judges hear a combination of pre-trial hearings, jury trials, motions hearings, review hearings

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and Mental Health Court pre-trials and contested competency hearings. Switching judges from their assigned calendars is disruptive, time consuming and simply unfeasible. Thus, the practical effect of accepting [a notice of disqualification] in the jail court and requiring another judge to immediately hear the matter would be a delay of arraignment to the next business day.

What the court does not explain, however, is why some of these other proceedings

take precedence over preliminary appearance hearings. For example, why is a

"review hearing" something that a judge could not postpone if he or she was

needed in the jail? Obviously, the court cannot violate one defendant's speedy

trial rights to ensure another defendant has a timely preliminary appearance

hearing. But the Seattle Municipal Court has seven judges and five magistrates,

each of whom could be designated as a pro tempore judge to handle one or two

hearings in an afternoon. Seattle Municipal Court has not adequately explained

why the disqualification of one judge on a morning calendar renders it impossible

for another judge or magistrate to cover a preliminary appearance hearing by the

end of that same court day.

We recognize that RCW 35.20.100 and article IV, section 7 of the Seattle

City Charter set limits on the number of Seattle Municipal Court judges who can

sit at any one time. See Eng, 113 Wn.2d at 189-95. While the Enq decision

precludes the court from hiring a full time pro tempore judge to preside over

hearings in an eighth courtroom, it would not preclude the court from having the

disqualified judge step off the bench while another judge or a magistrate covers a

preliminary hearing in his or her stead.7

7 There is some suggestion in the record that several hearings were delayed, not because of court congestion or judicial unavailability, but because defense attorneys "insisted" the court hear non- priority in-custody warrant cases before higher priority in-custody preliminary appearance hearings. - 18- No. 78058-1-1/19

We conclude that, on this record, judicial unavailability resulting from a

notice of disqualification is not an extraordinary circumstance justifying a blanket

policy of delaying a preliminary appearance hearing beyond the timing prescribed

in CrRLJ 3.2.1(d)(1).

The superior court's writ of review is affirmed.

WE CONCUR:

All courts have the discretion to direct traffic in their courtrooms and to prioritize certain hearings over others. It is the judge's responsibility, despite the vociferous objection of any attorney, to manage his or her calendar appropriately. Judges of the Seattle Municipal Court should not hesitate to so remind the attorneys who appear before them and to take appropriate steps to discourage disruptive behavior. -19-