Nathan Jovee, V. Child Advocacy Center Of Snohomish County

• Court: Court of Appeals of Washington
• Decided: April 25, 2022
• Docket: 82171-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

NATHAN JOVEE and ANNE BLOCK, ) No. 82171-7-I ) (consolidated with Appellants, ) Nos. 82395-7-I, 82570-4-I) ) v. ) ) CHILD ADVOCACY CENTER ) OF SNOHOMISH COUNTY AT ) UNPUBLISHED OPINION DAWSON PLACE, also known as ) DAWSON PLACE, ) ) Respondent. )

BOWMAN, J. — Nathan Jovee and Anne Block appeal the trial court’s

denial of their motions to reconsider its order dismissing their Public Records Act

(PRA), chapter 42.56 RCW, actions and imposing sanctions. They also appeal

an order denying Block’s motion to vacate. We reject their appearance of

fairness claim, and affirm.

FACTS

In February 2018, Jovee and Block each sued the Child Advocacy Center

of Snohomish County at Dawson Place (Dawson Place) in Snohomish County

Superior Court, seeking access to records under the PRA. The court first

assigned the lawsuits to Judge George Appel. But both Jovee and Block soon

moved to disqualify Judge Appel.1 As a result, the presiding judge reassigned

the cases to Judge Richard Okrent.

1Subject to certain limitations, a party has the right to disqualify a judge once. See RCW 4.12.050(1).

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/2

The parties then agreed to consolidate their cases under CR 42(a)2 and

stay the lawsuits pending our decision in a related case, Shavlik v. Dawson

Place, 11 Wn. App. 2d 250, 452 P.3d 1241 (2019).3 The parties agreed that their

lawsuits involved “common issues of law and fact” and stipulated under CR 2A4

that

the issue of whether Dawson Place is an “agency” or substantial equivalent thereof pursuant to the [PRA] [a]s presented by [the Shavlik] appeal is a controlling issue of law and all parties agree to be bound by the determination of the appellate courts.

On November 25, 2019, we issued our ruling in Shavlik, concluding that

Dawson Place is not a “public agency” subject to disclosure requirements under

the PRA. 11 Wn. App. 2d at 269. The Washington State Supreme Court denied

Shavlik’s petition for review on June 3, 2020. Shavlik v. Dawson Place, 195

Wn.2d 1019, 464 P.3d 208 (2020). So Dawson Place presented Jovee and

Block with a stipulated order dismissing their PRA claims. Both refused to sign

the dismissal order and, instead, filed an amended complaint, seeking to add a

theory of contract liability. They alleged that Dawson Place agreed to comply

with the PRA “when it signed a contract with the Department of Commerce.” On

2 When actions involving a common question of law or fact are pending before the court, it may order the actions consolidated for “joint hearing or trial of any or all the matters in issue in the actions.” CR 42(a). Here, the trial court issued an order consolidating the cases “for all purposes, including trial.” If the court consolidates two or more cases for trial, they are consolidated for the purpose of appellate review unless we direct otherwise. RAP 3.3(a). We note that after consolidation in the trial court, Jovee and Block began referring to themselves as “Co-Plaintiff[s].” Dawson Place raised no procedural objections. But for purposes of clarity, we refer to Jovee and Block individually. 3 Judge Appel presided over and dismissed the Shavlik case. 4CR 2A sets forth the manner and form for parties to present an agreement to the court with respect to a dispute within the proceedings.

2 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/3

August 18, 2020, Dawson Place moved to dismiss the amended complaint and

sought fees.

On September 29, 2020, Block moved to disqualify Judge Okrent.

Dawson Place objected, pointing out that Block and Jovee had already exercised

disqualifications as to Judge Appel. Judge Okrent then recused himself from

presiding over the matter. On October 7, 2020, Dawson Place filed an amended

motion to dismiss, asking the court to strike the amended complaint and impose

sanctions against both plaintiffs for willfully circumventing the CR 2A stipulation

and filing a frivolous amendment to the PRA complaint. Dawson Place noted a

hearing on the court’s civil motions calendar for November 5 before Judge Millie

Judge.

Jovee then moved to strike Dawson Place’s amended motion to dismiss

and noted a hearing before Judge Paul Thompson, who was presiding over the

October civil motions calendar. But Judge Thompson recused himself, so Jovee

renoted his motion to strike for November before Judge Judge. Block then

objected to Judge Judge. Judge David Kurtz eventually denied Jovee’s motion

to strike Dawson Place’s amended motion to dismiss.

Because Block objected to Judge Judge, Dawson Place again renoted its

motion to dismiss and set a hearing on the civil motions calendar before Judge

Marybeth Dingledy. Block then sent several derogatory e-mails to Judge

Dingledy and, on November 9, 2020, moved to disqualify her. Judge Dingledy

recused herself as well.

3 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/4

Presiding Judge Bruce Weiss then assigned the case to King County

Superior Court Judge Johanna Bender as a visiting Judge. Block immediately

began sending derogatory ex parte e-mails to Judge Bender at her court and

personal e-mail addresses and leaving messages on Judge Bender’s personal

voicemail. Judge Bender issued an order prohibiting any party from contacting

the judge directly and limiting e-mails from the parties to only one per day. Still,

Block continued to contact Judge Bender through judicial e-mail, personal e-mail,

the judge’s professional Facebook page, and her personal cell phone. Judge

Bender eventually recused herself from the case.

On January 27, 2021, Judge Weiss assigned the case to King County

Superior Court Presiding Judge Jim Rogers. In February 2021, Jovee asked

Judge Rogers to recuse himself, alleging that he financially contributed to

Dawson Place.5 Judge Rogers denied the motion.

Dawson Place tried several times to schedule a hearing for the court to

consider its motion to dismiss. Jovee and Block repeatedly claimed they were

unavailable for proposed hearing dates. Ultimately, on Monday, March 8, 2021,

Judge Rogers told the parties that he would decide the motion without oral

argument. The court noted that the “pleadings are closed,” but it gave the parties

until the “close of business” Friday to submit any further written argument before

deciding the motion on Monday, March 15. Jovee moved again to strike Dawson

Place’s motion to dismiss. Block filed nothing.

On March 15, 2021, the court denied Jovee’s second motion to strike

Dawson Place’s motion to dismiss. It then granted Dawson Place’s motion to

5 The record contains no evidence of such a contribution.

4 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/5

dismiss the amended complaint, concluding that Jovee and Block knowingly and

voluntarily entered into a CR 2A agreement and bound themselves to the Shavlik

decision that Dawson Place is not an “agency” under the PRA. It also issued CR

11 sanctions against both Jovee and Block, awarding Dawson Place attorney

fees and costs.

Block and Jovee each moved to reconsider the order dismissing their

cases. They argued for the first time that Judge Rogers violated the appearance

of fairness doctrine because he failed to disclose that Block sued him and

another judge in October 2020.6 On March 26, 2021, the court denied the

motions to reconsider and entered a judgment for Dawson Place in the amount of

$18,778.70. Jovee appealed the judgment on April 1, 2021 and designated six

more orders and notation rulings signed by Judge Rogers for review, as well

Judge Weiss’ order assigning the case to Judge Rogers.

Meanwhile, on June 1, 2021, Block moved to vacate “all orders issued by

Judge Jim Rogers” under CR 60(b)(11) for violating her right to a fair and

impartial judge. She also asked the court to transfer the case to Skagit County

Superior Court. Block argued that she received a “ ‘new public’ ” e-mail from

Judge Rogers in an unrelated case, showing he was biased against her. Block

pointed to a September 18, 2020 e-mail in which she called another King County

6 In October 2020, Block sued a King County Superior Court judge who presided over another lawsuit of hers, as well as the entity of King County, the Washington State Bar Association, and Judge Rogers. She sought a writ of certiorari, declaratory relief, and injunctive relief, alleging that the judge presiding over her case had a conflict of interest and that Judge Rogers failed to disqualify him. The motions for reconsideration are not in the appellate record. But Judge Rogers addresses the specific arguments in Block’s “Motion for Reconsideration CR 59(a)(1)-(9)(b)” and Jovee’s “Motion to Reconsider Judge Jim Rogers Order Issued on 3/15/2021” in his judgment and decision on reconsideration, and he attaches a copy of Block’s October 2020 complaint to his decision.

5 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/6

Superior Court judge a “corrupt piece of shit.” Block had copied Judge Rogers

on the e-mail.7 Judge Rogers responded the same day:

I have had you in Court many times and you have been respectful and appropriate. But repeatedly now, in dealing with some of our judges, you are insulting and abusive. I wouldn’t address my worst enemies the way you apparently feel comfortable talking about elected officials.

We will move to block your e[-]mail address.[8]

Judge Rogers denied Block’s motion to vacate as untimely and without

cause. Then, on June 15, 2021, Jovee filed an amended notice of direct appeal,

designating the same eight orders as the first notice but adding the order denying

Block’s motion to vacate.9

ANALYSIS

Appearance of Fairness

Block argues that Judge Rogers “violated [her] constitutional right to a fair

and impartial judicial officer” by presiding over her case. According to Block,

Judge Rogers violated “the appearance of fairness that any reasonable person

would have seen as having an actual bias” against her. We disagree.10

On appeal from a trial court’s decision on a CR 60(b) motion, we review

for abuse of discretion only the court’s decision on the motion, not any of the

7The record does not explain why Block copied Judge Rogers. We presume it was to inform him of her allegation because he was the presiding judge of King County Superior Court. 8 Jovee filed a declaration in support of Block’s motion to vacate on June 10, 2021, asserting the September 2020 “e[-]mail communications speak for themselves and show ACTUAL BIAS on the part of Judge Jim Rogers” before Judge Weiss assigned him to their case in January 2021. 9 Block filed the opening brief on appeal. Jovee filed the reply brief. In his brief, Jovee asks us to strike Dawson Place’s “improper” response brief on appeal. We deny his request. 10On April 11, 2022, Jovee filed a “Notice of Objection to Former King County Judicial Officers Hearing this Case” because two former King County Superior Court judges are on the panel. We deny Jovee’s request to “self-recuse” and reassign this appeal to a different panel.

6 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/7

underlying orders.11 In re Marriage of Knutson, 114 Wn. App. 866, 871, 60 P.3d

681 (2003) (citing DeYoung v. Cenex Ltd., 100 Wn. App. 885, 894, 1 P.3d 587

(2000), review denied, 146 Wn.2d 1016, 51 P.3d 87 (2002)); Bjurstrom v.

Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980). We also review a trial

court’s denial of a motion for reconsideration for abuse of discretion. Christian v.

Tohmeh, 191 Wn. App. 709, 728, 366 P.3d 16 (2015), review denied, 185 Wn.2d

1035, 377 P.3d 744 (2016). A trial court abuses its discretion by exercising it on

untenable grounds or for untenable reasons. Knutson, 114 Wn. App. at 871.

Under CR 60(b)(11), a court may vacate a judgment for “[a]ny . . . reason

justifying relief from the operation of the judgment.” CR 60(b)(11) is “intended to

serve the ends of justice in extreme, unexpected situations and when no other

subsection of CR 60(b) applies.” Shandola v. Henry, 198 Wn. App. 889, 895,

396 P.3d 395 (2017). Courts should apply CR 60(b)(11) “sparingly to situations

‘involving extraordinary circumstances not covered by any other section of the

rules.’ ” Knutson, 114 Wn. App. at 872-7312 (quoting In re Marriage of Irwin, 64

Wn. App. 38, 63, 822 P.2d 797 (1992)). A violation of the appearance of fairness

doctrine amounts to an extraordinary circumstance under CR 60(b)(11). Tatham

v. Rogers, 170 Wn. App. 76, 81, 283 P.3d 583 (2012).

Under the appearance of fairness doctrine, judges should disqualify

themselves “in a proceeding in which their impartiality might reasonably be

questioned.” Sherman v. State, 128 Wn.2d 164, 188, 905 P.2d 355 (1995). We

11 So even though Jovee designated several orders signed by Judge Rogers in his amended notice of appeal, we review (1) the court’s decision on Block’s CR 60(b)(11) motion to vacate and (2) Block and Jovee’s motions to reconsider, the only motions asserting an appearance of fairness claim. 12 Internal quotation marks omitted.

7 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/8

use an objective test to determine whether a judge should disqualify himself. In

re Pers. Restraint of Swenson, 158 Wn. App. 812, 818, 244 P.3d 959 (2010).

The critical analysis for the appearance of fairness doctrine is how the

proceedings would appear to a reasonably prudent and disinterested person.

Chi., Milwaukee, St. Paul, & Pac. R.R. v. Human Rights Comm’n, 87 Wn.2d 802,

810, 557 P.2d 307 (1976).

We presume judges perform their functions without bias or prejudice.

Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993). A party

asserting a violation of the appearance of fairness doctrine must show evidence

of actual or potential bias. State v. Chamberlin, 161 Wn.2d 30, 37, 162 P.3d 389

(2007) (citing State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599

(1992)); see also In re Pers. Restraint of Haynes, 100 Wn. App. 366, 377 n.23,

996 P.2d 637 (2000) (A party “must produce sufficient evidence demonstrating

bias, such as personal or pecuniary interest on the part of the decision maker;

mere speculation is not enough.”).

An appearance of fairness claim is not constitutional in nature under RAP

2.5(a)(3), so it may not be raised for the first time on appeal. In re Guardianship

of Cobb, 172 Wn. App. 393, 404, 292 P.3d 772 (2012) (“ ‘Our appearance of

fairness doctrine, though related to concerns dealing with due process

consideration[s], is not constitutionally based.’ ”) (quoting City of Bellevue v.

Boundary Review Bd., 90 Wn.2d 856, 863, 586 P.2d 470 (1978); State v.

Morgensen, 148 Wn. App. 81, 90-91, 197 P.3d 715 (2008). As a result, “a litigant

who proceeds to trial knowing of potential bias by the trial court waives [her]

8 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/9

objection and cannot challenge the court’s qualifications on appeal.” In re

Welfare of Carpenter, 21 Wn. App. 814, 820, 587 P.2d 588 (1978). Such a rule

prevents a party from speculating about how the court will rule on issues in the

case and then, if the rulings are not in the party’s favor, raising the issues for the

first time on appeal. Id.

Here, Block obviously was aware of her own October 2020 lawsuit naming

Judge Rogers as a party when Judge Weiss assigned him to her case in January

2021. She had also received Judge Rogers’ September 18, 2020 e-mail months

before the January 2021 assignment. Yet Block did not ask Judge Rogers to

recuse himself. Instead, Block waited several months to raise an appearance of

fairness violation in the form of a motion to reconsider and a motion to vacate,

after Judge Rogers dismissed her case. As a result, she waived any objections

to Judge Rogers’ qualifications. The court did not err in denying the motions to

reconsider and vacate.

And, even if Block had timely raised her concerns, they would not have

warranted recusal. Block complains that Judge Rogers told her she was

“insulting and abusive” to several judges and that the court would “move to block

[her] e[-]mail address.” But a court may “place reasonable restrictions on any

litigant who abuses the judicial process.” Yurtis v. Phipps, 143 Wn. App. 680,

693, 181 P.3d 849 (2008). Explaining to a litigant that her conduct is

unacceptable and exercising the discretion to place reasonable restrictions on

her use of e-mail to prevent future abuse does not show actual or potential bias.

9 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/10

Neither would Block’s lawsuit against Judge Rogers warrant recusal. A

party cannot manufacture an appearance of unfairness by suing the presiding

official. In re Disciplinary Proceeding Against King, 168 Wn.2d 888, 905, 232

P.3d 1095 (2010); United States v. Pryor, 960 F.2d 1, 3 (1st Cir.1992) (“It cannot

be that an automatic recusal can be obtained by the simple act of suing the

judge.”) (citing Ronwin v. State Bar of Ariz., 686 F.2d 692, 701 (9th Cir. 1982),

cert. denied, 461 U.S. 938, 103 S. Ct. 2110, 77 L. Ed. 2d 314 (1983)). Block’s

lawsuit alone casts no taint on Judge Rogers’ ability to be fair in this unrelated

matter.

Attorney Fees

Block seeks “an award of Costs and Fees in accordance with RAP 18.1” if

she “prevails on appeal.” Under RAP 18.1(a), a party may recover attorney fees

on appeal if allowed under the applicable law. As Block is not a prevailing party,

we deny her request.

Dawson Place also seeks costs and fees on appeal. It argues that Block’s

appeal is frivolous under RAP 18.9(a), RCW 4.84.185, and CR 11. RAP 18.9(a)

permits an appellate court to award a party attorney fees as sanctions, terms, or

compensatory damages when the opposing party files a frivolous appellate

action. See Reid v. Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004). An

appeal is frivolous if after considering the entire record, we are convinced that the

appeal presents no debatable issues on which reasonable minds might differ.

Tiffany Family Tr. Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325

(2005). We resolve all doubts on whether the appeal is frivolous in favor of the

10 No. 82171-7-I (consol. with Nos. 82395-7-I, 82570-4-I)/11

appellant. Id. Raising at least one debatable issue precludes finding that the

appeal as a whole is frivolous. See Green River Cmty. Coll. Dist. No. 10 v.

Higher Educ. Pers. Bd., 107 Wn.2d 427, 443, 730 P.2d 653 (1986).

While we reject Block’s appearance of fairness claim, it does not amount

to a frivolous appeal. We decline Dawson Place’s request for attorney fees on

appeal.

We affirm the “Judgment and Decision on Motion for Reconsideration” and

the order denying the “CR 60(b)(11) Motion to Vacate for Violation of Plaintiff’s

Right to Fair and Impartial Judge.”

WE CONCUR: