Temporary order bars Whatcom District Court judge from hearing more than 100 cases

After less than a month on the bench, newly elected Whatcom County District Court Judge Jonathan Rands has found himself in the middle of a legal battle with the Whatcom County Prosecuting Attorney’s Office.

The prosecutor’s office has accused Rands of illegally refusing to remove himself from handling more than 100 criminal cases and has requested a higher court to take emergency and extraordinary measures to resolve the situation.

At the same time, an attorney for Rands has accused the prosecutor’s office of attempting to intimidate Rands and by extension, District Court as a whole.

In a Friday, Jan. 27, hearing, Whatcom County Superior Court Judge Rob Olson said in his nearly 30 years practicing law in Whatcom County, he’s never experienced a situation or case like this.

Olson issued an order vacating a temporary restraining order issued against Rands last week, and issued a new one that expires within 14 days. The temporary order bars Rands from handling more than 100 District Court cases, but allows Whatcom County District Court Judge Angela Anderson to preside over the cases Rands is temporarily restricted from hearing.

Case background

Whatcom County Deputy Prosecuting Attorney Levi Uhrig filed a petition Jan. 20 seeking writs of mandamus and certiorari from Whatcom County Superior Court.

If granted, the writ of mandamus would require Rands to recuse himself from presiding over roughly 123 criminal cases, while the writ of certiorari would void any action or rulings made by Rands in the cases after the county prosecutor’s office requested he not hear them, according to records filed in Whatcom County Superior Court.

“Like a writ of certiorari, a writ of mandamus is an extraordinary remedy which should be granted sparingly,” Uhrig’s writs petition states.

The same day, a temporary restraining order was issued against Rands, barring him from handling the roughly 123 criminal cases the prosecutor’s office requested he recuse himself from hearing.

Stephen Hayne, Rands’ former attorney in the matter, filed a motion Friday, Jan. 27, requesting the temporary restraining order against Rands be vacated.

In the motion, Hayne stated that the requirements for issuing a temporary restraining order were not met and that the actions taken by the prosecuting attorney’s office were an attempt to intimidate Rands and suggested “dubious” motives, according to the court records.

“The Whatcom County Prosecutor’s actions raise serious and uncomfortable questions that should be of concern,” Hayne’s motion states.

Friday appointments

At Friday’s hearing, Judge Olson also appointed Shane Brady as special prosecuting attorney for Whatcom County District Court and Rands.

Per state law, a county prosecutor’s office has to represent city, county and judicial officials, among others, when they’re named as parties in a lawsuit. Because there’s a conflict of interest in the current case, Brady was appointed as a special prosecutor to represent Rands and District Court.

Hayne also withdrew as Rands’ attorney at Friday’s hearing.

A hearing will be held Feb. 6 where attorneys will make arguments regarding the merits of the temporary restraining order and the petition for the writs.

Brady declined to comment on the pending litigation when reached by The Bellingham Herald Friday evening.

When reached by phone Friday evening, Whatcom County Prosecuting Attorney Eric Richey said responses to the allegations, information regarding the situation and the actions he and his office took will be filed as legal responses in the case early next week.

The Herald has also asked Rands for comment.

Rands was elected to the District Court bench after winning the November election with 62.3% of the vote. Rands took the oath of office and was sworn in as judge on Jan. 9. He took over the caseload of his predecessor, former Judge Matthew Elich, who retired.

Whatcom County District Court consists of two elected judges who serve four-year terms and preside over cases that include criminal misdemeanors, no-contact orders, general civil actions, small claims and infractions, such as traffic tickets and code violations.

Affidavits filed

Between Jan. 13 and Jan. 18, the Whatcom County Prosecuting Attorney’s Office filed affidavits of prejudice against Rands in around 123 criminal cases, according to Uhrig’s petition.

Affidavits of prejudice are filed against judges in cases where attorneys don’t believe they can have an impartial trial or hearing before the judge, according to Washington state law and Washington state court rules regarding the disqualification of judges.

Affidavits of prejudice have to be filed within 10 days after an accused person’s arraignment hearing, unless a particular incident, conversation or utterance from the judge arises after the 10-day window, the court rules state. In courts with more than one judge, such as Whatcom’s District Court, the 10-day window starts on the date when an attorney has “actual notice of assignment or reassignment” of the case to that specific judge, the court rules state.

While Rands was presiding over an omnibus calendar on Jan. 17, he did not remove himself from handling the cases where affidavits of prejudice had been filed against him, according to Uhrig’s petition.

Rands ruled that the affidavits were untimely. While they were filed within 10 days after he was sworn in as judge, Rands said the prosecutor’s office had “reasonable notice” all of the cases were being reassigned to him before he took office, “inferring that any affidavits should have been made within 10 days of him winning the 2022 election or the auditor certifying the results of the 2022 election,” the writs petition states.

Rands then ruled in some of the cases the prosecutor’s office had sought to disqualify him from hearing, the records state.

In his petition for the writs, Uhrig stated that the prosecutor’s office didn’t have notice the cases were reassigned to Rands until Jan. 9 — the date which Rands took the oath of office. Rands didn’t begin his duties as judge until he took office, according to Uhrig’s petition.

“Judge Rands’ implicit assertion that the State would have had to file affidavits against him while he was still an attorney and not yet a judge inexcusably bestows duties of judicial office upon individuals who have not taken the judicial oath, have not entered their term of office, and who are explicitly barred by statute from assuming full-time judicial office,” the petition states.

Uhrig wrote that Rands was attempting to retroactively extend his term of office to include the time prior to taking the judicial oath, and that Rands’ arguments for the dates by which the prosecutor’s office had notice of the cases being reassigned “should reveal the extraordinary and unlawful nature of what Judge Rands is attempting to do.”

Uhrig requested the Superior Court order Rands to recuse himself from handling the 123 criminal cases where affidavits of prejudice have been filed against him and to void any rulings made by Rands after he declined to remove himself from hearing the cases, the court records show.

Uhrig declined to comment due to the pending litigation when reached Thursday, Jan. 26, by The Herald.

Denial explained

In a written response filed with the court Jan. 18, Rands explained his decision in denying to recuse himself from handling the cases.

Rands wrote that the caseload assigned to former Judge Elich would remain with the judge who succeeded Elich after his retirement.

Rands also stated that it’s a judge’s duty to determine whether a motion to disqualify a judge is timely filed and meets the required basis for an affidavit of prejudice. Just because a motion is filed to disqualify a judge does not mean the judge is automatically disqualified, Rands wrote in his decision denying recusal.

Rands said the prosecutor’s office filed affidavits of prejudice against him in 50 cases on Jan. 13 and that all 50 of the cases had previously been assigned to Elich.

Rands argued that the prosecutor’s office had 10 days from three possible dates in which they could timely file affidavits of prejudice against him, the court records state.

Those dates, Rand argued, are Nov. 9, the date after the election results were known; Nov. 29, the date in which the election results were certified by the Whatcom County Auditor’s Office; or Dec. 29, the date when Elich stated in court that all trials in cases assigned to him would be handled by Rands, his successor, as of January 2023, the records state.

Rands stated that many of the criminal cases where prosecutors had filed affidavits of prejudice against him likely involved breath tests. He said several of the cases ‘”might’ be ripe’ for motions to be filed in them alleging that the software used by breath tests machines, and whose results are often entered by prosecutors in drunken driving cases, doesn’t follow state law.

In his denial of disqualification, Rands said he never handled any of the cases while he was an attorney. Rands previously had his own multi-county DUI defense law firm, The Herald previously reported.

Rands said if a motion regarding the breath tests were to be filed in one of the cases, he would voluntarily recuse himself from hearing that particular motion “due to the appearance of fairness,” but would not recuse himself from the case entirely, the court records state.

“It is this Court’s desire to serve in a manner that is above the minimum ethical threshold. If this Court is to promote confidence, independence, integrity and impartiality and the ‘newspaper test’ I believe it prudent to not preside over the (breath test) motion, and I will recuse myself from hearing that motion. However, I will not recuse myself from the entirety of each case,” Rands stated in his ruling denying disqualifying himself from handling the affidavited cases.

Restraining order

Uhrig, the prosecutor, also filed a motion on Jan. 20 requesting a temporary restraining order be issued against Rands.

Uhrig’s motion argued that Rands unlawfully declined to recuse himself from hearing the affidavited cases, and in doing so, violated the rights of Washington state and harmed the accused peoples’ rights to a fair trial by a judge with lawful authority to act, the court records show.

The prosecutor’s office requested an ex parte temporary restraining order against Rands, meaning the motion and decision to grant the restraining order were done without providing notice to or requiring Rands and District Court to be present, the court records state.

District Court had not been given notice of the request for the restraining order at the time the motion was filed “due to the extremely urgent nature of the” request, the court records state.

By 12:15 p.m. on Jan. 20, a panel of three of the four sitting Whatcom County Superior Court judges had granted the temporary restraining order, court records show. The fourth judge recused herself from hearing the matter, records state.

The restraining order temporarily prohibits Rands from taking any action in the 123 affidavited criminal cases. The restraining order expires after 14 days, unless the order is extended or the writs of mandamus and certiorari are granted, the court records state.

In its reasoning for granting the temporary restraining order ex parte, the panel of judges wrote that “it clearly appears that immediate and irreparable damage” would be done to the rights of Washington state if the panel of judges had to wait to issue a decision on the temporary order until Rands’ and District Courts’ arguments against the order could be heard.

The panel of three of the four Superior Court judges then ordered that it would hear arguments related to the temporary restraining order on Friday.

At Friday’s hearing, the matter was continued until Feb. 6, at which time arguments regarding the writs of mandamus and certiorari will also be heard, the court records state.

Intimidation concerns

In his request to vacate the temporary restraining order filed Friday, Hayne, Rands’ former attorney, wrote that the affidavits of prejudice were not timely and that the county prosecutor’s office took steps to intimidate and retaliate against Rands due to personal or political motivations.

Hayne said the rules for assigning court cases in Whatcom County District Court are well established and that cases stay with the judge they’re assigned to after an accused person’s arraignment, unless there is a legitimate reason to disqualify a judge from hearing a case.

Hayne said since Rands won the election on Nov. 9, clerks within District Court have announced that individual cases would be assigned to either Whatcom County District Court Judge Angela Anderson or Rands, the court records state. Hayne also said that the retiring judge also made comments that cases after the start of the new year would be handled by Rands. All of this gave the prosecutor’s office “actual notice” that Rands would be assigned these cases, starting the 10-day time frame for filing affidavits of prejudice, Hayne’s motion states.

Hayne wrote that notice of the temporary restraining order was required to be given to Rands, who is the person affected by the order. He said that presenting the order ex parte was done deliberately by the prosecutor’s office, denying Rands, and District Court, an opportunity to be heard on the matter before the temporary restraining order was issued, court records show.

Hayne also wrote that the prosecutor’s office didn’t offer an explanation as to why it couldn’t have notified Rands or another District Court official, that there were ample opportunities to do so — including a personal meeting held between Rands and Whatcom County Prosecuting Attorney Eric Richey late last week — and that details of the supposed harm that would be caused by delaying the signing of the order until a hearing could happen were not included.

Hayne’s motion also included a declaration from Rands that states that the prosecutor’s office filed more than 50 affidavits of prejudice late in the afternoon on Jan. 13. The prosecutor’s office then filed around another 50 on Jan. 17, and a third set of around 50 later that same day, the court records state.

Rands stated that after the first batch of affidavits were filed, he did some research and ultimately concluded they were not filed in a timely manner. When he next appeared in court to handle a calendar on Jan. 17, Rands gave an oral ruling stating that he would not recuse himself from hearing the cases because the affidavits were untimely. Rands then issued his written order of denial the following day, on Jan. 18, according to court records.

Rands stated that on Jan. 19, Richey emailed him asking if Rands had a “few minutes to talk,” the records state. The pair emailed and ultimately Richey said he would come to Rands’ judicial chambers at 10 a.m. on Jan. 20 to talk.

Rands wrote in his declaration that during the meeting, Richey said he had just become aware of the roughly 123 affidavits of prejudice filed by his attorneys against Rands and stated that “we don’t want to do this,” according to court records.

Rands said Richey then told him the prosecutor’s office needed to give him a chance and that they would not be filing batches of dozens of affidavits like this in the future, the records show.

Rands said Richey said “we want to and we will give you a chance,” before Richey then said “he ‘had the power to make it stop’”, according to court records.

Rands said Richey told him that some of his lawyers wanted to go after a Superior Court judge in a similar way, but that Richey would not let them, the records state.

In less than two hours after the face-to-face meeting between Rands and Richey, the temporary restraining order had been filed against Rands, the records show.

Rands said the prosecutor’s office has not stopped filing affidavits of prejudice against him and had done so as recently as Wednesday, Jan. 25, according to court records.

In his motion to vacate the restraining order, Rands’ former attorney, Hayne, said the facts demand the Superior Court judges consider whether there is a potential personal or political motivation by Richey and the prosecutor’s office to punish or intimidate Rands because Rands won his election against a Whatcom County prosecuting attorney.

Hayne said that Richey’s request to meet privately with Rands while a separate attorney in his office prepared a temporary restraining order and presented it to Superior Court judges ex parte, Richey’s decision to not mention the order during his meeting with Rands, and the prosecutor’s office’s decision to not give notice to Rands or District Court that a request for a temporary restraining order was being prepared, suggested “dubious” motives, the court records show.

“The manner in which the Prosecutor presented the (restraining order), intentionally making sure (Rands) had no opportunity to protest, creates the appearance of an interest to intimidate Judge Rands, and by extension the entire Whatcom County District Court. Perhaps the State’s hands are entirely clean, but its methodology was both legally impaired and entirely unworthy of “the State” and the voters who the Prosecutor’s Office purports to represent,” Hayne’s motion states.

The Herald has asked Richey for comment.

Ethics opinions, reactions

When asked by The Herald Thursday about the unfolding situation and its impacts on people who are represented by public defense attorneys, Whatcom County Public Defender’s Office Director Starck Follis said “this is an unfortunate situation that puts a judge who was recently elected by the people of Whatcom County off cases by the prosecuting attorney’s office.”

“It also greatly shifts caseloads to the other judge in District Court, making calendars difficult and awkward,” Follis said.

The Herald has asked Anderson, the other Whatcom County District Court judge, for comment.

When reached by phone Friday evening, Hayne said there were zero legitimate reasons in his opinion for why the prosecutor’s office issued the affidavits against Rands. The prosecutor’s office had an obligation to give Rands a chance to demonstrate what kind of judge he’d be, Hayne said, adding that the office’s actions have been dishonorable since Rands denied disqualifying himself in the cases.

Hayne said he attempted to work with the prosecutor’s office to resolve the issues earlier this week, but those attempts were unsuccessful. Hayne said the situation is now damaging the relationship between the prosecutor’s office and Whatcom’s District Court.

“The manner in which (Richey) chose to fight this fight, in my opinion, is an embarrassment to the prosecutor’s office,” Hayne said, adding that this situation is unprecedented and something he has never seen in his nearly 50 years of practicing law.

Hayne said the evidence in the case raises legitimate questions regarding whether there was an attempt to intimidate Rands and whether an actual emergency existed that required the filing of the petition for the writs and request for a temporary restraining order.

At Friday’s hearing on the matter, Uhrig, the deputy prosecutor, asked the judge to throw out Hayne’s motion and Rands’ declaration filed in the case. Uhrig argued that Rands was not a named party in the matter and therefore did not have an interest in the outcome of the case or have a right to an attorney. Uhrig said that Whatcom County District Court was the sole named party in the case, and Rands’ declaration in the matter was inappropriate.

Olson, the judge, noted Uhrig’s objections, but stated that even if Rands never intervenes as an individual party in the case, everyone always has a right to a lawyer.

Olson said he took Hayne’s appointment as an emergency attorney for Rands in this matter as just that.

“Let’s say you or anybody had been put in this position where you’re accused, your integrity is under attack, your entire duties as a judge is under attack, and then they say you can’t respond and you have no right to be heard? That is the most egregious act of sophistry I’ve heard in 47 years of litigation in courts throughout the state — and I mean that,” Hayne said in a phone call.

Richey told The Herald Friday evening that responses to the situation and Hayne’s allegations, as well as information on the actions he and his office took, are in process and will be filed as legal responses in the case next week.

The Herald has also asked the Washington State Administrative Office of the Courts District and Municipal Court Judges’ Association and the Washington State Commission on Judicial Conduct for comment.

The Herald also reached out to the state administrative courts office’s Ethics Advisory Committee, which gives judicial officers advice on the state’s code of judicial conduct.

In response to The Herald’s questions regarding whether the ethics advisory committee had issued opinions related to the timeliness of affidavits of prejudice filed after a new judge has been elected and takes the bench; the date by which the state or prosecutor’s office is “on notice” for filings once a new judge has been elected to the bench; or what the time frame is for when a judge’s duties begin after winning a local election for a seat on the bench, an administrative office of the courts official directed The Herald to a list of the ethics committee’s advisory opinions.

The issues facing Whatcom County’s District Court and Rands may involve an interpretation of state laws and court rules, according to Tom Creekpaum, manager of the Office of Legal Services and Appellate Court Support within the state Administrative Office of the Courts.

Advisory opinions from the ethics committee don’t consider legal issues, Creekpaum said.

It does not appear any of the advisory opinions from the ethics committee directly refer or relate to a situation similar to the one facing Whatcom’s District Court.