In the Matter of the Marriage of: Brita Gulseth & Andrew Gulseth ( 2020 )

FILED
MAY 12, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of )
) No. 36549-2-III
BRITA GULSETH, )
)
Respondent, )
)
and ) UNPUBLISHED OPINION
)
ANDREW GULSETH, )
)
Appellant. )
SIDDOWAY, J. — Andrew Gulseth appeals an order of reassignment of a
commissioner to this family law matter. His lawyer, Craig Mason, in his own right,
appeals a CR 11 sanction. While the order of reassignment is not an appealable order
under RAP 2.2, the sanction, which is appealable, depends on the procedural propriety of
the reassignment. We affirm.
PROCEDURAL BACKGROUND
Brita Gulseth petitioned for divorce from Andrew Gulseth. A case assignment
notice issued pre-assigning the matter to Judge Ellen Clark and Commissioner Michelle
Ressa. Two weeks later, Ms. Gulseth filed a motion for temporary orders, setting the
motion for Friday, November 30, 2018.
No. 36549-2-III
In re Marriage of Gulseth
Mr. Gulseth’s lawyer, Craig Mason, was aware that Commissioner Ressa did not
hear family law motions on Friday and apparently suspected the case was being
reassigned. On November 19, Mr. Gulseth filed a declaration objecting that the hearing
was set for the wrong day, stating, “I have not been served with any motion to change my
commissioner.” Clerk’s Papers (CP) at 25. He filed a memorandum the next day,
arguing that a notice of disqualification cannot be filed against a court commissioner and
recusal is required only if a judicial officer is biased against a party or the officer’s
impartiality reasonably may be questioned.
On November 28, Mr. Gulseth filed an “Objection to ANY Change of
Commissioner without Motion, Notice or Hearing.” CP at 32. It acknowledged that his
wife’s lawyer, Matthew Dudley, “opposed Commissioner Ressa in a legal matter some
years ago,” but stated that “[t]his one legal event of Commissioner Ressa’s dissolution
does not dwarf the law, nor allow Mr. Dudley a unilateral right of sub rosa commissioner
selection.” Id.
As anticipated by Mr. Gulseth, on November 28, an order assigning/reassigning
commissioner was filed, reassigning the matter from Commissioner Ressa to
Commissioner Jacqueline High-Edward. The order stated that the reassignment was
made “[u]pon motion of the court,” the reason being “[c]onflict of interest.” CP at 30.
Mr. Gulseth appealed the reassignment order by filing a motion for revision.
2
No. 36549-2-III
In re Marriage of Gulseth
When the motion for revision was heard by the trial court, it was confirmed that
the reassignment was based on Mr. Dudley’s representation of Commissioner Ressa’s ex-
husband in a marital dissolution action. The trial court denied the revision motion,
explaining in its oral ruling that “this reassignment was an administrative act, it was not a
discretionary act by any judicial officer.” CP at 96.
Ms. Gulseth had argued that the revision motion “should be . . . deemed frivolous
and imposition of sanctions considered.” CP at 60. The trial court awarded fees to Ms.
Gulseth’s lawyer of $300, identifying the fee award in its written order as a sanction. Mr.
Gulseth and Mr. Mason appeal the order on revision.
ANALYSIS
A local Spokane County Superior Court rule provides that upon the filing of a
petition for dissolution the clerk will assign the matter to a court commissioner and a
superior court judge. LSPR 94.04(c). It goes on to provide:
(1) Parties are required to set all hearings before the assigned judicial
officer(s).
(2) If the matter needs to be reassigned due to conflict, recusal or unified
family court principles, an order will be entered by the court.
LSPR 94.04(c) (emphasis added).
3
No. 36549-2-III
In re Marriage of Gulseth
Rule 2.11(A) of the Code of Judicial Conduct (CJC)1 provides, “A judge shall
disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned.” (Internal asterisk omitted). Comment [1] to the provision
observes that “[i]n many jurisdictions in Washington, the term ‘recusal’ is used
interchangeably with the term ‘disqualification.’” One circumstance calling for judicial
recusal is when “[t]he judge has a personal bias or prejudice concerning a party or a
party’s lawyer.” CJC 2.11(A)(1). “A judge’s obligation not to hear or decide matters in
which disqualification is required applies regardless of whether a motion to disqualify is
filed.” CJC 2.11, cmt. [2].
In State v. Rocha, a public trial case, this court observed in passing:
[E]very member of this panel is familiar with informal recusal requests
occurring outside of the courtroom. Many recusals also are handled
administratively, with clerk’s offices having lists of conflicts of interest for
judges who have named attorneys or parties whose cases they will not hear.
181 Wash. App. 833, 839, 327 P.3d 711 (2014) (emphasis added).
Commissioner Ressa is obliged by the Code of Judicial Conduct to recuse herself
in any proceeding in which her impartiality might reasonably be questioned. Mr. Gulseth
cites no authority that a party can challenge the judicial officer’s personal decision on that
score. As observed by this court in Rocha, it is commonly (perhaps universally) the case
that clerk’s offices have lists of conflicts of interest for judges who have named attorneys
1
The Application section of the CJC states a judge includes court commissioners.
CJC, Application at I(A).
4
No. 36549-2-III
In re Marriage of Gulseth
or parties whose cases they will not hear. 181 Wash. App. at 839. The Spokane County
local rules address administrative reassignment in the case of a judge’s decision to recuse
himself or herself, and they were followed: an order was entered that the case was being
reassigned on the court’s own motion for conflict of interest reasons. Mr. Mason was
aware of the reason for the recusal as revealed by Mr. Gulseth’s November 28
submission.
No notice of disqualification (formerly termed an affidavit of prejudice2) was filed
nor was there a motion for recusal, so the case law on which Mr. Gulseth relied in
challenging the order does not apply. In Rocha, for example, this court held that the
experience prong of the public trial “experience and logic” test “favors hearing recusal
motions in the courtroom.” Id. at 838-39. The term “litigated recusals” as used in that
decision refers to a party’s contested motion asking a judicial officer to recuse himself or
herself. It does not include a challenge, unsupported by legal authority, to a judicial
officer’s own decision to recuse.
Accordingly, there was no basis in fact or law for challenging the superior court’s
administrative reassignment. Mr. Gulseth argues that when his motion for revision was
heard, the reason for the administrative reassignment was elaborated on, which he
complains constitutes the consideration by the trial court of new and additional evidence,
2
RCW 4.12.050; see LAWS OF 2017, ch. 42, § 2.
5
No. 36549-2-III
In re Marriage of Gulseth
contrary to RCW 2.24.050. But any elaboration on the background of the order appears
to have been in an effort to dispel Mr. Mason’s misguided assumption that it was
something other than an administrative reassignment. The elaboration was not essential
to the decision or to supporting it on appeal; the order denying revision can be affirmed
on the basis of the earlier “records of the case” alone. Id.
Mr. Mason appeals the $300 sanction because the trial court did not enter findings
explaining why it was imposed. He points to Biggs v. Vail, a 1994 case involving
sanctions imposed under CR 11, in which the Supreme Court said “it is incumbent upon
the court to specify the sanctionable conduct in its order. The court must make a finding
that either the claim is not grounded in fact or law and the attorney or party failed to
make a reasonable inquiry into the law or facts, or the paper was filed for an improper
purpose.” 124 Wash. 2d 193, 201, 876 P.2d 448 (1994) (emphasis omitted); see accord
Dexter v. Spokane County Health Dist., 76 Wash. App. 372, 377, 884 P.2d 1353 (1994) (“If
an appellate panel cannot ascertain what reasons prompted a trial court’s ruling, it is
impossible to determine whether the ruling is based on tenable grounds or is manifestly
unreasonable.”).
More recently, our Supreme Court held that where a sanction is imposed under the
court’s inherent equitable powers to manage its own proceedings, we may uphold it
absent express findings if an examination of the record establishes that the court found
conduct equivalent to bad faith. State v. Gassman, 175 Wash. 2d 208, 211, 283 P.3d 1113
6
No. 36549-2-III
In re Marriage of Gulseth
conduct equivalent to bad faith. State v. Gassman, 175 Wash. 2d 208, 211, 283 P.3d 1113
(2012). It is a simple matter to identify the court's reasoning here. Mr. Gulseth
challenged an administrative reassignment of a judicial officer with no factual basis for
contending it was a sub rosa notice of disqualification and no legal basis for challengin'g
Commissioner Ressa's personal decision not to preside over matters in which Mr. Dudley
represents a party. The motion required Ms. Gulseth to defend the court's administrative
action against an unsupported attack. The imposition of a $300 sanction was not an
abuse of discretion.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
~c/h~%,~·
doway,J.
WE CONCUR:
Lawrence-Berrey, J.
7