Anthony Grabicki, ex rel v. Linda Bays

FILED
March 29, 2016
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
ANTHONY GRABICKI, UNITED )
STATES TRUSTEE, ) No. 32336-6-111
)
Respondent, )
)
v. )
) PUBLISHED OPINION
LINDA BAYS, AGENTS/SERVANTS OF )
LINDA BAYS, ANGELA THUNSTROM, )
WILLIAM KLINGER, SR., THE )
LINJERICKS SOCIETY, an unincorporated )
society, THE LINJERICKS SOCIETY, a )
corporation sole, THE SONLIGHT )
PATHWAY SOCIETY, a corporation sole, )
AND ALL SQUATTERS, TENANTS, OR )
OTHER UNKNOWN RESIDENTS, )
)
Appellants. )
KORSMO, J. -Linda Bays appeals a Stevens County order ejecting her from
property in the Kettle Falls area, claiming that the visiting judge who signed the order
was not shown to have been properly brought into the case. We reject this argument
because governing authority presumes that a visiting judge has been properly assigned to
act in the absence of contrary evidence-which we do not have in this case.
Accordingly, we affirm the judgment and also deny various motions brought by both
sides.
No. 32336-6-111
Grab icki v. Bays
FACTS
Respondent Anthony Grabicki served as bankruptcy trustee of the David Bays
bankruptcy estate. The bankruptcy court quieted title in the Kettle Falls property in Mr.
Grabicki as trustee over the objection of several people, including Ms. Bays. The trustee
then brought the current action for ejectment of the people living on the Kettle Falls
property in 2012.
Ms. Bays responded by filing a "cross claim" that added a number of other
individuals to the suit, including sotne Spokane County Superior Court judges. The two
tri-county judges then recused themselves from this action. Presiding Judge Ellen
Kalama Clark of the Spokane County Superior Court appointed first Judge John
Strohmaier 1 of the Lincoln County Superior Court, and subsequently, Judge David
Frazier of the Whitman County Superior Court to hear the case.
Judge Frazier presided over the matter and rejected Ms. Bays' prose argument,
made in the context of a claim that she had removed the case to federal court, that Judge
Frazier lacked authority to hear the case since he had not filed an oath as a judge pro
tempore. Report of Proceedings (RP) at 2-4. Judge Frazier indicated that he was acting
as a visiting judge in accordance with the assignment by Judge Clark. RP at 4. Judge
1 Our record suggests, but does not establish, that a party filed an affidavit of
prejudice against Judge Strohmaier.
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Clark had become involved after Judge Nielson asked the Stevens County court
administrator to confer with Spokane County Superior Court about finding a judge. Id.
Ms. Bays, the former wife of David Bays, defended the action on various theories
that attempted to collaterally attack the decision of the bankruptcy court as well as the
decision in her marriage dissolution case. Ultimately, Judge Frazier granted the order
ejecting Ms. Bays and the others from the property.
Ms. Bays appealed to this court. The parties filed several motions that are relevant
to this decision. Mr. Grabicki, after losing a motion to add evidence to the record on
appeal, successfully obtained an order granting accelerated review of the case in light of
its lengthy history. Our commissioner passed to the pariel a motion by Ms. Bays for
sanctions against the respondent.
ANALYSIS
The sole challenge presented by the appeal is to the authority of Judge Frazier to
hear the matter rather than to the substantive ruling evicting her from the property. In
light of the appellant having unsuccessfully argued a similar theory in the appeal to this
court of her dissolution action, respondent asks for sanctions for responding to a frivolous
appeal. We first address the appellant's argument.
Article IV, § 7 of the Washington constitution provides in part:
The judge of any superior court may hold a superior court in any
county at the request of the judge of the superior court thereof, and upon the
request of the governor it shall be his or her duty to do so. A case in the
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Grabicki v. Bays
superior court may be tried by a judge pro tempore either with the agreement
of the parties if the judge pro tempore is a member of the bar, is agreed upon
in writing by the parties litigant or their attorneys of record, and is approved
by the court and sworn to try the case; or without the agreement of the
parties if the judge pro tempore is a sitting elected judge anq is acting as a
judge pro tempore pursuant to supreme court rule .... However, if a
previously elected judge of the superior court retires leaving a pending case
in which the judge has made discretionary rulings, the judge is entitled to
hear the pending case as a judge pro tempore without any written agreement.
Similarly, RCW 2.08.150 provides in part: "Whenever a like request shall be
addressed by the judge, or by a majority of the judges (if there be more than one) of the
superior court of any county to the superior judge of any other county, he or she is hereby
empowered ... to hold a session of the superior court of the county the judge or judges
whereof shall have made such request."
An appellate court applies de novo review to the interpretation of both constitutional
provisions and statutes. State v. Bradshaw, 152 Wash. 2d 528, 531, 98 P.3d 1190 (2004).
The goal of statutory interpretation is to give effect to legislative intent, typically discerned
from the plain language of the statute. Tesoro Ref & Mktg. Co. v. Dep 't ofRevenue, 164
Wash. 2d 310, 317, 189 P .3d 28 (2008). Only if the statutory language is ambiguous does a
court tum to tools of statutory construction. Id. at 317-18. Similarly, words in a
constitutional provision are given their common and ordinary meaning. State ex rel.
Albright v. City of Spokane, 64 Wash. 2d 767, 770, 394 P.2d 231 (1964).
Ms. Bays argues that Judge Frazier acted without constitutional authority because
(1) he was assigned the case by a Spokane County judge rather than a Stevens County
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No. 32336-6-III
Grabicki v. Bays
judge, and (2) he did not take an oath as a judge pro tempore. We give short shrift to the
second argument because Judge Frazier expressly told Ms. Bays on the record he was
acting as a visiting judge rather than as a pro tempore. RP at 4. No party claims
otherwise.
The dispositive issue is whether Judge Frazier was acting as a visiting judge in
accordance with Article IV, § 7 and RCW 2.08.150. The specific issue here is whether
the source of his authority to act in a Stevens County matter had to be in the record. That
issue has twice before been decided.
The controlling case on the construction of the noted constitutional provision and
accompanying statute is State v. Holmes, 12 Wash. 169, 40 P. 735 (1895). There a
Spokane County Superior Court judge sat and heard a King County murder trial at the
request of a King County Superior Court judge. Id. at 171. The defendant did not
challenge the jurisdiction of the Spokane judge to hear the case and there was "nothing in
the record in this cause to show in what manner Judge Moore was authorized to hold
court in King county [sic] at the time of the trial of this case." Id. An after-the-fact
authorization was filed by the King County judge who issued the invitation, but the other
two King County judges denied joining in a request for the judge to visit. Id. at 171-72.
Our court decided that "it will be presumed that the court in each instance acted
within its jurisdiction, in the absence of an affirmative showing to the contrary." Id. at
173. The court further "observed that neither the constitution nor the statutes in this state
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Grab icki v. Bays
make provision for the spreading upon the record of the fact that the visiting judge has
been called to hold court either by the governor or by the judges in the county where the
term of court is held." Id. at 174. The burden was therefore placed on the party
contesting jurisdiction to present the issue to the trial court rather than first gamble on a
verdict before raising the jurisdictional challenge. Id. at 180.
Holmes remains good law. See State v. Hawkins, 164 Wash. App. 705, 711-12, 265
P.3d 185 (2011). 2 The sole distinction between this case and Holmes is that Ms. Bays did
raise, albeit in a muddled 3 form, a trial court challenge to Judge Frazier's authority to
hear the case. However, she did not present any evidence indicating that he had not been
properly requested to serve as a visiting judge. The order appointing Judge Frazier and
signed by Judge Clar~ was in the record, but the basis for Judge Clark's authority to act
was not. 4
2
In Hawkins, a visiting judge had ruled on a posttrial motion after the local judges
had all recused. 164 Wash. App. at 709. The following year another motion had to be
addressed and the visiting judge returned to rule on the new motion. Id. at 710. Division
One applied Holmes and ruled that the visiting judge had been appropriately requested in
the absence of evidence to the contrary. Id. at 712.
3
Her trial court argument appeared to assume that Judge Frazier had not been
properly requested by the Stevens County judges and was therefore, if anything, serving
as a judge pro tempore without having been agreed to by the parties or properly sworn by
the Stevens County judges.
4
The limited record before us does not indicate whether Judge Clark was
appointed by a Stevens County judge or how otherwise she was assigned the case.
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No. 32336-6-III
Grabicki v. Bays
We believe that Ms. Bays, in order to meet her burden under Holmes, needed to
present evidence indicating that she had reviewed the record and determined that no order
appointing Judge Clark was present in the court file or in some other manner to provide
affirmative evidence that Judge Clark was not authorized to act on the case. In other
words, Ms. Bays had to determine how the case had been assigned and then obtain
evidence from the actors to set the facts in the record that would demonstrate a visiting
judge had not properly been requested. She failed to present any affirmative evidence
and, hence, did not meet her burden under Holmes.
While we do not fault any of the judges or administrators who acted in this case,
we do suggest that counties that call upon visiting judges have appropriate orders of
appointment in the court file or otherwise respond to settle the record when a party
formally expresses concern over the authority of a visiting judge. We take notice that
visiting judges frequently decide matters outside of their home cou~ties, especially in our
rural areas. 5 The frequency of visiting judges suggests that well-practiced procedures are
in place to summon aid when a local judge cannot hear a case. It should be easy to
document the process when a litigant questions the visiting judge's authority.
5
Seven of the twenty counties in Division Three have only a single superior court
judge and six others have only two judges;_three of the remaining ~even counties have but
three judges. These limited numbers all but assure that the superior court judges of
eastern Washington will regularly need to assist neighboring counties.
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No. 32336-6-III
Grabicki v. Bays
We thus turn, briefly, to the motions before the court. Mr. Grabicki seeks attorney
fees for having to respond to a frivolous appeal. He points to the delaying tactics used by
Ms. Bays for several years, her presentation of a similar challenge (although resolved by
the evidence in the record) to a visiting judge's authority in the appeal of her marriage
dissolution case, and the fact that Holmes (and Hawkins) controlled the result of this case.
While we understand and share respondent's concern that this app~al, which does not
challenge the merits of the trial court's ruling, appears to have been brought primarily for
the purpose of delay, it was not without merit. Because we believed this case turned on
what Ms. Bays needed to do to meet her burden under Holmes after arguably raising the
issue to the trial court, we decline to find it frivolous.
The appellant's motion for sanctions is without merit. We do not see where
respondent used evidence that was not admitted in the other motion. Moreover, just
because evidence is not added to the record on appeal does not mean it is irrelevant for
other purposes. Ms. Bays has not demonstrated prejudicial error.
Finally, respondent asks that this court issue a nonappealable writ of restitution
requiring Ms. Bays to be off the property within 10 days of the issuance of the mandate in
this case. This motion, because it does not preclude hearing the case on the merits,
should not have been included in the brief. RAP 17.4(d). Assuming that this court had
the authority to issue such an order, it would not be necessary in this case since the
issuance of the mandate will result in the trial court's order of ejectment taking effect.
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No. 32336-6-III
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That Ms. Bays is still on the property, if she even remains there at this time, is by the
grace of the trial judge. A more rapid eviction order was appropriately addressed to the
trial court.
Affirmed.
WE CONCUR:
Pennell, J.
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