AN ACT Relating to disqualification of judges; amending RCW 4.12.040 and 4.12.050; and repealing RCW 3.20.100.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 1, chapter 121, Laws of 1911 as last amended by section 1, chapter 15, Laws of 1989 and RCW 4.12.040 are each amended to read as follows:

(1) No judge of a superior court or a court of limited jurisdiction of the state of Washington shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is biased or prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge in judicial districts where there is more than one judge shall forthwith transfer the action to another department of the same court, ((~~or call in a judge from some other court~~)) which judge shall proceed to hear the matter.

In all judicial districts where there is only one judge, a certified copy of the motion and affidavit filed in the cause shall be transmitted by the clerk of the superior court to the clerk of the superior court designated by the chief justice of the supreme court. Upon receipt the clerk of said ((~~superior~~)) court shall transmit the forwarded affidavit to the presiding judge who shall direct a visiting judge to hear and try such action as soon as convenient and practical.

(2) The presiding judge in judicial districts where there is more than one judge, or the presiding judge of judicial districts where there is only one judge, may send a case for trial to another court if the convenience of witnesses or the ends of justice will not be interfered with by such a course and the action is of such a character that a change of venue may be ordered: PROVIDED, That in criminal prosecutions the case shall not be sent for trial to any court outside the county unless the accused shall waive his right to a trial by a jury of the county in which the offense is alleged to have been committed.

Sec. 2. Section 2, chapter 121, Laws of 1911 as last amended by section 1, chapter 148, Laws of 1941 and RCW 4.12.050 are each amended to read as follows:

((Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: PROVIDED, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion, but the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail, shall not be construed as a ruling or order involving discretion within the meaning of this proviso; and in any event, in counties where there is but one resident judge, such motion and affidavit shall be filed not later than the day on which the case is called to be set for trial: AND PROVIDED FURTHER, That notwithstanding the filing of such motion and affidavit, if the parties shall, by stipulation in writing agree, such judge may hear argument and rule upon any preliminary motions, demurrers, or other matter thereafter presented: AND PROVIDED FURTHER, That no party or attorney shall be permitted to make more than one such application in any action or proceeding under this section and RCW 4.12.040.)) (1) Any judge of the superior court or a court of limited jurisdiction shall enter an order of disqualification in any proceeding in which the judge's impartiality might reasonably be questioned.

(2) The judge shall also enter an order of disqualification in the following circumstances:

(a) Where the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) Where in private practice the judge served as a lawyer in the matter in controversy, or a lawyer with whom he or she previously practiced law served as a lawyer in the matter or such lawyer has been a material witness concerning it;

(c) Where the judge has served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(d) The judge knows that he or she individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(e) The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

(3) A judge should always be informed about the judge's personal and fiduciary financial interests, and make a reasonable effort to be informed about the personal financial interests of the judge's spouse and minor children residing in the judge's household.

(4) Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this section.

(a) "Personal bias or prejudice" includes only the individual person, party, attorney, or cause of action and must be based on a specific statement or expression of opinion or bias or prejudice by the judge directed at the individual, attorney, party, or interest.

(b) "Proceeding" includes pretrial, trial, appellate review, or other stages of litigation.

(d) "Fiduciary" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a financial interest in such securities unless the judge participates in the management of the fund; (ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a financial interest in securities held by the organization; (iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a financial interest in the organization only if the outcome of the proceeding could substantially affect the value of the interest; (iv) ownership of government securities is a financial interest in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(5) Any party to or any attorney appearing in any action or proceeding may establish bias or prejudice by filing a motion which must be supported by an affidavit stating the specific basis of the alleged bias or prejudice of the challenged judge against the party, the attorney, or the interest.

(a) Such motion and affidavit shall be brought to the attention of the judge before the judge shall have made any ruling whatsoever in the case involving use of discretion by the judge. The arraignment of the accused, the setting of the case for trial, or the setting of a hearing on a motion or fixing the amount of the bail shall not be considered a discretionary ruling. If a judge has made a discretionary ruling prior to bringing the motion or bringing the motion to the attention of the judge, the motion to disqualify shall be denied. The motion to disqualify shall not be denied on the basis of the judge having made a discretionary ruling if: (i) The specific event on which the challenge is based shall have occurred subsequent to such ruling; or (ii) it is alleged and established that the challenging party did not learn of the basis for the challenge prior to the discretionary ruling.

(b) In the event that a challenged judge does not enter an order of disqualification or enters an order denying the motion, then a party to an action or an attorney appearing in such action may request that a hearing on the motion be held. Failure to request a hearing under this section will be deemed a waiver of the challenge previously filed. Such hearing shall be set before a judge of the same level of court as the judge being challenged, but shall not be heard by the judge being challenged.

(c) The judge hearing the motion for disqualification may decide the matter on the affidavits filed or take such other testimony or evidence as the judge shall deem necessary to make a decision. The motion to disqualify shall be granted only if the hearing judge finds that a personal bias or prejudice exists against the individual person, attorney, party, or interest.

(6) No justice, judge, or magistrate shall accept from the parties to a proceeding a waiver of any ground for disqualification unless a full disclosure and waiver shall be made on the record.

NEW SECTION. Sec. 3. Section 2, page 88, Laws of 1867, section 1938, Code of 1881, sections 2, 3, page 8, Laws of 1881, section 1, chapter 126, Laws of 1943 and RCW 3.20.100 are each repealed.