                                                                       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      and                                   )        UNPUBLISHED OPINION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.



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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 Wn. 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 Wn. 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.

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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 Wn.2d 193, 201, 876 P.2d 448 (1994) (emphasis omitted); see accord

Dexter v. Spokane County Health Dist., 76 Wn. 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 Wn.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 Wn.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.

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