      rnnv
       IN CLERKS OPPICE    X
                                                                 This opinion was
                                                                   filed for record
SUPRBI^ COURT,SXKIE OF WASWnrBN
                                                             at 5^on TVf.lA               ^
                                                               7/10/
      DATE
                   i-S.                                                   ...         .   —



                                                               Susan L. Carlson
        GMieFJUSriGE
                                                              Supreme Court Clerk




      IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 ROLFE and KIRSTINE
 GODFREY, husband and wife and
 their marital community composed
 thereof,

                  Respondents,               No. 96952-3


 V.



 STE. MICHELLE WINE ESTATES                  EN BANC
 LTD,dba CHATEAU STE.
 MICHELLE, a Washington
 Corporation; and SAINT-GOBAIN
 CONTAINERS,INC.,

                  Petitioners,
                                             Filed     DEC 1 9 im
 and


 ROBERT KORNFELD,

                  Additional Respondent.



          Gonzalez,J.—Those coming before the court have a fundamental right to

 an impartial decision-maker. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.
Godfrey v. Chateau Ste. Michelle, No. 96952-3


Ct. 1610, 64 L. Ed. 2d 182(1980)(citing Carey v. Piphus, 435 U.S. 247, 259-62,

266-67, 98 S. Ct. 1042, 55 L. Ed. 2d 252(1978); Mathews v. Eldridge, 424 U.S.

319, 348-49, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), and oyioCmg Joint Anti-Fascist

Comm. V. McGrath, 341 U.S. 123, 172, 71 S. Ct. 624, 95 L. Ed. 817(1951)

(Frankfurter, J., concurring)). To protect this fundamental right, Washington

statutes liberally allow litigants to disqualify a judge assigned to their case without

establishing actual prejudice—but, usually, only before that judge has made a

discretionary ruling or order in the case. Former RCW 4.12.040,.050 (2009);

Laws of 2009, ch. 332, § 20.'

       Under those statutes, though, a party does not lose the right to remove a

judge when the judge takes certain categories of actions, including arranging the

calendar. Former RCW 4.12.050. We hold that a stipulated order extending

discovery deadlines that does not delay the trial or otherwise affect the court's

schedule is an order arranging the calendar under former RCW 4.12.050.

Accordingly, the affidavit of prejudice was timely, and the case should have been

reassigned to a different judge. We affirm the Court of Appeals on different

grounds and remand for further proceedings consistent with this opinion.

                                           FACTS




'Former RCW 4.12.040 and .050 were substantively amended in 2017. Laws OF 2017, ch. 42.
This case is governed by former RCW 4.12.040 and .050, which were in effect during the trial
court proceedings in 2013 and 2014.
Godfrey v. Chateau Ste. Michelle, No. 96952-3


       A wine bottle shattered in Rolfe Godfrey's hand while he was working as a

bartender, injuring him. Godfrey filed a products liability lawsuit against the

winery, Ste. Michelle Wine Estates Ltd., and the bottle manufacturer, Saint-Gobain

Containers Inc.(collectively Ste. Michelle).

       The case was assigned to Pierce County Superior Court Judge Garold B.

Johnson, who set the initial case schedule, including discovery deadlines. The case

was later reassigned to Judge Katherine M. Stolz, who, upon a stipulated and

jointly proposed order, extended the parties' deadlines to disclose their witnesses.

This case turns on the nature of that stipulated order. Two months later, and before

Judge Stolz made any other rulings in the case, Godfrey filed an affidavit of

prejudice and a motion for Judge Stolz's recusal under former RCW 4.12.040 and

.050. Judge Stolz denied the motion, concluding that the earlier stipulated order to

extend witness disclosure deadlines involved discretion and, thus, the affidavit of

prejudice was not timely. Later, Judge Stolz presided over the bench trial. Ste.

Michelle prevailed, and Godfrey appealed.

       On appeal, Godfrey argued that the trial court erred in rejecting his affidavit

of prejudice and motion for recusal as untimely because Judge Stolz's order

extending witness disclosure deadlines was not an "order or ruling involving

discretion" under former RCW 4.12.050. He also argued that the trial court abused

its discretion by imposing certain sanctions following a discovery dispute late in
Godfrey v. Chateau Ste. Michelle, No. 96952-3


the pretrial phase.^ The Court of Appeals held the trial court erred in rejecting

Godfrey's affidavit of prejudice, reasoning that "[rjulings on pretrial stipulated

orders relating to scheduling and deadlines" are not discretionary for the purposes

of timeliness under former RCW 4.12.050. Godfrey v. Ste. Michelle Wine Estates

Ltd., No. 46963-4-II, slip op. at 5(Wash. Ct. App. July 19, 2016)(unpublished)

{Godfrey I). The Court of Appeals did not reach the sanctions issue.^ Godfrey I,

slip op. at 2 n.l.

       Ste. Michelle petitioned for review, which we stayed, pending our decision

in State v. Lile, 188 Wn.2d 766, 398 P.3d 1052(2017). Later, we remanded to the

Court of Appeals for reconsideration in light ofLile. Godfrey v. Ste. Michelle

Wine Estates, Ltd., 189 Wn.2d 1016 (2017). The Court of Appeals again

concluded that Godfrey's affidavit of prejudice was timely because the stipulated

order extending witness disclosure deadlines was not discretionary under Lile.

Godfrey v. Ste. Michelle Wine Estates Ltd., No. 46963-4, slip op. at 2(Wash. Ct.

App. Dec. 27,2018)(unpublished),

http://www.courts.wa.gov/opinions/pdf/D2%2046963-4-

II%20Unpublished%200pinion.pdf(Godfrey II). Ste. Michelle petitioned the



^ Because we affirm the Court of Appeals on the timeliness ofthe affidavit of prejudice, we do
not reach the issue ofthe discovery sanctions.
^ Komfeld appealed separately to contest his monetary sanction. The Court of Appeals vacated
his monetary sanction on the grounds that it was imposed after the trial court had erroneously
rejected Godfirey's affidavit of prejudice. Godfrey I, slip op. at 6.
                                                 4
Godfrey v. Chateau Ste. Michelle, No. 96952-3


court for review again, which we granted. Godfrey v. Ste. Michelle Wine Estates

Ltd., 193 Wn.2d 1013 (2019).

                                          ISSUE


      Is an affidavit of prejudice untimely under former RCW 4.12.050 when it is
submitted after entry of a stipulated order extending discovery deadlines?

                                       ANALYSIS


       Judges may be disqualified for prejudice. Our statutes set forth a mechanism

to disqualify a superior court judge without showing actual prejudice. Former

RCW 4.12.050; Lile, 188 Wn.2d at 774-75. At the relevant time, the statute

provided that a party could disqualify a judge by timely filing a motion supported

by an affidavit indicating that the party believes that it cannot have a fair and

impartial trial before that judge. Lile, 188 Wn.2d at 775. A timely affidavit of

prejudice must be granted. Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283,

291, 803 P.2d 798 (1991).

       To be timely, an affidavit of prejudice disqualifying the judge must be filed

      before he or she 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, ofthe hearing of which the
      party making the affidavit has been given notice, and before thejudge
      presiding has made any order or ruling involving discretion, but the
      arrangement ofthe calendar, the setting ofan action, motion or
      proceeding downfor hearing or trial, the arraignment ofthe accused
      in a criminal action or thefixing ofbail, shall not be construed as a
      ruling or order involving discretion within the meaning ofthis
      proviso.
Godfrey V. Chateau Ste. Michelle,'Ho. 96952-3


Former RCW 4.12.050 (emphasis added). In other words, an affidavit of prejudice

is timely if it is filed before the superior court judge makes any order or ruling

involving discretion. But certain judicial acts are carved out in the proviso,

including acts such as arranging the calendar. ld.\ State v. Dixon, 74 Wn.2d 700,

703, 446 P.2d 329(1968). Judicial acts that are carved out in the proviso are

exceptions that do not affect the timeliness of an affidavit of prejudice regardless

of whether they involve discretion. Former RCW 4.12.050.

       The Court of Appeals held that Godfrey's affidavit of prejudice was timely

because entry of the stipulated order extending the deadline for witness disclosures

was not discretionary under Lile. In Lile, we held that an order granting a joint

trial continuance motion was discretionary because the decision to grant or deny

such a request required the judge to '"consider various factors, such as diligence,

materiality, due process, a need for orderly procedure, and the possible impact of

the result on trial.'" Lile, 188 Wn.2d at 776 (internal quotation marks omitted)

(quoting Zfi re Recall ofLindquist, 172 Wn.2d 120, 130, 258 P.3d 9(2011)). In

Godfrey II, the Court of Appeals concluded that the order here was not




         The 2017 amendments to RCW 4.12.050, which became effective a few days after we
issued our decision in Lile, added "ruling on an agreed continuance" to the list ofjudicial acts
that do not result in the loss of the right to disqualification, "[e]ven though they may involve
discretion." Laws of 2017, ch. 42, § 2(2).
Godfrey v. Chateau Ste. Michelle, No. 96952-3


discretionary under Lile because it did not impact the functions or duties of the

court the way that an order extending a trial date did. Godfrey II, slip op. at 2.

       We affirm the Court of Appeals on different grounds. We conclude that

rulings on pretrial stipulated orders relating to scheduling and deadlines fall within

the exception for "the arrangement of the calendar." Therefore, the entry of the

stipulated order did not render Godfrey's affidavit of prejudice untimely.

       This is consistent with our analysis of the calendaring exception in Dixon,

where we held that multiple orders by a trial judge setting and renoting motion

hearing dates were "calendaring action[s]" within the statutory exception. 74

Wn.2d at 703. There, a defendant filed motions to dismiss and to suppress certain

evidence, and the State moved to renote the defense motions to an earlier hearing

date. Id. at 700-01. The judge heard arguments on the scheduling matter and

entered an order resetting the defense motions to a new hearing date. Id. at 701.

We held that the exception for arranging the calendar "clearly embraces" the

judge's orders setting, renoting, and resetting the pretrial motions. Id. at 703.

      It is also consistent with Court of Appeals opinions recognizing that orders

setting and changing pretrial deadlines are within the statutory exceptions. In In re

Marriage ofTye, the court held that "the ministerial acts of entering uncontested

case scheduling orders" were acts arranging the calendar. 121 Wn. App. 817, 821,

90 P.3d 1145 (2004). Similarly, in Hanno v. Neptune Orient Lines, Ltd., the court
Godfrey v. Chateau Ste. Michelle, No. 96952-3


concluded that setting and amending a pretrial order with dates for mediation,

settlement demand, and pretrial conference fell within the exception for arranging

the calendar and/or setting matters for hearing. 67 Wn. App. 681, 683, 838 P.2d

1144(1992), More recently, the court held that issuing an amended case

scheduling order upon remand of a case that had been on appeal was a calendaring

matter. In re Adoption ofA. W.A., No. 50598-3-II, slip op. at 4-5 (Wash. Ct. App.

July 3, 2018)(unpublished),

http://www.courts.wa.gOv/opinions/pdf/D2%2050598-3-

II%20Unpublished%200pinion.pdf. We agree that generating an uncontested case

scheduling order and making stipulated amendments to pretrial deadlines constitute

arranging the calendar within the meaning of former RCW 4.12.050.

       Accordingly, the judge's entry of the stipulated order extending witness

disclosure deadlines fell within the calendaring exception under former RCW

4.12.050. Even if it involves discretion, arranging the calendar is simply not a

judicial act that renders an affidavit of prejudice untimely. The subsequent

affidavit of prejudice was timely, and the superior courtjudgment is of no legal

effect. Harbor Enters., Inc., 116 Wn.2d at 285.

                                     CONCLUSION


       We hold that the calendaring exception under former RCW 4.12.050

encompasses a stipulated order extending discovery deadlines. Godfrey's
Godfrey v. Chateau Ste. Michelle, No. 96952-3


subsequent affidavit of prejudice and motion for recusal was therefore timely, and

the superior court judgment is void. The discovery sanctions issue is moot. We

affirm the Court of Appeals and remand to superior court for further proceedings

consistent with this opinion.
Godfrey v. Chateau Ste. Michelle, No. 96952-3




WE CONCUR:




                                            10
