                                                                                                         FILED
                                                                                                COURT OF APPEALS
                                                                                                    DNISICI j T1

                                                                                               2013 OCT 22      M 8: 5 5
    IN THE COURT OF APPEALS OF THE STATE OF WASHI. .                                                ON/
                                                                                                                 FII\   0

                                                DIVISION II                                     y
                                                                                                         DEPU

RITH KOK, individually and as administrator                                  No. 44517 - -II
                                                                                       4
of the Estate of SAMNANG KOK, deceased;
MAKAI JOHNSON -KOK, individually and as
a beneficiary of the Estate of SAMNANG
KOK; RORTH KOK, individually and as a
beneficiary of the Estate of SAMNANG KOK;
RY    SOU KOK, individually        and as a


beneficiary of the Estate of SAMNANG KOK;
KOSAL      KOK,      individually and as a
beneficiary of the Estate of SAMNANG KOK;
and  LISA KOK, individually and as a
beneficiary of the Estate of SAMNANG KOK;
                                                                        UNPUBLISHED OPINION
                                  Appellants,


        V.



TACOMA SCHOOL DISTRICT NO. 10, A
MUNICIPAL ENTITY UNDER THE LAWS
OF THE State of Washington; and DOUGLAS
SENGSABONG              CHANTHABOULY                and

 JANE            DOE"          CHANTHABOULY,

individually      and   the    marital    community
composed thereof;


                                         ondents.




          PENOYAR, J. —       The estate of Samnang Kok ( Estate) sued the Tacoma School District

 District) for negligence after Douglas Chanthabouly shot Kok in the hallway at Foss High

School.      To prevail in its negligence action, the Estate had the burden to show that the District

had some reason to believe Chanthabouly might be dangerous. The trial court granted summary

judgment for the District,     finding   that   Chanthabouly' s   actions were not    foreseeable. The Estate


appeals, arguing that foreseeability is an issue for the jury and that the trial judge, whose spouse

had previously represented the District on unrelated issues, should have recused herself under the
appearance of     fairness doctrine.     Because    Chanthabouly'   s   behavior   and medical records   did   not
44517 -4 -II



indicate that he was at risk for harming other students, we hold that the trial court did not err in

finding that his actions were not foreseeable by the District. Additionally, the trial judge did not

err by denying the Estate' s recusal motion because neither she nor her spouse has an interest in

the outcome of the present case. We affirm.


                                                        FACTS


          On January 3, 2007, Chanthabouly fatally shot Kok in the hallway at Foss High School.

The Estate brought this claim against the District, arguing that it was negligent by failing to

maintain a safe school environment and by enrolling a student with a severe mental illness.

I.        MEDICAL HISTORY


          Chanthabouly was diagnosed with paranoid schizophrenia following a suicide attempt in

January    2005.   At the time of his suicide attempt, doctors noted that he was hearing voices, that

he claimed to get into fights with people he did not know, and that his thoughts were illogical

and     his judgment bad.      After a brief hospitalization, Chanthabouly received 11 months of

outpatient mental    health   care   from Comprehensive Mental Health.'                His psychiatrists prescribed


him     antipsychotics,   which      he took in the morning            and   at    night,   to combat his auditory

hallucinations.     When Chanthabouly' s care at Comprehensive Mental Health ended in January

2006, his case manager stated that he was stable while on his medication; he occasionally heard

voices, but they did not tell him to harm himself and he was able to separate reality from

hallucinations.


          Chanthabouly' s medical records do not indicate that he was at risk for assaultive

behavior.      His mental health assessment, completed while he was receiving treatment following

his    suicide attempt,   states   that he "   has   never   been   assaultive    towards   others."   Clerk' s Papers



     Foss requested Chanthabouly' s records from the hospital and Comprehensive Mental Health.
                                                             2
44517 - -II
      4




 CP)    at   114.   His mental health counselor noted that while he continued to have post- treatment


auditory hallucinations,            they    were     not   usually commanding             or   threatening.       His psychiatrist


testified that she     did   not see     any indication that he          would     harm   others.     His medical records also


contain assessments           from Chanthabouly            and   his     mother.    Both of them indicated that he was


lonely and had difficulty getting along with his peers but that he did not get into fights or
arguments.




II.          SCHOOL HISTORY


             Chanthabouly         attended several     high   schools within        the District.      He started the 2002 -03


school year at Stadium High School, and then transferred to Foss, where his siblings were


enrolled.      Chanthabouly began the 2003 -04 school year at Mount Tahoma High School because

his   family     had   moved        into Mount Tahoma'           s    attendance     area.      He transferred from Mount


Tahoma to Oakland High School mid -
                                  school year, and remained at Oakland for the rest of the

        2
year.        Chanthabouly began the 2004 -05 school year back at Mount Tahoma, but, after his

suicide attempt, he transferred to Foss, where his younger brother was enrolled . He remained at
                                                                                3

Foss from April 2005 until January 2007.

             Chanthabouly' s school record does not contain any incidents of prior assaultive behavior.

His    suspension at    Stadium          was   for " defiance    of   authority"    and not     for   fighting.    CP   at   342.   He


complained of bullying while at Mount Tahoma, but his record does not show any acts on his

2
    Chanthabouly' s mother told his doctor that she moved him to Oakland after a gang of students
hit him in the back of the head. His sister testified that he transferred to Oakland because he was
having trouble with his school work.
3
    The transfer    request       form           If any behavior or attendance problems student will return to
                                         states, "

Mt Tahoma."            CP    at   353.     The Estate points to this as evidence of Chanthabouly' s behavior
problems.        But the note does not say that Chanthabouly' s problems involved fighting or violent
acts, and, since Chanthabouly was not transferred back to Mount Tahoma, it appears that he did
not have any behavior problems while attending Foss.
                                                                     3
44517 -4 -II




part.    Additionally, none of the staff noticed any violent behavior while Chanthabouly was at

Foss. His principal testified that Chanthabouly was never referred to him for disciplinary issues.

Similarly, his counselor stated that teachers would approach him if they were concerned about a

student    and   that    no    teachers     approached        him   about      Chanthabouly.             Chanthabouly' s teachers

reported that, although he had difficulty participating in class and finishing his assignments, he

was     cooperative      and      polite.   The school security officer testified that he did not have any

concerns about Chanthabouly prior to January 2007 and that, while he noticed Chanthabouly

talking and laughing to himself, he never witnessed Chanthabouly getting in fights with other

students or being bullied.

          In 2005,       Chanthabouly' s mother requested that Foss test him for special education

eligibility because he            was   struggling academically.               Foss determined that Chanthabouly was

 Emotionally / ehaviorally Disabled" and qualified for special education services to improve his
             B

classroom participation and written                language      skills.      CP   at   93.   As a result, he attended a daily,

one     hour   written   language       class   with    a special education              instructor. .   He wrote the following

paragraph as a        writing      assignment     for that    class: "   I   nevered [ sic]      try dirt. I know a sludge face

named Sam. He loves dirt. He eats dirt and he' s going to live in dirt. He says he' s going to live

there    forever.       I think      sludge     faces   are   weird."         CP    at    215.     His teacher    wrote, "   Good!


Interesting."    at   the   top   of the page.    CP    at   215.   She testified that she did not know who Sam was


and that there was nothing about the assignment that alarmed her.




                                                                    M
44517 -4 -II



III.         PROCEDURE


             The Estate filed a complaint against the District, alleging that it "was negligent by failing

to use reasonable care in maintaining a safe school environment" and by " enrolling an individual

whom they knew or should have known had substantial mental illness and as a result, extremely

dangerous          propensities."'     CP at 8.


             The District moved for summary judgment, arguing that Chanthabouly' s actions were not

foreseeable.             The trial court granted the District' s summary judgment motion and dismissed the

Estate'   s claims.          The Estate filed a motion for reconsideration, arguing that there were material

facts   at    issue regarding        foreseeability. While that motion was pending, the Estate' s attorneys

discovered that the trial judge' s spouse and his firm had represented the District in unrelated

matters.          The Estate filed     a motion   for   recusal.        The trial court denied the Estate' s motions for


recusal and reconsideration.               The Estate appealed both denials directly to the Supreme Court.

That court denied direct review and transferred the case to this court.


                                                             ANALYSIS


             I.            SUMMARY JUDGMENT


             We review an order granting or denying summary judgment de novo and perform the

same inquiry as the trial court. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P. 3d 574 ( 2006).

 A motion for summary judgment is properly granted where `there is no genuine issue as to any

material          fact   and ...   the moving party     is   entitled   to   a   judgment   as a matter of   law. "' Michak v.


Transnation Title Ins. Co., 148 Wn.2d 788, 794 -95, 64 P. 3d 22 ( 2003) ( quoting CR 56( c)).                             We


view the facts and any reasonable inferences in the light most favorable to the nonmoving party.

Michak, 148 Wn.2d at 794.



4 The other parties and claims were dismissed during the course of the suit.
                                                                   5
44517 -4 -II



         Il.          FORESEEABILITY


         The Estate argues that the trial court erred by granting the District' s summary judgment
                                                                                                    5
motion       because    forseeability     is generally           a question       for the   jury.        Because reasonable minds


would not differ in concluding that Chanthabouly' s acts were not foreseeable by the District, we

affirm the trial court.


         A school district is required to exercise reasonable carethat of a reasonably prudent

person       under    similar    circumstances —when                  supervising     students          within    its custody.   JN. v.


Bellingham Sch. Dist. No. 501, 74 Wn.                      App.    49, 57, 871 P. 2d 1106 ( 1994). "[                 A] school district


has the power to control the conduct of its students while they are in school or engaged in school

activities, and with        that   power goes         the responsibility          of reasonable supervision."             Peck v. Siau,


65 Wn. App. 285, 292, 827 P. 2d 1108 ( 1992).

         But the duty to exercise reasonable care extends only to risks of harm that are

foreseeable.         JN., 74 Wn.        App.    at   57.   A risk of harm is foreseeable if it is within the " general


field   of   danger    covered     by   the    specific     duty   owed
                                                                             by   the defendant."           J.N., 74 Wn. App. at 57

 quoting Maltman          v.    Sauer, 84 Wn.2d 975, 981, 530 P. 2d 254 ( 1975)).                                Intentional or criminal


conduct       may be foreseeable         unless       it is "   so highly extraordinary or improbable as to be wholly

beyond the       range of      expectability."         Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P. 2d

420 ( 1997) ( quoting Johnson                   v.    State,     77    Wn.    App.     934,    942,        894 P. 2d     1366 ( 1995)).


Foreseeability is normally a jury question, but it may be decided as a matter of law where

reasonable minds cannot differ. J.N., 74 Wn. App. at 57.


5 The Estate also argues that the trial court misinterpreted the scope of the District' s duty. But it
does    not    define the   scope used         by    the trial   court or argue       why the           scope was    incorrect. Rather,
the Estate' s argument in this section appears to be that it produced evidence sufficient to show
that the District should have known that Chanthabouly was dangerous.           That argument is
addressed in this section.
                                                                        el
44517 - -II
      4




            Division One of this court held that summary judgment was inappropriate where the

plaintiff had established that the harm was within the general field of danger and the defendant

school      district   could      reasonably have           anticipated    the offending      student' s actions.         J.
                                                                                                                           N., 74 Wn.


App.   at    62.     In J.N., a student was sexually assaulted by another student in the bathroom during

recess.     74 Wn.      App.      at   51.   The    court   held that the   general   field   of   danger —harm          by one student

to   another    in   accessible and unsupervised restrooms —                   was reasonably foreseeable by the district.

 N., 74 Wn.
J.                     App.    at      59 -60.     Additionally, there was evidence that the district knew of the

assaulting     student' s     dangerous            propensities.      N., 74 Wn.
                                                                     J.            App.       at   60. The district knew that the


student had significant behavioral problems, including physically assaulting other students; had a

possible      family history              of      sexual    abuse;   used    inappropriately        sexual    language;       and   was




determined to be " severely behaviorally disabled" by the school psychologist. J.N., 74 Wn. App.

at 52 -53.


            By contrast, we have held that summary judgment is appropriate where there is no reason

to   believe that      a school         district    should      have known   of a risk   to   students.      Peck, 65 Wn. App. at

287, 293.          In Peck,   a   librarian sexually            assaulted a student.     65 Wn.      App.    at   287.    We held that


there was nothing in the record to indicate that the district knew the librarian was a threat to

students.          Peck, 65 Wn.           App.      at   293.    We noted that a school district is required to protect


students from third parties' harmful actions, but it is not liable merely because such actions

occur.      Peck, 65 Wn.          App.       at   293.   Instead, the harmful activities must be foreseeable. Peck, 65


Wn. App. at 293.




                                                                       7
44517 - -II
       4




          Here,    the Estate has failed to show that the harm caused by Chanthabouly was

foreseeable.       It appears to argue that the general field of danger was allowing a schizophrenic

student   in the   general education population.        The Estate contends that Chanthabouly' s behavior.

at school and his schizophrenia diagnosis presented evidence from which the District should


have reasonably       anticipated   that   he   would engage    in   a violent act on school grounds.               Neither


Chanthabouly' s behavior at school nor his medical records indicated any assaultive behavior or

tendencies.       Moreover, the District did not have any information that Chanthabouly' s diagnosis

alone was an indication that he would be a danger to others if placed in the general education


population.




          Unlike the student in J. Chanthabouly' s behavior at school did not put the District on
                                 N.,
                                                                        6
notice   that he   would   act violently    toward   another student.       The Estate lists many facts which, it

argues,   show     Chanthabouly' s "       Violent Propensities."      Appellant'        s   Br.   at   14.   They point to

Chanthabouly' s 2002 suspension for defiance of authority, his being attacked by a group of

students at Mount Tahoma, his frequent school transfers, a line from the school psychologist in


his IEP file stating that he gets into fights with people he does not know, reports of him talking

and laughing to himself during school hours, a confrontation with a stranger at Sears, and a




6
    The Estate repeatedly refers to the lack of school records in this case, apparently based on
information it thinks should be in the records and a note from a Foss counselor in
Chanthabouly' s IEP folder stating that his file contains only enrollment paperwork and a few
other papers and      that she was unable to       find his    cumulative    file   at   his   other schools.     However,
the record in this case contains his high school grades, enrollment information, and disciplinary
actions. Further, there is no evidence that the District purposefully destroyed or withheld any of

Chanthabouly' s records.
                                                           8
44517 -4 -II



school     writing   assignment       referencing        a person named "      Sam."    None of these facts gave the


District   notice    that   Chanthabouly         might act   violently   at school.    There was no indication that he


might attempt to physically harm someone, let alone with a weapon, and many of these events

took place before his diagnosis or while health care providers were still adjusting his treatment.

           Moreover,        Chanthabouly' s schizophrenia diagnosis was not sufficient to place the

District   on notice        that he may     act    violently.     First, the District is not Chanthabouly' s medical

provider.     As the Foss       psychologist       testified, "   In a school setting we deal with the behaviors, not

necessarily the diagnosis."            CP   at    891.    Before January 2007, Chanthabouly' s behavior was not

assaultive, and the District could not reasonably anticipate that he would act violently at school.

Second,      even   his    medical providers       felt that he    was not at risk    for harming   others.   His medical


records    state    that    his hallucinations      were " not      usually   command    or   threatening."   CP at 112.


Although he had tried to harm himself, before January 2007, Chanthabouly had not tried to harm

another person, and his psychiatrist did not believe he was a threat to others.


           Further, as the District points out, his diagnosis alone is not a reason to exclude him from

a   public    education.        Both federal and state laws require public school districts to provide

appropriate education          to   students with        disabilities. See Americans with Disabilities Act of 1990


 ADA), 42 U. S. C. §           12132 ( " no      qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity ");




                                                                   0
44517 -4 -II



Rehabilitation Act, 29 U. S. C. § 794( a) ( "                 No otherwise qualified individual with a disability ...

shall, solely by reason of her or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial       assistance ");     Individuals           with   Disabilities     Education    Act ( IDEA), 20      U.S. C. §


1400( d)( 1)( A) (one of the purposes of this chapter is " to ensure that all children with disabilities


have     available     to them       a    free   appropriate      public    education ");   RCW 28A. 155. 010 ( " It is the


purpose of [this chapter]            to   ensure    that   all children with    disabilities ...   shall have the opportunity

for an appropriate education at public expense as guaranteed to them by the Constitution of this

state    and    applicable     federal laws. ").            To the maximum extent appropriate, the District shall


educate      children       with   disabilities in the          general     education   environment.'      WAC 392 -172A-


02050( 1);       WAC 392- 172A- 03090( 1)( d)                   and ( e);   20 U. S. C. §    1412( a)( 5)( A).   Because the


standard of reasonable care is that of a reasonably prudent person in similar circumstances, these

duties are relevant to whether the District exercised reasonable care.


          The Estate argues that Chanthabouly should not have been placed in the general

education environment. This contention ignores state and federal antidiscrimination laws and the


District'   s   duty   to   Chanthabouly.               The Estate emphasizes the deposition of Dr. Hamm, who


opined that Chanthabouly was a " high - isk individual" who should not have been in the general
                                      r

7
    Chanthabouly qualifies as an individual or student with a disability. Under the ADA and the
Rehabilitation Act, " disability"                is defined as " a physical or mental impairment that substantially
limits   one or more of        the   major       life   activities."   28 C. F. R. § 35. 104; 29 U.S. C. § 705( 20)( B); 42
U. S. C. § 12102( 1). Schizophrenia is a mental impairment that substantially limits brain function.
                                       v. Chevron Phillips Chem. Co., 834 F. Supp. 2d 528, 539
29 C. F.R. § 1630. 20)( 3)( iii); Garner
 S. D. Tex. 2011). Under the IDEA, a " child with a disability" includes a child with a serious
emotional disturbance who, because of the disability, requires special education and related
services. 20 U. S. C. § 1401( 3). Under state law, a " student with a disability" means a student
who, through an evaluation process, is determined to be eligible for special education due to a
disability. RCW 28A. 155. 020. Foss determined that Chanthabouly was eligible for special
education because he was emotionally and behaviorally disabled.
                                                                       10
44517 -4 -II



education population.           CP   at   697.   But Dr. Hamm stated that he had only general knowledge of a

school' s legal obligations and that he had not worked within the public school system. Thus, his


opinion does not take into account the District' s duties to Chanthabouly.

            The Estate also relies on literature describing warning signs for violent behavior and

argues      that   Chanthabouly      exhibited     many     of   the   signs.    In doing so, it ignores the cautions in the

literature    and relies on      warning     signs   that   are not supported         by   the   record.     The " Early Warning

Signs"      suggested     by   the Department        of   Education        caution    that "[ s] uch signs may or may not


indicate     a serious problem —          they do not necessarily mean that a child is prone to violence toward

self   or    others,"    and    that "    it is important to avoid inappropriately labeling or stigmatizing

individual         students   because they       appear   to fit   a specific profile."          CP   at   655.   Further, it warns


that " it is inappropriate —and            potentially harmfulto use the early warning signs as a checklist

against which         to match individual        children."      CP at 657.


            Additionally, some of the warning signs that the Estate claims are met are not supported

by evidence in the record. The Estate argues that Chanthabouly exhibited the following warning

signs: social withdrawal, feelings of isolation, being a victim of violence, little interest in school

and    poor        academic    performance,        written       and    verbal    expressions      of      violence,   a history of

discipline     problems, a      history    of violent and aggressive             behavior,   and      gang   affiliations.   There is


evidence that Chanthabouly was withdrawn and isolated and that he may have been the victim of

bullying, but his grades were improving, there are no written or verbal expressions of violence in

the record, he had only one disciplinary problem back in 2002 and none of his teachers at Foss

noted any disciplinary problems, he did not act violently toward others, and he was not in a gang.

            The District did not have evidence through either Chanthabouly' s behavior or his

diagnosis that he would act violently. Although the Estate argues that his diagnosis alone should
                                                                   11
44517 -4 -II




have alerted the District to the possibility of violent acts, this argument is not persuasive where

the District is staffed by educators, not medical professionals, and where the District owed a duty

to   Chanthabouly        to   educate     him   with   his   peers.    We affirm the trial court.


           III.        RECUSAL


           Finally, the Estate argues that the trial court judge should have recused herself under the

appearance of          fairness doctrine.           Because a reasonably prudent and disinterested person would

conclude that all parties received a fair, impartial, and neutral hearing, we affirm the trial judge' s

decision that recusal was not necessary.

           We review a trial judge' s decision whether to recuse herself to determine if the decision


was    manifestly       unreasonable           or   based    on untenable. reasons     or   grounds.       State v. Davis, 175


Wn. 2d 287, 305, 290 P. 3d 43 ( 2012); State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d


775 ( 1971).       A judicial proceeding satisfies the appearance of fairness doctrine if a reasonably

prudent and disinterested person would conclude that all parties obtained a fair, impartial, and

neutral    hearing.       Tatham     v.   Rogers, 170 Wn.             App.   76, 96, 283 P. 3d 583 ( 2012). "        The test for


determining whether the judge' s impartiality might reasonably be questioned is an objective test

that assumes that ` a          reasonable person            knows     and understands all    the   relevant   facts. "'   Tatham,


170 Wn.       App.      at    96 ( quoting Sherman            v.   State, 128 Wn.2d 164, 206, 905 P. 2d 355 ( 1995)


 quoting In       re   Drexel Burnham Lambert Inc., 861 F. 2d 1307, 1313 ( 2d                      cir.   1988)).   The asserting

party does not have to show actual bias; it is enough to present evidence of potential bias.

Tatham, 170 Wn.              App.   at   95.    The party must produce sufficient evidence demonstrating actual

or potential bias, such as personal or pecuniary interest on the part of the judge; mere speculation

is   not   enough.       In re Pers. Restraint of Haynes, 100 Wn. App. 366, 377 n.23, 996 P. 2d 637

 2000).

                                                                      12
44517 - -II
      4




           The Estate     argues       that this   case   is   similar        to Tatham.   In Tatham, Division Three of this


court held that the trial judge in a property distribution case should have recused himself on

appearance of fairness grounds where the judge and one of the attorneys had prior professional


and personal connections.                170 Wn.         App.   at    103, 107.      After the judgment, one of the parties


discovered that the attorney for the opposing party was a partner in the judge' s former firm, may

have represented the judge during a DUI arrest, served as the judge' s campaign manager,

designated the judge her attorney -in -fact, and was appointed county court commissioner by the

judge.     Tatham, 170 Wn.             App.   at   85.   Division Three noted. that most of these dealings required


disclosure, but      not recusal,        by    the trial judge.           Tatham, 170 Wn.       App.   at   103.   But, the trial


judge' s continuing service as the attorney' s attorney -in -
                                                            fact was a violation of the code of

judicial    conduct (     CJC)      and presented a reasonable concern about the judge' s impartiality.

Tatham, 170 Wn. App. at 104. Additionally, the court noted that any prejudice was amplified by

the   discretionary      nature of a         property distribution proceeding.               Tatham, 170 Wn.2d at 104 -05.


The court held that the challenging party demonstrated a violation of the appearance of fairness

doctrine    and    was   entitled   to   a new     trial before      a   different judge. Tatham, 170 Wn.2d 107.


           Here,    a reasonably prudent person would conclude that both parties obtained a fair

hearing. Although the trial judge ultimately dismissed the Estate' s complaint, she did enter some

orders   in its favor         during   the    proceedings.           For example, she granted the Estate' s motions for


continuance        and   to   compel      Chanthabouly' s            deposition.     Further, the trial judge is not directly

connected to the District, and the Estate has not shown that her spouse or his firm has any

interest in the outcome of the instant proceeding.




                                                                         13
44517 - -II
       4




          Additionally,      this   case       is distinguishable from Tatham. First, the connection between the


parties   and   the trial judge is         more     tenuous in this        case.       In Tatham, the trial judge had direct


connections      to   an   attorney appearing before the judge.                Here, the Estate does not allege a direct


connection between the judge and the parties or their counsel; rather, it alleges that the trial


judge' s spouse had previously represented the District.

          Second, the trial judge in this              case   did   not violate        the   CJC.   In Tatham, the trial judge


acted as            in fact for
           attorney - -                   one of    the attorneys        despite   a   CJC    provision   stating, " Judges shall


not serve as executors ...            or other fiduciaries, except for the estate, trust or person of members


of their families, and then only if such service will not interfere with the proper performance of

their judicial    duties."     Former CJC Canon 5( D) 1995.                    Here, although the Estate argued below


that the trial judge       violated   CJC 2. 11( A)(2)(       c) and ( 3),   which require a judge to disqualify herself

if she knows that she or her spouse have an interest that could be substantially effected by the

proceeding or an economic interest in the subject matter or parties to the proceeding, it did not

show    that the judge'      s spouse' s        interest   was more      than de   minimis.     8 The trial judge' s. spouse—

whose area of concentration               is   real estate   law —and his firm had represented the District only on

unrelated issues. Neither the judge' s spouse nor his firm has any interest in the outcome of this

proceedingthey are not involved in any way in litigating the present case and they will not

receive any fees relating to the case.




8
    Under CJC 2. 11( A)(2)(         c),   the interest must be more than de minimis, and comment 6 to CJC
2. 11   defines "     economic        interest"    as more than a de minimis legal or equitable interest.
According       to the CJC     terminology, " de minimis" means " an insignificant interest that could not
raise a reasonable question regarding the judge' s impartiality."
                                                                    14
445174II




        Finally,      the   nature of   the       proceedings was   different in   each case.   In Tatham, a property

division case, the trial judge had greater discretion in making his decision, and, on review, the

appellate court would          apply    a   deferential   standard of review.      By contrast, this case involved a

summary judgment            order, which appellate courts review           de   novo.   Therefore, the increased risk


of prejudice present in the Tatham case is not an issue here.

        Neither the trial judge nor her spouse has an interest in the outcome of the present case


and a disinterested person would conclude that the parties received a fair and impartial hearing.

We hold that the trial judge did not err by denying the Estate' s recusal motion.

        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                       YPVenoyar,
We concur:




        Johanson, A.C. J.



              r
                                              p




         3   orge.,    J.




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