                                                                           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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No. 32336-6-111
Grabicki v. Bays


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

                                             3
No. 32336-6-III
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 Wn.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

Wn.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 Wn.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

                                               4
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

                                              5
No. 32336-6-111
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 Wn. 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 Wn. 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.

                                              6
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.

                                             7
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.

                                                8
No. 32336-6-III
Grab icki v. Bays


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.




                                              9
