Power dispute between two Tacoma judges lands in front of state Supreme Court
A dispute between two Tacoma judges that involves the authority of a presiding judge is before the Washington State Supreme Court.
Municipal Court Judge David Ladenburg asked the high court for a ruling that would allow him to regain control of a domestic-violence case that he argued Municipal Court Presiding Judge Drew Henke improperly transferred to another courtroom.
The justices heard oral arguments earlier this month.
Attorney Phil Talmadge, who represented Ladenburg, told The News Tribune: “The presiding judges, in my view at least, should not have powers beyond those that are administrative in nature. ... They shouldn’t be acting as an appellate review body for their colleagues.”
Talmadge guessed there could be a decision from the Supreme Court in three to six months.
“The people of the City of Tacoma elect their judges,” he said..” ... As such, Judge Ladenburg is expected by the voters of the City of Tacoma to decide cases when those cases come to him, and he did.”
Asked if Henke or the city attorney representing her would like to comment, a city spokesperson said they wouldn’t comment about pending litigation.
A brief Henke filed in the case reads in part: “This petition does not involve any great legal question regarding judicial independence or depth of the Presiding Judge’s authority. Instead, the Petitioner filed the request with this Court in an attempt to maintain control over one of the few cases where he has not had an affidavit of prejudice filed against him, while at the same time attempting to avoid going before the Pierce County Superior Court, which previously overturned his finding of guilt and sentencing of the defendant in the underlying case at issue.”
The brief argued that Henke was “well within her authority” as presiding judge “to assign work to the judicial officers of the municipal court.”
The domestic violence case was assigned to Judge Ladenburg in 2017, and was continued, to eventually be dismissed if the defendant followed certain conditions.
The defendant later was charged with other domestic violence cases, which were assigned to different judges because the defense attorneys filed affidavits of prejudice against Judge Ladenburg, as Henke argues they’ve done in other cases in the past four years. An affidavit of prejudice allows an attorney, without cause, to disqualify one judge from hearing a case.
A declaration Ladenburg filed with the Supreme Court said in part that the Department of Assigned Counsel seems to have a blanket policy of filing those affidavits, and that for his first 13 years on the bench not many were filed against him.
“DAC’s concern is my oversight of probation,” the declaration said. “I take DV issues very seriously, and I hold offenders accountable within the bounds of the law. DAC does not like that.”
Asked about the affidavits of prejudice, Talmadge said: “I think they think that Judge Ladenburg is too aggressive in enforcing the domestic violence laws through the therapeutic courts model.”
Ladenburg revoked the defendant’s continuance based on the two new cases, found the defendant guilty and sentenced him in 2018, according to court records. The defendant appealed and the Superior Court reversed, finding that Ladenburg didn’t have the authority to do that without a prosecutor’s motion. The Superior Court remanded the case to Ladenburg, who reinstated the continuance.
“For over a decade, Judge Ladenburg has presided over Tacoma’s DV court, a therapeutic court ... which aims to curb DV recurrence by providing direct ‘bench monitoring’ and oversight of probationers,” Ladenburg’s Supreme Court brief said.
Then a fourth case was filed against the defendant, and a jury acquitted him in that matter.
Ladenburg held a hearing the same month, January 2020, at which he again revoked the defendant’s continuance in the initial case and scheduled a sentencing hearing.
“Judge Ladenburg desired and conducted an extensive fact-finding hearing involving the same subject matter tried in Case #4 (a case Judge Ladenburg could not be involved with because of the affidavit of prejudice filed against him by the public defender),” one of Henke’s Supreme Court filings said in part. “His intent was to review and reevaluate the evidence offered at trial, the same evidence that resulted in an acquittal.”
Talmadge noted the standard of proof to convict someone of a crime is different than what’s required to revoke someone’s probationary-like status.
After the hearing, Henke wrote in an email to Ladenburg Jan. 29, 2020 that she’d granted a defense motion to consolidate the defendant’s pending cases in front of another judge.
“The case is not properly before you and you should not proceed with a sanctions hearing,” the email said in part.
Ladenburg replied in part: “How this is not properly before my court is a mystery to me. I am not aware of any authority that would give you authority to remove a matter from my court, upon which I have exercised jurisdiction for several years, and act sua sponte (of her own accord) to vacate my findings I believe you would need my consent to take this action as to the matter pending in my court.”
Henke responded in part that the transcript of the revocation hearing showed the defense needed more time to prepare and that she told him to only proceed with the hearing if everyone was ready.
Henke went on to explain that she decided as presiding judge she had the authority to transfer all of the cases to Department 3, in front of Judge Dwayne Christopher. He, Ladenburg and Henke are the only judges on the municipal court bench.
The matter has been stayed in response to Ladenburg’s petition.
A key question for the Supreme Court is whether a municipal court judge is a state officer under article IV, section 4 of the state constitution. Henke argues no, and that therefore the high court is not the right one to hear the matter, and that it should be dismissed or sent to Superior Court instead.
Ladenburg argued in his brief that the municipal court judges are state officers, “But even if the Court disagrees and concludes that Judge Henke is a local officer, this Court has exercised its original jurisdiction under (article IV, section 4) to issue writs of mandamus or prohibition in appropriate circumstances directed to municipal court judges ... where fundamental rights are at stake, as here.”
