In the Matter of the Demand for Recusal of Judge George B. Fearing

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION III
In re Demand for Recusal 	) 	No. 39949-4-III
of Judge George Fearing 	)
) 	ORDER REGARDING
) 	SEPTEMBER 25, 2023
) 	LETTER RULING
On August 2, 2023, the Spokane County Prosecutor’s Office filed a motion
requesting that Judge George Fearing be disqualified from all criminal appeals
arising from Spokane County Superior Court. On September 25, 2023, Judge
Fearing issued a letter ruling that denied the motion in part. This letter ruling,
although not authoritative because it was not an opinion of this court, contains
analysis that will be helpful if a similar motion is filed in the future.
IT IS HEREBY ORDERED that the September 25, 2023, letter ruling
attached hereto be noted in official reports in the same manner as an unpublished
opinion of this court.
FOR THE COURT:
_________________________
CHIEF JUDGE

GEORGE FEARING
JUDGE
DIVISION III
NORTH 500 CEDAR STREET
SPOKANE, WASHINGTON 99201
The Court of Appeals
of the
State of Washington
Division III
(509)456-3922
george.fearing@courts.wa.gov
September 25, 2023
Re: 	In re Demand for Recusal of Judge George Fearing
Washington State Court of Appeals Division III
Cause # 399494
Dear Proponents and Opponents of Disqualification:
Dear Members of the Spokane County Community,
The judicial officers of Spokane County Superior Court each
swear an oath to support the Constitution of the United States and of
the State of Washington. We are charged to faithfully and impartially
discharge the duties of office to the best of our ability. Our Code of
Conduct recognizes that the judiciary plays a central role in
preserving the principles of justice and the rule of law that is the basis
of our United States legal system. This code also requires that we
avoid comment in order to maintain the neutrality demanded of us
and to avoid the appearance of endorsing a position on an issue that
might come before us. In the face of recent reminders of the persistent
devaluation and degradation of Black lives in America, we believe in
the importance of not maintaining our silence in this instance.
There can be no debate that the constitutions we are sworn to
uphold are intended to make all of us equal in the eyes of the law. It
is with painful awareness that we acknowledge shortcomings that
have resulted in systemic racial injustice against Black Americans
and Black citizens of our state and county. It is with candid honesty
that we recognize the role that the courts have played in these
injustices. We must be better about recognizing shortcomings in
ourselves, in our systems and in our leaders. It is only then that we

Disqualification letter ruling
September 25, 2023
Page 2
can roll up our collective sleeves and begin the hard work of
instituting and institutionalizing real change.
We do not claim to possess immediate answers to longstanding
questions. We do, however, pledge to listen better, do better, and be
better, when and where we can, to eradicate racism and establish
systemic reforms in our justice system.
Sincerely, Spokane County Superior Court
2020
Pending before me is a demand by the Spokane County Prosecuting
Attorney’s Office (prosecuting attorney’s office) to disqualify myself from all
criminal appeals arising from Spokane County Superior Court. The demand arises
from an opinion I wrote in State v. Vaile, 26 Wn. App.2d 1040, 2023 WL 3371574
(2023). Although I wrote a concurring/dissenting opinion in the Vaile appeal, I
will refer to my opinion as the Vaile dissent. I have temporarily recused myself
from all Spokane County criminal cases while awaiting the filing of more letters in
support of and in opposition to the demand. Washington Court of Appeals
Division III has opened a file concerning the demand, labeled the file “In re
Demand for Recusal of Judge George Fearing,” and numbered the file # 399494.
We have treated each letter as a pleading. I do not know if any more letters will be
filed, but I will not review any more.
I grant the demand for disqualification in part and deny the demand in part.
I have reviewed the following pleadings, all of which arrived at this court in
the form of letters:
August 2, 2023 letter from the Spokane County Prosecuting Attorney’s
Office demanding recusal;
September 6, 2023 letter from city of Spokane Police Chief Craig Meidl;
September 7, 2023 letter from Spokane County Sheriff John F. Nowels;
September 12, 2023 letter from Washington Appellate Project;
September 14, 2023 letter from Spokane County Counsel for the Defense;
September 15, 2023 letter from Spokane Police Lieutenants and Captains;
September 15, 2023 letter from Washington Defender Association;
September 15, 2023 letter from Washington Association of Criminal
Defense Lawyers;

Disqualification letter ruling
September 25, 2023
Page 3
September 15, 2023 letter from Peace and Justice Action League of
Spokane;
September 18, 2023 letter from Washington State Office of Public Defense;
September 20, 2023 letter from Spokane Community Against Racism;
September 22, 2023 letter from Unitarian Universalist Church of Spokane;
September 22, 2023 letter from The Way to Justice;
September 22, 2023 letter from NAACP Spokane Chapter;
Undated letter from Spokane Police Guild; and
Undated letter from Spokane County Deputy Sheriff’s Association
This letter ruling first addresses the procedure for disqualification of a judge
and the rules of disqualification for bias. The ruling then reviews my background
as a civil litigator, my relationship with the Spokane County Prosecuting Attorney’s
Office , and rulings issued by me in Spokane County criminal cases in the last year.
This ruling next answers accusations from the prosecuting attorney’s office . This
letter ruling ends with a review of events since issuance of the Vaile decision, a list
of cases in which I will recuse myself, and some final observations.
------------
I question the process, by which the prosecuting attorney’s office has
demanded recusal. RCW 4.12.040 and .050 permit a litigant in superior court to
disqualify one judge by the filing of a notice. RCW 3.34.110 affords a party a
similar opportunity in district court. No court rule or statute authorizes a motion or
allows a party to file a notice of disqualification or recusal of a Washington State
Supreme Court justice or Washington State Court of Appeals judge. Presumably,
the lack of such statutory process, despite being afforded in other levels of
Washington courts, reflects that no appellate judge renders a decision on his, her,
or their own.
Assuming a demand for recusal against a Washington State Court of
Appeals judge is permissible, a motion may need to be filed in a pending appeal.
The Spokane County Prosecuting Attorney’s Office seeks a blanket
disqualification for all cases. I might deny the demand on this basis, require that
discrete motions be filed in individual appeals, and require the prosecuting
attorney’s office to show any bias with respect to the particular type of case on
appeal. I have nonetheless determined to address the merits of the demand.

Disqualification letter ruling
September 25, 2023
Page 4
The prosecuting attorney’s office sent the demand for my disqualification to
all judges of Court of Appeals Division III. The prosecuting attorney’s office,
presumably to create division within this division, impliedly, if not expressly,
demanded that the entire court resolve whether I should be disqualified from
Spokane County criminal cases. The prosecuting attorney’s office cited no law
that affords other judges on this court authority to decide the disqualification of
one judge. Washington Code of Judicial Conduct (CJC) 2.11(A) reads, in relevant
part: “(A) A judge shall disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned.” The rule directs the
individual judge to make the decision.
No legal proceeding should be about a judge. I do not wish to be a judge in
a case wherein one of the parties or a party’s counsel does not wish me to serve. I
sometimes sit as a superior court judge pro tem and do not do so unless both sides
agree. But CJC Rule 2.7 demands that I decide matters assigned to me on the
Court of Appeals unless recusal is warranted. One comment under the rule
declares that unwarranted disqualification may bring public disfavor to the court
and the judge. Also, the prosecuting attorney’s office’s demand for my
disqualification from Spokane County criminal cases holds implications beyond
my removal.
A majority of cases resolved by the Court of Appeals are criminal cases.
Spokane County is the largest county in Court of Appeals Division III. Although I
have recused myself temporarily from Spokane County criminal appeals, a long-
term disqualification would be administratively burdensome to the court.
------------
Code of Judicial Conduct (CJC) Rule 2.11 governs disqualification of a
judge for bias. The rule reads, in pertinent part:
Disqualification (A) A judge shall disqualify himself or herself
in any proceeding in which the judge’s impartiality might reasonably
be questioned, including but not limited to the following
circumstances: (1) The judge has a personal bias or prejudice

Disqualification letter ruling
September 25, 2023
Page 5
concerning a party or a party’s lawyer, or personal knowledge of
facts that are in dispute in the proceeding.
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. Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d
355 (1995.) Like all legal issues, judges determine appearance of impropriety, not
by considering what a straw poll of the only partly informed person-in-the-street
would show, but by examining the record facts and the law, and then deciding
whether a reasonable person knowing and understanding all the relevant facts
would recuse the judge. In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313
(2d Cir. 1988). A judge’s being critical of a party, such as by sanctioning the party
for misconduct, does not necessarily form a basis for recusal. West v. State,
Washington Association of County Officials, 162 Wn. App. 120, 137, 252 P.3d 406
(2011). The entirety of the facts presented behind my career, my contact with the
Spokane County Prosecuting Attorney’s Office, and my track record of decisions
in Spokane County criminal appeals would not lead a reasonable person to
question my impartiality.
One might ask whether, in the context of the Spokane County Prosecuting
Attorney’s Office demand for disqualification because of an opinion I wrote in a
case with racial implications, the Washington Supreme Court would ask that I
employ a standard of the objective person who understands the history of systemic
racism in the American criminal justice system. Henderson v. Thompson, 200
Wn.2d 417, 422 (2022). To resolve the motion, however, I need not do so.
The Spokane County Prosecuting Attorney’s Office and letters from law
enforcement officers suggest that I am biased against female assault victims and
against law enforcement officers. Nevertheless, CJC 2.11 references bias against a
party. Victims and law enforcement officers are not party to a criminal
prosecution. The State of Washington is the party. Even if Spokane County law
enforcement and prosecuting attorneys lack an interest in eradicating racism from
the criminal justice system, the real party in interest, the state of Washington, does.
State v. Bagby, 200 Wn.2d 777, 522 P.3d 982 (2023); State v. Zamora, 199 Wn.2d
698, 512 P.3d 512 (2022).

Disqualification letter ruling
September 25, 2023
Page 6
In addition to lacking bias against female victims of assault, law
enforcement officers, and the Spokane County Prosecuting Attorney’s Office, I am
not biased towards the state of Washington. The state of Washington is my
employer.
------------
Because of the Spokane County Prosecuting Attorney’s Office claim that I hold
bias against law enforcement and prosecuting attorneys, I describe my background.
I was appointed to Washington State Court of Appeals Division III, District 2, in
2013. The district covers Adams, Asotin, Benton, Columbia, Franklin, Garfield,
Grant, Walla Walla, and Whitman Counties. Since my appointment, I have won
election three times.
Before I became a judge, I practiced law, with my office in the Tri-Cities,
for thirty-one years. My practice focused on representing cities, counties,
irrigation districts, school districts, port districts, public utility districts, and other
municipal corporations in contract, employment, and tort litigation. In the course
of my career, I represented the counties of Benton, Columbia, Franklin, Grant,
Klickitat, Walla Walla, and Whitman in litigation. I represented the cities of
Benton City, Cheney, Clarkston, Connell, Ellensburg, Goldendale, Grandview,
Kahlotus, Kennewick, Mabton, Mesa, Moses Lake, Othello, Pasco, Prosser,
Pullman, Richland, Selah, Sunnyside, Tieton, Toppenish, Union Gap, Waitsburg,
Walla Walla, Warden, West Richland, and Zillah. I also represented employees of
these municipalities.
Assuming I had a subspecialty as a civil litigator, my subspecialty was the
defense of police departments, sheriff departments, police chiefs, sheriffs, police
officers, and sheriff deputies in tort litigation. I represented law enforcement
agencies and their employees in suits involving accidents, common law torts, and
alleged civil rights violations. The common law tort and civil rights actions
included allegations of false arrest, illegal search and seizure, excessive force, and
racially biased conduct. Many of the claims implicated the Fourth and Fourteenth
Amendments of the United States Constitution. Some of these suits went to trial,
including trials in federal court. I defended sheriffs and sheriff deputies of Benton,
Columbia, Franklin, Grant, Klickitat, and Walla Walla Counties. I defended police
chiefs and police officers of the cities of Cheney, Clarkston, Goldendale,

Disqualification letter ruling
September 25, 2023
Page 7
Grandview, Kennewick, Mesa, Moses Lake, Othello, Pasco, Prosser, Richland,
Selah, Sunnyside, Union Gap, Walla Walla, Warden, West Richland, and Zillah.
Of all of the litigation I handled in three decades as a trial attorney, I valued
most the representation of law enforcement officers. I considered suits against law
enforcement officers to concern more than money. The suits also entailed the
honor of the law enforcement officers, and I was honored to represent them. I
continue to have high regard and respect for law enforcement officers. I have no
ill will toward the Spokane County Sheriff and Spokane County sheriff deputies. I
have no ill will toward the City of Spokane Police Chief or city police officers.
Spokane law enforcement officers need to learn that occasional criticism does not
mean that one dislikes or dishonors officers.
When representing counties, I usually interfaced with the elected
Prosecuting Attorney or a civil deputy in the Prosecuting Attorney’s Office. When
representing cities, I usually interfaced with the city attorney. I enjoyed my
relationship with city attorneys and prosecuting attorneys. I have high regard for
prosecuting attorneys and city attorneys. In at least two cases, I defended a
prosecuting attorney in a civil lawsuit. Spokane prosecuting attorneys need to
recognize that occasional criticism does not equate to dislike or dishonor toward
the attorneys.
On more than one occasion, a Franklin County and Benton County
Prosecuting Attorney appointed me as a special deputy prosecuting attorney to
assist in a criminal case. For a period of months in the 1980s, I wrote some
appellate briefs for the Franklin County Prosecuting Attorney’s Office in criminal
appeals.
I repeatedly represented the city of Pasco and its fire department in claims
asserted over a period of decades by an African-American firefighter, who accused
the fire department and its employees of discriminatory treatment and a hostile
work environment. I repeatedly defended cities, counties, and other municipal
corporations against claims of racial discrimination.
In the late 1980s or early 1990s, I served as a Franklin County special
deputy prosecuting attorney in a case brought by a landowner for a declaratory
ruling that a real property tax lien was void because the county had failed to timely

Disqualification letter ruling
September 25, 2023
Page 8
foreclose on the land. I considered the case an easy win because, under
Washington law, a tax lien never expires. Nevertheless, I recommended to the
Franklin County Prosecuting Attorney that the county file an affidavit of prejudice
against one of the Benton-Franklin Counties Superior Court judges who usually
ruled in favor of a citizen against a government entity. An affidavit of prejudice
was the former method of disqualifying a superior court judge. The prosecuting
attorney responded that the government does not “affidavit” an elected judge. The
short answer was “no.” The county lost before the superior court judge, who I
recommended be affidavited. The county, with my representation, won before the
Court of Appeals, but the appeal added costs.
------------
Because of the Spokane County Prosecuting Attorney’s Office claim that I am
biased against it, I describe my relationship with the office. During my tenure as a
Court of Appeals judge, Spokane County Deputy Prosecuting Attorneys Mark
Lindsey, Andrew Metz, Brian O’Brien, Gretchen Verhoef, Larry Steinmetz, Brett
Pearce, and Alexis (Lexie) Lundgren have appeared before this court. I have
enjoyed my relationship with each of the deputy prosecuting attorneys and think
highly of all. Neither elected Prosecuting Attorney Steven Tucker nor Larry
Haskell has appeared before this court. Although I question some of Mr. Haskell’s
conduct, I hold no ill will toward him.
Brett Pearce and Alexis Lundgren both served as law clerks at Court of
Appeals Division III, although they did not work as my law clerk. I enjoyed my
relationship with both of them during their respective tenures with this court. I
thought highly of the work performed by each.
Before the Spokane County Prosecuting Attorney’s Office hired Alexis
Lundgren in May 2021, she asked me to send a letter of recommendation to the
office. I wanted then and continue to now wish the prosecuting attorney’s office to
have excellent representation in its appellate division. Because of my high regard
for Ms. Lundgren, I sent a letter of recommendation to the prosecuting attorney’s
office . At the time I sent the letter of recommendation, I knew about most of the
facts and data I mention in the Vaile dissent , about which the prosecuting attorney’s
office now complains. I then had the same opinion of Larry Haskell as I do now.
The prosecuting attorney’s office hired Ms. Lundgren.

Disqualification letter ruling
September 25, 2023
Page 9
Attached as Appendix A is a recent e-mail I sent to Ms. Lundgren
complimenting her for her work on behalf of the Spokane County Prosecuting
Attorney’s Office. I also complimented the accused’s attorney in the same letter.
CJC Rule 2.11 also requires disqualification if the judge has a personal bias
or prejudice against a party’s lawyer. The law does not require disqualification if
the judge does not like the lawyer, has ruled against the lawyer before, thinks
poorly of the lawyer, or has been critical of some of the attorney’s conduct. To
repeat, I have no personal animosity against any members of the prosecuting
attorney’s office, let alone Larry Haskell. I have not met Mr. Haskell.
One might ask, for purpose of CJC Rule 2.11, who is the attorney in a
criminal appeal? Larry Haskell’s name is on all pleadings filed by the Spokane
County Prosecuting Attorney’s Office as the elected Prosecuting Attorney, but he
does not sign the briefs, nor argue any appeals before this court. When I was a
young practicing attorney, one of the Benton-Franklin County Superior Court
judges removed himself from all cases, in which my senior partner represented a
party, because of irritation caused by that partner’s courtroom style. The Superior
Court judge did not remove himself from cases, in which other members of my
firm represented a party. I have no personal bias against Larry Steinmetz,
Gretchen Verhoef, Brett Pearce, or Alexis Lundgren, the attorneys who now
practice before this court. I have never criticized any of the attorneys.
------------
We may easily determine whether I hold bias against Spokane law
enforcement, the Spokane County Prosecuting Attorney’s Office, or elected
Prosecutor Larry Haskell by reviewing appellate decisions from Spokane County
criminal cases, in which I served on the three-judge panel. Attached as Appendix
B is a complete list of other cases during the past year, in which I sat as a panel
member. Because I spent two hours and forty minutes researching and compiling
the list, I did not go beyond one year. In all other twenty-five cases from Spokane
County during the last year, I agreed with the other two members of the panel as to
the disposition of the appeal. In all but one decision wherein the defendant
challenged convictions, this court affirmed all convictions. In the one other
decision, this court affirmed three convictions, but reversed one conviction. Based

Disqualification letter ruling
September 25, 2023
Page 10
on this information, a critic could call me a “yes-man” for Spokane County law
enforcement officers and prosecuting attorneys.
During the time period involving the twenty-five decisions in the past year, I
had the same opinion of elected prosecuting attorney Larry Haskell as I do now. I
also knew all the information included in the Vaile dissent.
I inevitably disagreed with the majority of the panel and dissented in other
appeals from Spokane County criminal cases during the decade I have served on
the Court of Appeals. Any dissents have been rare, however.
In short, the prosecuting attorney’s office ’s position that I possess wholesale
disregard and dislike of law enforcement officers and prosecuting attorneys is a
fabrication and exaggeration that damages the credibility of the office’s demand
for disqualification.
------------
I now address accusations leveled against me by the Spokane County
Prosecuting Attorney’s Office and Spokane law enforcement officers. These
accusations rest on erroneous allegations and misrepresentations.
The prosecuting attorney’s office insists that I conceded bias in State v.
Vaile. Spokane Police Chief Craig Meidl wrote in his letter that he agrees with me
on one thing-I am biased. I wish Chief Meidl had read my entire opinion. I did
not write that I am biased against the State of Washington. I did not write that I am
biased against the Spokane County Prosecuting Attorney’s Office. I did not write
that I am biased against law enforcement officers or female assault victims. I
wrote that I am partial against racial prejudice and institutional racism. CJC Rule
2.3 compels me to prefer racial equity over racial bias.
The prosecuting attorney’s office mistakenly accuses me of not taking
seriously assaults against women because of comments I made in the Vaile dissent.
The undisputed facts showed that Darnai Vaile assaulted Patricia Murray by an
unconsenting kiss such that I would likely have affirmed any conviction of Vaile
for an assault. Nevertheless, this accusation, as mentioned by many opponents of
my recusal, is insincere and hypocritical.

Disqualification letter ruling
September 25, 2023
Page 11
To employ irony, Spokane law enforcement officers and the prosecuting
attorney’s office were so concerned about the assault of a woman that they declined
to charge Darnai Vaile with the unconsenting kiss of Patricia Murray. Instead,
they prosecuted the victim, Patricia Murray, for obstructing justice. Although the
victim’s sister denied such, the prosecuting attorney charged the sister with striking
a sheriff deputy. Under the State’s version of the case, which a jury accepted, the
victim’s sister was so distressed by law enforcement officer conduct towards Vaile
that she struck one of the deputies.
The prosecuting attorney’s motion and letters from law enforcement officers
fail to mention that Patricia Murray and her sister came to the defense of Darnai
Vaile because of the sheriff deputies’ handling of Vaile. The State successfully
precluded the playing of an audio recording of Murray demanding that the deputies
leave Vaile alone because he was cooperating with the officers and acting gently.
The prosecuting attorney’s office and law enforcement fail to recognize the racism
inherent in charging Darnai Vaile with assault of an officer when the only
photographs shown to the jury depicted injury to Vaile. The prosecuting attorney’s
office fails to recognize the inequity of charging Vaile with two counts of resisting
arrest despite his only being arrested once.
In two appeals, I confirmed the conviction of a defendant on the charge of
rape when a member of the panel dissented and would have overruled the
conviction: State v. Henderson, 12 Wn. App.2d 1085 (2020); State v. Chavez, 200
Wn. App. 1037 (2017). I wrote the leading Washington decision on sex trafficking
of women that affirmed a conviction for the crime. State v. Braun, 20 Wn. App.2d
756 (2022).
In the Vaile dissent, I criticized the State’s trial counsel for falsely claiming,
during jury summation, that Sheriff Deputy Criswell testified that he saw Darnai
Vaile with deputies on each arm and Vaile tossing each deputy as if each was a rag
doll. The prosecuting attorney’s office faults me for this criticism on the theory
that trial counsel made an innocent mistake. According to the prosecuting
attorney’s office, trial counsel intended to tell the jury that Sheriff Deputy Clay
Hilton testified to these facts. The closing statement of the trial prosecutor and the
testimony of Deputy Hilton belie this theory.

Disqualification letter ruling
September 25, 2023
Page 12
The context in which trial counsel incorrectly recited testimony shows that
counsel intended to refer to Deputy Criswell, not Deputy Hilton. I quote the entire
comments of the State’s attorney:
You heard from Deputy Criswell. He also responded to the
scene. When he got to the scene, he testified he didn’t see any of the
preliminary activities, but he saw the deputies, one on each arm,
trying to control Mr. Vaile. He saw the knife that was lying on the
ground. He testified that it looked to him as if Mr. Vaile was tossing
the deputies around like they were rag dolls.
RP 678. Deputy Criswell, not Deputy Hilton, arrived at the scene after the
“preliminary activities.” Deputy Hilton was present with the first wave of law
enforcement officers. Just as important, Hilton never testified to Darnai Vaile as
tossing deputies as if they were rag dolls.
Prosecuting attorneys and law enforcement officers take offense to my
writing that they participated in racism. They imply that I outright called them
racists. To the contrary, I never called anyone a racist, except Leslie Haskell. The
prosecuting attorney’s office’s protestation against my labeling of conduct as racist
fails to recognize the nature of institutional racism and shows a lack of
understanding of recent Washington Supreme Court decisions on racism.
Institutional racism often results from the behavior of persons who do not intend
racial prejudice or harm.
When determining whether the accused received a fair trial, the Washington
Supreme Court does not ask whether the State’s attorney intentionally appealed to
racism. State v. Bagby, 200 Wn.2d 777, 791 (2023). No one admits to racism and
will genuinely resort to race neutral reasons when explaining biased comments.
State v. Bagby, 200 Wn.2d 777, 791 (2023). A court should focus on the racist
rhetoric, not racist prosecutors. A court must focus on the language not the moral
culpability of the State’s attorney. Mary Nicol Bowman, Confronting Racist
Prosecutorial Rhetoric at Trial, 71 Case W. L. Rev. 39, 46 (2020). The
Washington Supreme Court has instructed courts not to base decisions on the
subjective intent of government actors, but on the viewpoint of an objective
observer who has studied the history of persistent racism in America and who
recognizes how race discrimination impacts the justice system in nonexplicit,

Disqualification letter ruling
September 25, 2023
Page 13
implicit, and unstated ways. Henderson v. Thompson, 200 Wn.2d 417, 422 (2022);
State v. Jefferson, 192 Wn.2d 225, 249, 429 P.3d 467 (2018) (plurality opinion).
The Spokane County Prosecuting Attorney’s Office accuses me of
maligning the superior court judge in State v. Vaile, Tony Hazel. I have high
regard for Judge Hazel. I do not value the prosecuting attorney’s office attempt to
sow discord between Judge Hazel and myself.
The Spokane County Prosecuting Attorney’s Office accusation of maligning
Judge Tony Hazel illustrates one impediment to eradicating racism from the
criminal justice system. Judges, prosecuting attorneys, and law enforcement
officers are often friends and sometimes close friends. Often a prosecuting
attorney and a sheriff rely on one another for assistance in election or reelection.
Judges often rely on other judges, prosecuting attorneys, sheriffs, and law
enforcement guilds for endorsements for election. A judge does not want to
suggest another judge, prosecuting attorney, or law enforcement officer behaved in
a way that continues institutional racism, even though institutional racism does not
necessarily mean intentional racism.
In Matter of Dependency of Q.S., 22 Wn. App. 2d 586, 515 P.3d 978 (2022),
this court reversed a decision of Spokane County Court Commissioner Anthony
Rugel. We expressed concern about the institutional racism impacting the
outcome of the commissioner’s decision. This court has since received an informal
report that Commissioner Rugel graciously accepted our decision of reversal and
has diligently sought to end racism in the child dependency system. Because of
my high regard for Superior Court Judge Tony Hazel, I expect that he has done the
same in response to our decision in State v. Vaile.
The prosecuting attorney’s office faults my Vaile dissent for addressing
racism when the issue was never raised by Darnai Vaile on appeal. This argument
falls short for many reasons. Although Vaile’s defense counsel did not thoroughly
explore the institutional racism present in the arrest and prosecution of Vaile,
counsel did complain about racism. RAP 12.1(b) allows a court to raise new
issues. I asked my colleagues on the Vaile panel to direct the parties to address the
racism present. My colleagues refused. Remarkably, however, the majority of the
Vaile panel wrote, in its ruling denying motions for publication, that they were
allowing Vaile, on remand, to seek dismissal because of racism. I had also

Disqualification letter ruling
September 25, 2023
Page 14
advocated for a remand to the superior court for a determination of whether to
dismiss charges based on racism, but the majority would not join me. No practical
difference lies between allowing the accused to seek dismissal before the superior
court because of racism and remanding for the superior court to determine whether
to dismiss on such grounds. The prosecuting attorney’s office has not asked that
any of my colleagues disqualify themselves as a result of their suggesting racism
be addressed by the superior court.
The Spokane County Prosecuting Attorney’s Office accuses me of bias or a
lack of neutrality. King County Superior Court Judge Veronica Galván wrote to
her colleagues about neutrality after reading the dissent in State v. Vaile:
It is sometimes hard to think of doing the right thing as an act
of valor and courage. The work we are called to does not often allow
space to truly reflect on what our presence on this bench means
juxtaposed against the weight of history. We call ourselves neutral,
and yet must recognize that neutrality is often an adherence to a status
quo that for many people has been anything but neutral. For this
reason, I commend to you the recent dissenting opinion by Judge
Fearing of Division III. Judge Fearing’s dissent calls for each of us to
truly consider how we engage in the work of being a judge. While the
majority of his colleagues decided not to publish the opinion in this
case, and by operation this extraordinary dissent, I intend to use it as
learning tool as we learn about bias, racism, and the complicity of
neutrality. The opinion is incredible in its scope as it casts an
unflinching eye at the progress of a case from its inception, the 911
call that started it all, through the appellate process itself. It is a
searing indictment of the legal system and the actions of everyone
involved in continuing to perpetuate racism in our community and our
society.
The Spokane County Superior Court 2020 open letter mentioned that courts
usually avoid comment in order to maintain the neutrality demanded of us. But the
Spokane County Superior Court made an exception for systemic and institutional
racism. The court wrote: “In the face of recent reminders of the persistent
devaluation and degradation of Black lives in America, we believe in the
importance of not maintaining our silence in this instance.”

Disqualification letter ruling
September 25, 2023
Page 15
Since the issuance of the Vaile decision, the Spokane County Prosecuting
Attorney’s Office and the Spokane County Sheriff’s Office has repeatedly and
publicly stated that their leaders have not one bone of racism in them. The
Spokane County Superior Court, in its 2020 open letter, never ruled out the
presence of racism within the Spokane County criminal justice system or its
leaders. The letter would have served no purpose if Spokane County African-
Americans did not suffer from persistent degradation of their lives.
An open letter from the Washington Supreme Court preceded the Spokane
County Superior Court 2020 open letter. Appendix C is a copy of that letter. The
Supreme Court asked that participants in the criminal justice system carefully and
constantly reflect on how our actions enable systemic racism to continue. The
letter encouraged all members of the Washington legal community to gain
awareness of conscious and unconscious biases in order to bring justice in
individual cases. The court directed that we no longer be bound by the ways things
have always been done. Finally, the court implored the judiciary to gather the
courage and will to end racial injustice in the legal system.
The prosecuting attorney’s office’s, the Spokane Police Department’s, and
the Spokane County Sheriff’s Office’s response to the Vaile dissent through their
pleadings and letters filed in support of the motion for recusal show disdain for
both the Washington Supreme Court and the Spokane Superior Court open letters.
A Washington judge should not disqualify himself from criminal cases because of
striving to fulfill the instructions of the Washington Supreme Court.
Members of the Spokane County Prosecuting Attorney’s Office involved in
the prosecution and Spokane County law enforcement officers involved in the
arrest of Darnai Vaile refuse to engage in any self-reflection of their conduct, but
instead cry foul because of the Vaile dissent. Spokane law enforcement officers
will not even admit to the statistics that show racism inside the Spokane County
criminal justice system, despite the statistics being formulated by those that law
enforcement hired. Prosecuting attorneys and law enforcement will not admit to
the existence of even one of the many factors I identified as illustrating
institutional racism. In fact, the Prosecuting Attorney’s Office has employed a
tactic used since the 1860s-blame the one seeking to erase racism as perpetuating
racism. The prosecuting attorney’s office accuses me of exacerbating racism by

Disqualification letter ruling
September 25, 2023
Page 16
viewing a prosecution from the lens of Spokane’s African-American community
and viewing the arrest from an objective standard of history that recognizes the
travail of African-Americans in the United States and in the Inland Empire.
Identifying systemic and institutional racism in the criminal justice system
and seeking to eradicate the evil of racism from the justice system should not
disqualify a judge. If it does, then the entire Spokane County Superior Court
bench must disqualify themselves as a result of its open letter. One might respond
that the Spokane County Superior Court judges, in the letter, spoke only in
generalities and have never acted on their pledge to eradicate systemic racism in
discrete cases. If that is true, another serious problem arises.
The prosecuting attorney’s office’s motion for recusal fulfills predictions I
made in the Vaile dissent. I forecasted that the prosecuting attorney’s office will
deny any racism. I foresaw that, because the other members of this court’s panel
refused to address the racism inherent in the arrest and prosecution, the prosecuting
attorney’s office will consider my dissent to be outlandish. I noted that, without
any recognition of the racism in the case by the white power structure in Spokane
County, racism in the Spokane County criminal justice system will persist for
decades.
------------
The Vaile dissent observed that the trial prosecuting attorney, on behalf of the
State, attempted to exclude witnesses from testifying on the ground that the
witnesses disliked law enforcement officers. Now, with the pending motion for
disqualification, the Spokane County Prosecuting Attorney’s Office wishes to remove
a judge from deciding cases that the prosecution mistakenly believes dislikes law
enforcement officers and prosecuting attorneys.
The Spokane County Prosecuting Attorney’s Office demand for my
disqualification carries implications beyond disqualifying one judge. The motion
implicates the independence of the American judiciary. The motion suggests the
prosecuting attorney’s office believes it controls the courtroom and the judiciary.
The prosecuting attorney’s office ’s demand thwarts the separation of powers. The
motion interferes in my electorate’s choice three times to send me to this court.

Disqualification letter ruling
September 25, 2023
Page 17
I quote some of the passages from opponents to the prosecuting attorney’s
office’s demand for disqualification. The Washington Defender Association
wrote:
To be frank, the demand that Judge Fearing not sit on cases
involving the Spokane County Prosecutor’s Office is a bald attempt to
ensure that jurists who would call out systemic racial injustice are
silenced.… It is a craven attempt to ensure that the racism that
infected the Vaile case continues without judicial oversight.
The Washington Association of Criminal Defense Lawyers wrote:
The State’s efforts to avoid having its cases hear by a jurist they
see as unfriendly is an overreach. “Judicial independence, free of
external pressure or political intimidation, lies at the foundation of our
constitutional democracy.” Statement on the Rule of Law and an
Independent Judiciary, https://www.federalbar.org/government-
relations/fba-statements-letters-and-testimony/statement-on-the-rule-
of-law-and-an-independent-judiciary. The effect of an entire county
disqualifying a judge is not just an administrative nightmare, it is a
powerful warning to judges that if they do not conform to the State’s
expectations, their ability to do their work as jurists will be severely
curtailed, and they will be silenced. In criminal cases, both parties
regularly deal with the perception that certain judges are more likely
to be more receptive or less receptive to their positions. Cherry-
picking judges with a request for across-the-board recusal is an
improper flexing of the State’s power to influence judicial decisions
by virtue of the weight of the number of cases it argues at the
appellate court level.
Washington Appellate Project wrote:
The attorneys in my office have 320 years of combined
experience representing people in appeals of their criminal
convictions including cases before this Court. We have never seen so
blatant an attempt by one litigant to silence those who would disagree
with them. Each of the attorneys in my office could point to cases in

Disqualification letter ruling
September 25, 2023
Page 18
which we believe the court’s opinions were wrong, and the
representation of the facts incorrect. But despite those instances, we
have never sought the wholesale disqualification of a judge. Because
it would be improper to do so. It is particularly troubling where the
effort is made by a representative of the State of Washington and
where it is a transparent effort to silence criticism of racist outcomes.
I urge this Court to refuse to permit this blatant attempt to tip the
scales.
The people of this State choose who will decide cases as
judges, not the interested litigants. What hope does it leave
individuals who would challenge the impact of race in their Spokane
County conviction in future appeals to know of past and presumably
ongoing efforts of law enforcement to improperly influence those who
will decide their cause?
The pastor of the Spokane Unitarian Universalist Church penned:
Let the Prosecutor prove the merits of his arguments in court,
not through political maneuvers meant to silence thoughtful
opposition, especially by suggesting an elected judge ought to be so
thoroughly hampered from fulfilling his elected responsibilities. As
an elected official himself, the Prosecutor must better learn to accept
criticism rather than attempt to silence it, especially in such an all-
encompassing, overly dramatic, and undemocratic way.
As noted by letters from Spokane Community Against Racism, The Way to
Justice, NAACP Spokane Chapter, and Spokane Peace and Justice Action League,
my disqualification from Spokane County cases would create staggering optics to
the Spokane minority community because it confirms that even white people, let
alone African-Americans, Native Americans, Hispanics, and other BIPOCs, who
seek to end racial injustice will be silenced by a prosecuting attorney whose wife
openly and proudly speaks and demonstrates racism. The letters from each group
document the ongoing racism endemic to the Spokane County criminal justice
system and the need for courts to combat this injustice.

Disqualification letter ruling
September 25, 2023
Page 19
------------
I now mention some events occurring since release of the opinions in State
v. Vaile. On May 21, I listened to a voice mail message on my court landline
phone. An angry, anonymous male voice stated he was a “concerned citizen.” The
caller bespoke the same themes as presented by the prosecuting attorney’s office in
its demand for my recusal, including accusations of my being a racist. The caller
labeled my decision in Vaile as outrageous. He described me as a disgrace to the
judiciary. He repeatedly uttered the word “woke,” as if branding me as “woke”
explained everything. He ended his message with derogatory comments about
Spokane’s African-American community being criminals.
In August, I received a public records request from Sheriff Deputy Clay
Hilton, one of the deputies who arrested Darnai Vaile. The request demanded
production of all communications I have had with anyone, including my own law
clerks, about the Darnai Vaile case. In his request, Deputy Hilton referred to
himself as a “concerned citizen.” In early September, an attorney for Deputy
Hilton announced that Hilton will be suing me.
Deputy Clay Hilton’s conduct since the issuance of the decision in State v.
Vaile suggests that he works as a law enforcement officer not to serve others and
benefit the Spokane community, but to intimidate and dominate. I hold no ill will
toward Deputy Hilton, but have concern about his anger, inability to reflect on his
behavior, and insistence on retaliation. I lack confidence in his credibility. As a
matter of precaution, I will recuse myself from cases in which Clay Hilton is a
witness and his testimony is relevant to resolution of an appeal. I will do so not
because of events leading to the Darnai Vaile prosecution but because of events
after filing of the Vaile opinion. The Spokane County Prosecuting Attorney’s
office should notify this court if Deputy Hilton was a testifying witness and his
testimony bears relevance to an appeal’s disposition. I will also recuse myself
from any appeal, in which either Larry Haskell or Leslie Haskell is a named party.
------------
When I sought retention to my position on the Court of Appeals in the fall of
2013, the Tri-City Herald editorial board interviewed my campaign opponent and
me. The newspaper publisher commented on my representation of law

Disqualification letter ruling
September 25, 2023
Page 20
enforcement officers throughout my career, and he wondered if I could be fair to
the criminally accused. Because I had no ready answer to the editor’s concern and
because a newspaper’s criticism of a judge as being predisposed to rule against
criminal defendants assists in the judge’s election, I did not dissuade the editor of
his notion. But the editor’s comment and question caused me to reflect. On
reflection, I pledged again to myself that I would listen to all parties, review the
facts and law without any predisposition, and follow the rulings of the United
States and Washington Supreme Courts. I did so when writing my Vaile dissent.
With my ruling in response to the Spokane County Prosecuting Attorney’s
Office demand for my disqualification, I again pledge to my electorate, to the
people of Spokane County, to the prosecuting attorneys of Spokane County, to the
law enforcement officers of Spokane County, to the victims of crimes in Spokane
County, to the accused inside the Spokane County criminal justice system, and to
appellate criminal defense counsel to listen to all parties, review the facts and law
without any predisposition, and to follow the rulings of the United States and
Washington Supreme Courts. I also pledge to continue to accept the call of the
Washington Supreme Court to summon the will and courage to eradicate racism
infecting the criminal justice system. My prayer each morning will continue to
come from Micah 6:8: Lord, help me to act justly, to love mercy, and to walk
humbly with you.
Respectfully Yours,
George Fearing

Disqualification letter ruling
September 25, 2023
Page 21
APPENDIX A
-----Original Message-----
From: Fearing, George <George.Fearing@courts.wa.gov>
Sent: Friday, February 10, 2023 1:08 PM
To: Lundgren, Alexis M. <alundgren@spokanecounty.org>; Andrea@2arrows.net
Subject: appellate advocacy
The two of you were opponents in two appeals, which included oral argument, in
January. After each argument and during panel conferences, all three judges
praised both or your advocacy skills and brief writing.
Geo

Disqualification letter ruling
September 25, 2023
Page 22
APPENDIX B
State v. Dite
No. 38878-6-III
AUGUST 17, 2023
Attempting to elude a police vehicle
Fearing joined other members of the panel in affirming the conviction
State v. Dunbar
532 P.3d 652
July 18, 2023
Fearing joined the entire panel in remanding for resentencing
State v. Denison
2023 WL 4362816
July 6, 2023
Fearing joined the entire panel in denying the accused’s motion to restore firearm
rights
State v. Taylor
2023 WL 4195565
No. 38664-3-III
Filed June 27, 2023
Fearing joined the entire panel in affirming the sentence
State v. Moore
2023 WL 3116662
No. 38643-1-III
Filed April 27, 2023
Three counts rape of a child in first degree
Fearing joined other members of the panel in affirming the convictions

Disqualification letter ruling
September 25, 2023
Page 23
State v. Dyfort
2023 WL 2879420
No. 38536-1-III
Filed April 11, 2023
Second degree assault with a deadly weapon and first degree arson
Fearing joined other members of the panel in affirming the convictions
Fearing wrote the opinion
State v. McCabe
526 P.3d 891
No. 38180-3-III
Filed April 6, 2023
First degree trafficking in stolen property, third degree theft, and bail jumping
Fearing joined other members of the panel in affirming the conviction
State v. Wilson
2023 WL 2767267
No. 38606-6-III cons. with, No. 38922-7-III
Filed April 4, 2023
Attempted kidnapping and trafficking in stolen property
Fearing joined other members of the panel in affirming the conviction
Fearing wrote the opinion
State v. Manina
No. 38468-3-III
April 4, 2023
Fearing joined other panel members in affirming convictions for rape and two
counts of first degree child molestation, but reversed a second degree child
molestation conviction.
Fearing wrote the opinion
In the Matter of Detention of Austin
No. 38343-1-III
Filed April 4, 2023
26 Wn. App.2d 1011
Fearing joined the panel in affirming the appellant’s detention as a sexually violent
predator

Disqualification letter ruling
September 25, 2023
Page 24
State v. Hanson
25 Wn. App.2d 1073
No. 38535-3-III
Filed March 21, 2023
Fearing joined with other panel members in remanding for resentencing based on
the State’s concession of a miscalculated offender score
Fearing wrote the opinion
State v. Bost
25 Wn. App.2d 1065
No. 38530-2-III
March 14, 2023
Fearing joined with other panel members in remanded to the superior court to
redetermine whether the accused should be acquitted of first degree murder by
reason of insanity
State v. Preble
25 Wn. App.2d 1059
No. 38625-2-III
Filed March 9, 2023
Fearing joined with other panel members in affirming some community custody
conditions and reversing others
State v. Potts
25 Wn. App.2d 1053
No. 38345-8-III
Filed March 2, 2023
Panel confirmed convictions for assault on wife, unlawfully imprisoning his wife,
and unlawfully imprisoning his stepdaughter.
Fearing wrote the opinion for the panel
State v. Irizarry
No. 38667-8-III
25 Wn. App. 2d 1026 (2023)
Filed January 24, 2023
Panel affirmed conviction for second degree assault with a deadly weapon
Fearing wrote the opinion

Disqualification letter ruling
September 25, 2023
Page 25
State v. Brown
25 Wn. App.2d 634
No. 38749-6-III
Filed February 23, 2023
Panel affirmed conviction for second-degree trespass
Fearing wrote the opinion
State v. Bergstrom
25 Wn. App.2d 1025
No. 38514-1-III
Fearing joined panel in denying motion to vacate guilty plea but remanded for
resentencing
State v. Pond
24 Wn. App.2d 1042
No. 38176-5-III
Filed December 8, 2022
Panel affirmed conviction for attempted child molestation in the first degree
Fearing wrote the opinion
Personal Restraint of Moen
24 Wn. App.2d 1031
No. 38496-9-III
Filed November 17, 2022
Petitioner sought vacation of conviction for child molestation.
Fearing joined panel in dismissing the petition
State v. Hopkins
24 Wn. App.2d 1025
No. 38209-5-III
Filed November 10, 2022
Panel affirmed convictions for attempting to elude a police vehicle and second
degree criminal trespass.
Fearing wrote the opinion

Disqualification letter ruling
September 25, 2023
Page 26
State v. Crossguns
23 Wn. App.2d 1038
No. 37079-8-III
Filed October 4, 2022
On remand from the Supreme Court, panel affirmed conviction for second degree
rape of a child and second degree child molestation
Fearing wrote the opinion
State v. Chambers
23 Wn. App.2d 917
No. 38282-6-III
Filed October 4, 2022
Convictions for 24 counts of first-degree possession of depictions of minor
engaged in sexually explicit conduct, two counts of first-degree dealing in
depictions of minor engaged in sexually explicit conduct, and one count of second-
degree dealing in depictions of a minor engaged in sexually explicit conduct.
Fearing joined panel in affirming all convictions
State v. Flett
23 Wn. App.2d 1028
No. 38452-7-III
Filed September 20, 2022
Fearing joined panel in affirming criminal judgment and sentence
State v. Sheldon
23 Wn. App.2d 1019
No. 38012-2-III (consolidated with No. 38013-1-III, No. 38014-9-III, No. 38015-
7-III)
Filed August 30, 2022
Fearing joined panel in affirming resentencing
State v. Croson
23 Wn. App.2d 1018
No. 37842-0-III
Filed August 30, 2022
Fearing joined panel in affirming convictions for possession of stolen motor
vehicle and possession of a motor vehicle theft tool.

Disqualification letter ruling
September 25, 2023
Page 27
APPENDIX C
June 4, 2020
Dear Members of the Judiciary and the Legal Community:
We are compelled by recent events to join other state supreme courts around
the nation in addressing our legal community.
The devaluation and degradation of black lives is not a recent event. It is a
persistent and systemic injustice that predates this nation’s founding. But recent
events have brought to the forefront of our collective consciousness a painful fact
that is, for too many of our citizens, common knowledge: the injustices faced by
black Americans are not relics of the past. We continue to see racialized policing
and the overrepresentation of black Americans in every stage of our criminal and
juvenile justice systems. Our institutions remain affected by the vestiges of
slavery: Jim Crow laws that were never dismantled and racist court decisions that
were never disavowed.
The legal community must recognize that we all bear responsibility for this
on-going injustice, and that we are capable of taking steps to address it, if only we
have the courage and the will. The injustice still plaguing our country has its roots
in the individual and collective actions of many, and it cannot be addressed without
the individual and collective actions of us all.
As judges, we must recognize the role we have played in devaluing black
lives. This very court once held that a cemetery could lawfully deny grieving black
parents the right to bury their infant. We cannot undo this wrong⸺but we can
recognize our ability to do better in the future. We can develop a greater
awareness of our own conscious and unconscious biases in order to make just
decisions in individual cases, and we can administer justice and support court rules
in a way that brings greater racial justice to our system as a whole.
As lawyers and members of the bar, we must recognize the harms that are
caused when meritorious claims go unaddressed due to systemic inequities or the
lack of financial, personal, or systemic support. And we must also recognize that
this is not how a justice system must operate. Too often in the legal profession, we

Disqualification letter ruling
September 25, 2023
Page 28
feel bound by tradition and the way things have “always” been. We must
remember that even the most venerable precedent must be struck down when it is
incorrect and harmful. The systemic oppression of black Americans is not merely
incorrect and harmful; it is shameful and deadly.
Finally, as individuals, we must recognize that systemic racial injustice
against black Americans is not an omnipresent specter that will inevitably persist.
It is the collective product of each of our individual actions—every action, every
day. It is only by carefully reflecting on our actions, taking individual
responsibility for them, and constantly striving for better that we can address the
shameful legacy we inherit. We call on every member of our legal community to
reflect on this moment and ask ourselves how we may work together to eradicate
racism.
As we lean in to do this hard and necessary work, may we also remember to
support our black colleagues by lifting their voices. Listening to and
acknowledging their experiences will enrich and inform our shared cause of
dismantling systemic racism.
We go by the title of “Justice” and we reaffirm our deepest level of
commitment to achieving justice by ending racism. We urge you to join us in
these efforts. This is our moral imperative.