An activist group which filed a consumer protection and emotional distress lawsuit against Fox News for its coverage of the COVID-19 pandemic has sought to replace the judge overseeing its claim — one week after filing it.

As Law&Crime reported last week, the Washington League for Increased Transparency and Ethics, known as WASHLITE, claimed Fox News and other defendants “willfully and maliciously engaged in a campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.” The core of the group’s argument is that certain Fox News segments downplayed the danger the virus posed and therefore allowed the virus to spread in a less checked manner than might otherwise have occurred. The claim also took exception to Fox News referring to itself as a “news” broadcast.

Court documents obtained by Law&Crime indicate that WASHLITE has moved to have the judge assigned to the case disqualified under Washington State law. The law allows “[a]ny party” or “any attorney” to “disqualify a judge” subject to some limitations.

One limitation is that the disqualification must occur before a judge has made a “discretionary ruling.” Another is that the judge against whom disqualification is sought can only continue to decide issues the parties agree can be decided. It’s a one-shot deal; “[n]o party or attorney is permitted to disqualify more than one judge in any matter.”

In a court document entitled an “affidavit of prejudice,” WASHLITE’s attorney, Elizabeth Hallock, states only as follows: “I believe that a fair and impartial hearing cannot be heard before the Hon. Judge Schubert, Judge of the above case.” In an email to Law&Crime, Hallock acknowledged that her affidavit was not required under state law and noted, legally, that “[d]isqualifying one judge under that statute is automatic.”

The judge, Hon. Ken Schubert, agreed Thursday afternoon to have the case reassigned, but took a swipe at Hallock’s affidavit through this footnote:

“Plaintiff submitted an affidavit wherein her counsel swears under penalty of perjury that a ‘fair and impartial trial’ in this case cannot be had before this Court. As of July 23, 2017, [state law] no longer requires a party seeking to disqualify a judge to file an affidavit or make such assertions.”

The Washington State statute at play here does not enumerate which judicial entanglements or actions are grounds for disqualification. Washington State law is, in this respect, markedly different from federal law, which outlines specific reasons for a judge’s disqualification. Federal judges can be disqualified if their presence on a case causes a situation “in which his impartiality might reasonably be questioned,” if the judge “has a personal bias or prejudice concerning a party,” or if the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding.” Those all make clear sense. Federal law also sets forth generally-less-juicy grounds for a disqualification which apply to judges related to a litigant or who previously practiced law with an attorney pressing a case. Those methods of disqualification generally happen without much fanfare. These clearer federal standards do not apply to Washington State courts.

Once disqualified under Washington State law, a judge must not continue to “sit to hear or try any action or proceeding.” The case must be transferred to another judge (in larger counties) or another judge must be called in (in smaller venues) according to another state law. Certain judicial actions, such as handling an arraignment, setting bail, or scheduling a case calendar are exempt from disqualification.

The judge the plaintiffs successfully disqualified generally hears criminal matters. His biography states that he was previously a chief civil judge, and he has been on the bench since 2013. Judges run for office in nonpartisan elections in Washington State, but a Law&Crime review of election expenditures from Schubert’s 2012 election committee shows payments to Northwest Passage Consulting, a group which states on its homepage that it tends to work with Democrats and progressives. Schubert reportedly ran unopposed in 2016 and did not report expenditures. Hallock, the plaintiff’s attorney, is running for governor of Washington on the Green Party ticket according to news reports and her campaign website.

Obviously, nothing is wrong with any of that. Recently, though, Judge Schubert “flipped” a decision to withhold records in another public health matter and instead decided to make the records public.

It could simply be that the plaintiffs, in an abundance of caution, do not want two public health matters being litigated by the same judge at roughly the same time. Federal judges have recused themselves for similar reasons. But we’re just reading between the lines with that speculative assessment. It could also simply be that WASHLITE is employing a completely legal delay tactic.

Law&Crime has previously assessed the strengths of potential lawsuits against Fox News over its coronavirus coverage. Bottom line: they’re going to be very hard to win.

2020-04-08 Dkt 16 Motion Re Affidavit of Prejudice by Law&Crime on Scribd

2020-04-08 Dkt 14 Affidavit of Prejudice by Law&Crime on Scribd

2020-04-08 Dkt 13 Motion Re Affidavit of Prejudice by Law&Crime on Scribd

Order Granting Mtn for Disqualification 20-2-07428-4 by Law&Crime on Scribd

[Image via [Photo by Drew Angerer/Getty Images]

[Editor’s note: This piece has been updated to reflect the judge’s decision to have the case reassigned and to include comments from WASHLITE’s attorney.]

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