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DUI attorney turned judge barred from hearing 123 DUI cases

Prosecuting attorneys sought ‘extremely urgent’ temporary restraining order

Attorney Shane Brady
Attorney Shane Brady (Hailey Hoffman/Cascadia Daily News)
By Audra Anderson Assistant Editor

All of the 123 cases that newly elected Whatcom County District Court Judge Jonathan Rands has been barred from ruling on early into his tenure include a DUI charge, the district court clerk’s office confirmed. 

Rands, whose former private practice made him a notable figure in DUI defense around the state, was sworn into office on Jan. 9 after defeating opponent Gordon Jenkins, a county deputy prosecuting attorney, in the November 2022 election. Rands previously served as a judge pro tempore, or “substitute judge,” in Ferndale and Bellingham. 

Rands took on the retiring district court Judge Matt Elich’s caseload, but between Jan. 13–18, the Whatcom County Prosecuting Attorney’s Office filed affidavits of prejudice for 123 cases Rands was assigned to, all of which include a DUI charge and had arraignments prior to Rands taking office. 

Any party in a district court case can file affidavits of prejudice to disqualify a judge when they believe the judge will not be fair to their side. But there are only two parties that have the ability to file that many affidavits of prejudice against a judge: the public defender and the prosecution, said Jeff Lustick, local defense attorney and legal news consultant. 

Affidavits of prejudice are fairly common, Lustick said, and in this instance, the state clearly felt Rands would not be fair to them. 

Filing affidavits of prejudice before a judge has a chance to rule on any cases is more rare. 

“It should be that the judge is given a chance to make rulings,” Lustick said. “Whenever you have a new judge come in, especially one from the defense bar, someone that you maybe haven’t practiced in front of or worked with, it’s essential to see what their judicial paradigms are to see how they might handle cases.”

Voters knew of Rands’ history as a defense attorney before they elected him by a 62% margin to be a district court judge, Lustick said.

“The intent behind this rule is to address serious prejudice, to assess real prejudice,” he said. “To just institutionally file over 100 affidavits of prejudice against a judge — we have to, as a community, be asking, ‘What is the purpose of this and where does it end?’”

The prosecuting attorney’s office has used the tactic before, Lustick said, when former Whatcom County Superior Court Judge Dave Nichols took the bench. Nichols had been quoted in the press about leniency in marijuana cases before it was fully legalized. The prosecuting attorney’s office filed affidavits of prejudice against Nichols “to send a message,” Lustick said.  

“When you have a groundswell of affidavits of prejudice and it takes on this tenure that it has in going into superior court, being litigated, and having lawyers assigned — I have no doubt that Judge Rands has this on his mind when he’s on the bench,” Lustick said. 

The prosecuting attorney’s office could not be reached for comment. 

The state filed a petition on Jan. 20 to compel Rands to recuse himself from the list of 123 cases and void discretionary rulings he made during a Jan. 17 omnibus calendar. 

Also on Jan. 20, the state requested, and was granted by Whatcom County Superior Court, a temporary restraining order without providing notice to Rands or the district court due to its “extremely urgent nature,” according to documents obtained by Cascadia Daily News. 

An “unprecedented” hearing unfolded in the Whatcom County Superior Court Jan. 27, resulting in a new temporary restraining order that continues to prevent Rands from ruling on any of the cases during a 14-day timespan. District Court Judge Angela Anderson is not restrained by the order and can oversee the 123 cases Rands is barred from ruling on.

“Affidavits of prejudice don’t really affect the judges too much, but it quadruples the workload of the clerks,” Lustick said. They have to move cases to a different docket and it can change the assigned prosecutor or public defender. “That amount of cases is mildly significant. A thousand cases would be huge.”

Rands’ initial chosen counsel, Steve Hayne, who has since withdrawn from the case, said what is most troubling to him is the timing of the affidavits, which were mostly filed before Rands had the chance to rule on a single case. 

“It is unprecedented and it has implications that are disturbing and troubling,” Hayne said after Friday’s hearing. “It kind of makes you wonder if this isn’t a message from the prosecutor to any other judge that might be elected in the county.”

In courts with multiple judges, affidavits of prejudice can be filed within a 10-day window beginning on the date of “notice of assignment or reassignment to a designated judge,” according to court law.  

The division lies on when that 10-day period began. The state asserts the 10 days began when Rands was sworn into office on Jan. 9, and that before that date, he “remained only an attorney in private practice.” 

Rands, in an order filed on Jan. 18, responded to 50 of the state’s motions, citing their untimeliness because the state had multiple opportunities to file the motions to disqualify him: 10 days after the election result on Nov. 9; 10 days after the election certification on Nov. 29; or, “generously,” 10 days after retiring Judge Elich stated on Dec. 29 that Rands would be handling all cases previously assigned to Elich. 

Another hearing is set for Feb. 6, and the temporary restraining order on Rands will expire two weeks from Jan. 27. 

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