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State v. Tolias

January 23, 1997


Appeal from Superior Court of Yakima County. Docket No: 94-1-00135-9. Date filed: 12/19/94. Judge signing: Hon. Michael Leavitt.

Petition for Review Granted July 8, 1997,

Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, Frank L. Kurtz.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Shortly after Manuel Tolias and Sylvia Strang purchased a home in Tieton in 1990, they began to have trouble with their neighbors, Ben and Earlene Barnes. Mr. Barnes plowed their land, graffitied their garage, and toilet papered their house. He strung barbed wire, dumped a load of lime and placed a leaking drum on the property; put tire spin marks in their yard; destroyed their garden; directed insults at them; and directed video surveillance cameras at their residence. Mr. Tolias contacted the Yakima County Prosecutor's Office on several occasions, but no action was taken. A deputy prosecutor put him in contact with Beverly and Gary Fernelius, the Barneses' neighbors to the north. They told Mr. Tolias about their extensive history of confrontation with the Barneses, including the Barneses' stalking of Mrs. Fernelius, threatening to shoot them, attempting to run Mrs. Fernelius's son off the road, and shooting their dog and cat. Mr. Tolias believed the Barneses were "dangerous . . . violent, [and] would stop at nothing."

Two days after his Discussion with the Ferneliuses, Mr. Tolias was at home when he saw the headlights of two all-terrain vehicles cross his property line at about 9 p.m. He believed the Barneses were coming to create problems. Mr. Tolias admitted at trial that he pulled Mr. Barnes off his vehicle and said, "Do you want a piece of me, you son of a bitch? Come and get it." A physical brawl resulted.

After the incident, the Yakima County Prosecutor intervened as a mediator. When mediation efforts failed, the Prosecutor personally prosecuted Mr. Tolias for assault. The trial court denied Mr. Tolias's motion to recuse the Yakima County Prosecutor's Office. The jury convicted Mr. Tolias of one count of second degree assault against Mr. Barnes. This appeal follows.

The dispositive issue is whether the court erred in denying Mr. Tolias's motion to recuse the Yakima County Prosecutor's Office. Because the prosecution violated the appearance of fairness doctrine, we conclude it did. We, therefore, reverse the conviction and remand for a new trial.


Appearance of Fairness Doctrine. A judicial proceeding is valid under the appearance of fairness doctrine "only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing." State v. Ladenburg, 67 Wash. App. 749, 754-55, 840 P.2d 228 (1992); State v. Post, 118 Wash. 2d 596, 618, 826 P.2d 172, modified, 837 P.2d 599 (1992). The doctrine is "directed at the evil of a biased or potentially interested Judge or quasi-judicial decisionmaker." Post, 118 Wash. 2d at 619; see also State v. Perez, 77 Wash. App. 372, 378, 891 P.2d 42 ( Sweeney, J., Dissenting), review denied, 127 Wash. 2d 1014, 902 P.2d 164 (1995). A prosecutor is a quasi-judicial officer, and "in the interest of Justice must act impartially.'" Ladenburg, 67 Wash. App. at 751. The appearance of fairness doctrine, therefore, applies to a prosecutor, at least up to and including the decision to file criminal charges against a defendant. Id. at 754.

Rules of Professional Conduct (RPC) 1.12(a) provides in pertinent part:

lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a Judge or other adjudicative officer, arbitrator, mediator *fn1 or law clerk to such a person, unless all parties to the proceeding consent after disclosure. The concern with a lawyer's prior mediation role is based on the confidential nature of a mediator's activities:

The mediator is not merely charged with being impartial, but with receiving and preserving confidences in much the same manner as the client's attorney. In fact, the success of mediation depends largely on the willingness of the parties to freely disclose their intentions, desires, and the strengths and weaknesses of their case; and upon the ability of the mediator to maintain a neutral position while carefully preserving the confidences that have been revealed. Poly Software Int'l, Inc. v. Su, 880 F. Supp. 1487, 1494 (D. Utah 1995). For these reasons, when a mediator learns of confidential information during a mediation, the mediator should not thereafter represent "anyone in connection with the same or a substantially factually related matter unless all parties to the mediation proceeding consent after disclosure." Poly Software, 880 F. Supp. at 1494; see American Arbitration Ass'n, Standards of Conduct for Mediators, 50 J. Disp. Resol. 78, Standard III, at 79 (1995). By preserving the confidences that arise as a natural and necessary part of the mediation process, this rule serves the important policy of encouraging free disclosure of parties' positions during mediation, and thus increasing the opportunity for settlement. Poly Software, 880 F. Supp. at 1494.

The record here does not reflect to what extent the Yakima County Prosecutor was involved in the mediation between Mr. Tolias, the Ferneliuses and the Barneses after the assault incident. Mr. Tolias notes, however, in his pro se brief that the Prosecutor met with each family at their homes to familiarize himself with the issues. He then "convened the three families with counsel in the courthouse County Commissioners' hearing room. There he sat up on the bench, acting as a Judge, after hearing all sides, and made his recommendations known." Pro Se Brief at 15.

We hold that the actions of the Yakima County Prosecutor, while motivated by the laudable intention of defusing a volatile situation, created an appearance of unfairness. *fn2 We must next decide whether Mr. Tolias was required to ...

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