IN RE DETENTION OF LINKER, 150 Wn. App. 1024 (2009)

No. 63451-8-I.The Court of Appeals of Washington, Division One.
May 26, 2009.

Appeal from a judgment of the Superior Court for King County, No. 09-2-18158-6, Julie A. Spector, J., entered May 7, 2009.

Reversed and remanded by unpublished per curiam opinion.

UNPUBLISHED OPINION
PER CURIAM.

Kevin Linker appeals the trial court order denying his motion for a change of judge (affidavit of prejudice). RCW 4.12.040
grants to a party the right to a change of judge if the requirements of RCW 4.12.050 are met. RCW 4.12.050 provides that the affidavit of prejudice must be “called to the attention of the judge before he shall have made any ruling . . . either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice
. . .” (emphasis added). As the State acknowledges, an affidavit of prejudice is timely even if it is filed after the judge has ruled on a motion, if the party filing the affidavit of prejudice did not have notice of the motion.[1]

Trial judge Julie Spector denied Linker’s request having previously ruled on the State’s ex parte request for a finding of probable cause on the State’s petition for civil commitment of Linker as a sexually violent predator. Although it is not clear if it was pointed out to the trial judge, it is undisputed that Linker had no prior notice of the ex parte motion.

Linker was entitled to a change of judge under RCW 4.12.040 and .050. Therefore, the order denying the motion for change of judge is reversed and this matter is remanded for proceedings consistent with this opinion.