BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION


In the Matter of Determining the       ) DOCKET NO. UT-971515
Proper Classification of:    )
       )
UNITED & INFORMED CITIZEN         ) FIRST SUPPLEMENTAL 
ADVOCATES NETWORK    ) ORDER
       )
       ) PREHEARING 
              ) CONFERENCE
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ) 
ORDER

  PREHEARING CONFERENCE:  A prehearing conference was held in Olympia, 
Washington on Tuesday, November 18, 1997, before Administrative Law Judge 
Marjorie R. Schaer of the Washington Utilities and Transportation Commission.

  PARTIES:  The Washington Utilities and Transportation Commission ("Commission 
Staff") is represented by Shannon E. Smith, Assistant Attorney General, 
Olympia.  The respondent, United and Informed Citizen Advocates Network ("U&I 
CAN"), is represented by J. Byron Holcomb, attorney, Bainbridge Island.  
Intervenor,   U S WEST Communications, Inc.  ("U S WEST"), is represented by 
Peter Butler and Mark Reynolds, attorneys, Seattle.  Intervenor GTE Northwest 
(“GTE”) is represented by Timothy J. O’Connell, attorney, Everett.

  MOTION TO DISQUALIFY:  U&I CAN moves to disqualify Marjorie R. Schaer as the 
Administrative Law Judge in this proceeding.  The motion is based on Judge 
Schaer’s participation as the presiding officer in United & Informed Citizen 
Advocates Network v. U S West Communications, Inc., Docket No. UT-960659 
(September 1997).  The Second Supplemental Order in that proceeding rules on 
cross-motions for summary disposition, based on agreed upon facts.  On pages 7 
and 8, in a section headed “2. U & I CAN Does Not Operate a Private 
Telecommunications System,” Judge Schaer applies the law to the fact record 
made in that proceeding, and determines that U&I CAN did not then operate a 
private telecommunications system. U&I CAN argues that its position in this 
proceeding will be that it is a private telecommunications system, not subject 
to registration.  It argues that the earlier order is evidence that Judge 
Schaer has prejudged this matter and, thus, should be disqualified in this case.

  Commission Staff opposes the motion.  Staff argues that there are no grounds 
to disqualify Judge Schaer in this matter simply because of a prior ruling in 
another proceeding.  Staff asserts that if parties move successfully to 
disqualify Administrative Law Judges at the Commission because of prior adverse 
rulings, there soon will be no occasions where any Administrative Law Judge 
will be able to preside over a Commission matter because the same parties come 
before the Administrative Law Judges often and sometimes rulings adverse to 
them are made.

  Commission Staff argues that no bias, or prejudice, or interest on the part 
of this Administrative Law Judge is shown to exist simply because a ruling 
adverse to U&I CAN’s interests was made in a prior proceeding by the same 
presiding officer. Staff notes the difference between this situation and 
Superior Court, where parties are allowed to file affidavits of prejudice 
against judges.  Here, by contrast, they must show actual bias, prejudice, or 
interest on the part of the Administrative Law Judge.  Staff argues that no 
such showing is made by U&I CAN in this case.  

  U S WEST and GTE support the Commission Staff’s analysis.  GTE argues 
generally that the standards by which a judge should rule on a motion to recuse 
herself, as established under the federal case law, are not met in this 
instance.  GTE cites no specific authority.

  U&I CAN disputes GTE’s analysis of federal case law and continues to assert 
that when a judge has ruled on a matter which is again an issue between the 
same parties at a later proceeding, that judge must disqualify herself as 
having prejudged the matter. U&I CAN cites no authority, federal or otherwise, 
to support its position.

  DECISION: As discussed, the basis for the motion to disqualify is U&I CAN’s 
assertion that an issue in this proceeding is prejudged, as evidenced by a 
ruling made in another proceeding involving U&I CAN before the same 
Administrative Law Judge.  Commission Staff, U S WEST, and GTE respond that a 
prior ruling by the same Administrative Law Judge in another case does not 
disqualify the Administrative Law Judge in the present case because it does not 
show bias, prejudice or interest by the hearing officer.

  After careful review of RCW 34.05.425, which establishes the grounds for 
disqualification of a hearing officer, the presiding officer will not 
disqualify herself, for the following reasons:  The statute provides that a 
hearing officer may be disqualified only if there is a showing of bias, 
prejudice, or interest against a party.  All that has been brought forward here 
is a ruling that was made in a prior proceeding on a cross-motion for summary 
disposition based on agreed facts provided by the parties, and dealt with 
within the terms of the record made in that proceeding.  A factual 
determination made in case A based on a factual record made in case A does not 
determine the same factual question in case B.  Determination of the fact 
questions in this proceeding will be made on the basis of the record made by 
the parties and the evidence brought into this proceeding, not the prior 
proceeding.

  The terms “bias” and “prejudice” are defined in Black's Law Dictionary. 
Looking first at the definition of bias for a judge: “as used in law regarding 
disqualification of a judge, bias refers to a mental attitude or disposition of 
the judge toward a party to the litigation and not to any views that [she] may 
entertain regarding the subject matter involved.”  The motion here addresses 
solely a prior ruling on subject matter and does not allege any bias toward the 
party nor is there any bias toward     U&I CAN.

            In the same manner, looking at Black’s definition of prejudice, 
“that which disqualifies a judge is the condition of mind which sways judgment 
and renders the judge unable to exercise [her] function of impartiality in a 
particular case.  It refers to mental attitude or disposition of the judge 
toward a party to the litigation and not to any views that [she] may entertain 
regarding the subject matter involved.”  Again,  the issue raised here is a 
subject matter determination based on the facts in a prior record.  There is no 
showing of prejudice against U&I CAN under these definitions and there is not, 
in fact, any prejudice against U&I CAN.  U&I CAN will have the opportunity 
based on the facts in this record to prove a different result than was shown in 
an earlier proceeding.  The presiding officer does not at this point have any 
prejudged idea of what the result in this proceeding will be.

           Although the motion is denied, nothing in the statute appears to 
preclude U&I CAN from bringing the motion again, with specific facts and 
authority to support its position, if it wishes to continue to pursue this 
motion with more support at a later time.  

  MOTION TO SUSPEND HEARING: U&I CAN also moves to suspend these proceedings to 
allow it to petition the full Commission to disqualify the presiding officer, 
or perhaps, as it stated it would, petitioning the courts for a writ of 
mandamus to compel the Commission to disqualify the presiding officer.

  That motion is denied.  No conceivable prejudice to U&I CAN arises from going 
forward with the preliminary stages of this proceeding while U&I CAN considers 
its options and takes whatever steps it believes appropriate relative to 
further motions to the Commission, or petitions to the courts, seeking to 
disqualify the presiding officer.  

  MOTION TO DISMISS IN DOCKET NO. UT-960659:  The presiding officer will not 
rule on a motion made by U&I CAN to dismiss the proceeding in the other docket 
which is the subject of the motion to disqualify.  That is beyond the scope of 
this proceeding.

  INTERVENTIONS:  The petition to intervene by U S WEST is granted, over the 
objection of U&I CAN.  The petition to intervene by GTE is granted, over the 
objection of U&I CAN. 

  Both U S WEST and GTE allege that U&I CAN is operating in the service 
territory in which they serve, that U&I CAN is failing to pay necessary access 
charges, and that they have information about U&I CAN and its operations that 
may be useful to the Commission in determining whether U&I CAN should be 
classified as a telecommunications company and required to register with the 
Commission.  U S WEST asserts that the respondent does, in fact, render 
unauthorized telecommunications services in contravention of Washington law.

  U&I CAN takes the position that neither U S WEST nor GTE have information 
that would assist the Commission to decide whether U&I CAN should register and 
neither U S West nor GTE should be permitted to intervene.

  Commission Staff supports intervention by U S West and GTE.

  It is found that the information to be provided by U S WEST and GTE may be 
useful, and that both have substantial interests in the outcome of this 
proceeding. They should be, and are, allowed to intervene.

  COPIES OF MATERIALS:  An original plus 10 copies of all pleadings, motions, 
briefs, and other prefiled materials shall be filed with the Commission.  The 
parties shall bring adequate copies of exhibits to the hearing to allow 
distribution of three copies to the Administrative Law Judge and one each to 
the witness and the parties.
    
  DISCOVERY:  Commission Staff’s request that the Commission allow discovery in 
accordance with WAC 480-09-480 is granted.  Commission Staff,       U S WEST, 
and GTE will complete their discovery with questions asked so that timely 
answers may be received by February 20, 1998.  Commission Staff, U S WEST, and 
GTE will respond to discovery requests so that timely answers may be received 
by April 16, 1998.

  PROTECTIVE ORDER: Commission Staff’s request for a protective order is 
granted.  The standard form of order will be used with additional language 
proposed by GTE added to protect fully respondent’s confidential data.  A 
protective order will be entered by the Commission as the Second Supplemental 
Order in this proceeding.

  SCHEDULE: In addition to the discovery cut-offs set out above, the following 
schedule is agreed upon for the remainder of the case:

  Commission Staff, U S WEST, GTE 
  File Direct Cases    March 20, 1998

  U&I CAN File Direct and Reply Cases April 17, 1998

  Commission Staff, U S WEST, GTE
  File Reply Testimony   May 1, 1998

  Hearings     May 19-20, 1998

  NOTICE TO PARTIES:  Any objection to the provisions of this order must be 
filed within ten days after the date of mailing of this statement, pursuant to 
WAC 480-09-460(2).  In the absence of such objections, this prehearing 
conference order shall control further proceedings in this matter, subject to 
Commission review.

  DATED at Olympia, Washington, and effective this 4th day of December 1997.

  WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION


      
      MARJORIE R. SCHAER
      Administrative Law Judge