1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U S WEST'S RESPONSE TO MOTION TO DISQUALIFY - 1 - a:\response.doc U S WEST, Inc. 1600 7th Ave., Suite 3206 Seattle, WA 98191 Telephone: (206) 343-4000 Facsimile: (206) 343-4040 BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of Determining the Proper Classification of: UNITED & INFORMED CITIZEN ADVOCATES NETWORK. ) ) ) ) ) ) DOCKET NO. UT-971515 U S WEST'S RESPONSE TO U & I CAN'S MOTION TO DISQUALIFY U S WEST Communications, Inc. ("U S WEST"), by its attorneys, submits the following response to the oral Motion to Disqualify Judge Schaer made by Respondent United & Informed Citizen Advocates Network ("U & I CAN"). 1. At a prehearing conference in this matter held on November 18, 1997, U & I CAN moved to disqualify Administrative Law Judge Schaer on the grounds that Judge Schaer had prejudged an issue in this docket in a finding made by her in an earlier docket, Advocates Network v. Pacific Northwest Bell Telephone Co., No. UT-960659 (the "Access Charges Action"). U & I CAN specifically objected to Judge Schaer's finding in the Access Charges Action that U & I CAN does not operate a private telecommunications system. See, generally, Transcript of Proceedings filed on November 18, 1997 at 4:8-5:2. 2. At the prehearing conference, Judge Schaer denied U & I CAN's oral motion. Subsequently, on December 5, 1997, Judge Schaer issued her First Supplemental Order in this docket, setting forth more fully her reasons for denying U & I CAN's disqualification motion. Judge Schaer held that RCW 34.05.425(3) sets forth the criteria for disqualification. According to Judge Schaer, an administrative law judge may only be disqualified due to prejudice, bias or interest against a party. Judge Schaer found that bias or prejudice to be limited to mental attitudes or dispositions towards a party (as opposed to issues). U & I CAN failed to show bias or prejudice; accordingly, Judge Schaer denied the motion. See, generally, First Supplemental Order at 1-3. 3. On December 4, 1997, U & I CAN sent a letter to the Commission, requesting the Commission to disqualify Judge Schaer on the grounds that she has prejudged an issue in this docket based upon her decision in the Access Charges Action. The Commission ordered that U & I CAN's letter be treated as an objection to the First Supplemental Order in this docket. 4. U S WEST submits that U & I CAN's objection should be overruled and that the Commission should affirm Judge Schaer's decision to deny U & I CAN's Motion to Disqualify. U S WEST believes that Judge Schaer properly apprehended Washington law pertaining to disqualification and applied the law correctly to these facts. 5. The Supreme Court has identified three bases for disqualifying a judge, regardless of whether the proceeding is before a court or an administrative body: 1. prejudgment concerning issues of fact about parties in a particular case; 2. partiality evidencing a personal bias or personal prejudice signifying an attitude for or against a party as distinguished from issues of law or policy; and 3. an interest whereby one stands to gain or lose by a decision either way. 637 P.2d 940 (1981) citing Buell v. Bremerton, 80 Wn.2d 518, 495 P.2d 1358 (1972). 6. Notably, U & I CAN does not claim that Judge Schaer has a personal animosity toward U & I CAN or that Judge Schaer has a personal interest in this proceeding. Rather, U & I CAN bases its entire motion upon its claim that Judge Schaer has prejudged this matter her decision based upon her decision in the Access Charges Action. See U & I CAN letter dated December 4, 1997 at page 1. U & I CAN asserts that Judge Schaer has found that U & I CAN is not a private telecommunications system under any circumstances. 7. U & I CAN's position is not well-taken. Mere exposure to adjudicative facts is not a basis for disqualification. Ritter, supra, 96 Wn.2d at 513, citing Withrow v. Larkin, 421 U.S. 35 (1975). In Ritter, the Supreme Court found that a hearings officer was not disqualified from sitting on an appeals board where the hearings officer participated in an earlier summary proceeding as a witness. The critical inquiry in Ritter (as in the cases upon which it relies) is whether the finding in the earlier proceeding amounts to a prejudgment on the ultimate issue in the subsequent proceeding, regardless of the facts to be adduced of the subsequent proceeding. See Ritter, 96 Wn.2d at 514 (. . . "the board's earlier determination of 'probable cause' for suspension did not amount to a prejudgment on ultimate issues.") The United States Supreme Court has noted that an earlier finding does not amount to a prejudgment where the earlier finding is subject to reversal based upon a more complete record: Indeed, just as there is no logical inconsistency between a finding of probable cause and an acquittal in an earlier proceeding, there is no incompatibility between the agency filing a complaint based on probable cause and a subsequent decision, when all the evidence is in, that there has been no violation of the statute. Withrow, supra, 421 U.S. at 57. 8. In the Access Charges Action, Judge Schaer made it abundantly clear that she was not prejudging U & I CAN's status as a telecommunications company. Indeed, her finding in that case was based upon an abbreviated record, necessitated by U & I CAN's request for a summary determination: This order also does not seek to determine whether U & I CAN should be classified as a telecommunications company subject to Commission jurisdiction. That issue is framed by the counterclaim of U S WEST, but its determination is beyond the scope of this order. Because the evidence on the issue is incomplete and conflicting, it is not subject to summary determination. Nor is the determination of whether U & I CAN is a telecommunications company necessary to resolution of the questions presented by the complaint. If U S WEST or the Commission Staff wish to pursue a classification of U & I CAN, they may do so in a separate classification proceeding. (Second Supplemental Order, Docket No. UT-960659 at pp. 2-3). Moreover, in this docket, Judge Schaer made it plain that she had not prejudiced any issues in this proceeding: A factual determination made in Case A based upon a factual record made in Case A does not determine the same factual question in Case B. . . . 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. (First Supplemental Order at 2-3). One cannot imagine a plainer statement from a judge that she has not prejudged a case. 9. Stripped to its essentials, U & I CAN's motion is based upon a claim that a judge should disqualify herself because she is familiar with certain facts through an earlier proceeding. The Washington Supreme Court, however, has unequivocally rejected U & I CAN's position. Ritter, supra. An administrative law judge is not presumed to be biased. Id., 96 Wn.2d at 513. U & I CAN has not shown evidence to override that presumption and, accordingly, its motion should be denied. Respectfully submitted this ___ day of _____________________, 1998. U S WEST Communications, Inc. ________________________________ Peter J. Butler, Attorney at Law