Matthew G. Silva, V Wa Dept Of Corrections ( 2013 )

FILED
COURT OF APPLr -
ALS
DIVISION 1I
2013 APR -9 Ark 9: 03
STS OF ' S t X80 d
By
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MATTHEW G. SILVA,
Appellant, No. 42651 0 II
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V.
UNPUBLISHED OPINION
WASHINGTON STATE
DEPARTMENT OF CORRECTIONS,
Respondent.
VAN DEREN, J. —Matthew Silva appeals from the trial court's entry of letter rulings
denying his motion to proceed in forma pauperis and prohibiting him from filing any litigation in
Grays Harbor Superior Court, arguing that his submission of an affidavit of prejudice before the
rulings were entered deprived the judge of jurisdiction to enter the rulings. We vacate the letter
rulings and remand.'
On October 21, 2008, Silva submitted a summons and complaint to Grays Harbor
Superior Court seeking to commence a proceeding against a Washington State Department of
Corrections (Department)sergeant and against the attorney general. He did not submit a filing .
fee but did submit a motion to proceed in forma pauperis. On December 11, 2008, an assistant
attorney general sent a letter to Judge David Edwards of the Grays Harbor Superior Court. The
A commissioner of this court initially considered Silva's appeal as a motion on the merits under
RAP 18. 4 and then transferred it to
1 a panel of judges.
.
No. 42651 0 II
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letter stated that Silva had filed approximately 40 cases against the Department and its staff. It
asked that the Grays Harbor Superior Court restrict Silva from filing any further legal actions
without permission of the court. On December 22,2008, Silva responded to the assistant
attorney general's letter. He sent the response to Judge Edwards, among others. Attached to his
response was a declaration of prejudice against Judge Edwards. On December 29, 2008, Judge
Edwards issued a letter ruling ( )
1 denying Silva's motion to proceed in forma pauperis and (2)
directing the Grays Harbor Superior Court Clerk to `.` accept for filing any litigation by
not
Matthew G. Silva without prior consent of the court."Mot. for Disc. Rev.,
Attachment E 1. In
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April 7,2010, Silva filed a motion to vacate Judge Edwards's letter ruling. On May 25,2010,
Judge Edwards issued another letter ruling advising Silva that his motion would not be accepted
for filing. Silva timely filed a notice of appeal from the May 25,2010, ruling. This court
subsequently converted the notice of appeal to a notice of discretionary review and then granted
discretionary review.
Silva argues that Judge Edwards lacked jurisdiction to enter his letter rulings after having
been sent an affidavit of prejudice RCW 4.2. Under that statute,a judge against whom a
050.
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valid affidavit of prejudice has been filed.oses jurisdiction over the case. Harbor Enters.,Inc. v.
l
Gudjonsson, 116 Wn. d 283, 285, 803 P. d 798 (1991);
2 2 State v. Cockrell, 102 Wn. d 561, 565,
2
689 P. d 32 (1984).And when a judge acts without jurisdiction, his or her decisions are void.
2
State ex rel. Turner v. Briggs, 94 Wn.App. 299, 302 03,971 P. d 581 (1999).
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The Department responds that Silva cannot presumptively file an affidavit of prejudice
before a judge is assigned. But RCW 4.2.allows for filing of an affidavit of prejudice "in
050
1
any action or proceeding," the filing of a case is not a prerequisite to the filing of an affidavit
so
of prejudice. Further, it was the Department who asked Judge Edwards to issue the letter ruling.
W
No. 42651 0 II
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It cannot now contend that there was no proceeding before Judge Edwards. The Department also
responds that Silva's affidavit of prejudice is ineffective because it was never filed and because it
was not " alled to the attention of the judge"as required by RCW 4.2. See State v. Smith,
c 050.
1
13 Wn. App. 859, 860 61,539 P. d 101 (1975). Judge Edwards's letter ruling made it
- 2 But
impossible for Silva to file any pleadings, including an affidavit of prejudice. And Silva sent the
affidavit of prejudice to Judge Edwards and so called it to his attention. Therefore, Judge
Edwards lacked jurisdiction to enter the letter rulings.
The Department raises a number of other responses. First,the Department responds that
Silva's appeal is not timely because he did not timely appeal from the December 29, 2008, letter
ruling. But he did timely appeal from the May 25, 2010, letter ruling denying his motion to
vacate. RAP 2. (
a)(
10).
2
Second, the Department responds that Silva's appeal is moot because his 2008 complaint
challenged his cell assignment at Stafford Creek Corrections Center but Silva has since been
moved to the Washington State Penitentiary. But this argument is premature because Judge
Edwards lacked jurisdiction to prohibit Silva from filing his complaint.
Third,the Department responds that Silva's appeal is moot because the 2008 complaint
was not timely filed or served. But the court prohibited Silva from filing the complaint, so he
could not timely file his complaint. And his argument that the complaint was not properly
served is premature because Judge Edwards lacked jurisdiction to prohibit Silva from filing his
complaint.
Fourth, the Department responds that Silva's appeal is moot because the statute of
limitations has expired. But this argument is premature because Judge Edwards lacked
jurisdiction to prohibit Silva from filing his complaint and,thus, tolling the statute of limitations.
3
No. 42651 0 II
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Finally,the Department responds that Judge Edwards did not abuse his discretion when
he denied Silva's motion to proceed in forma pauperis and directed the Grays Harbor Superior
Court Clerk to not accept any filings from Silva. But Judge Edwards was deprived of
jurisdiction, and therefore of discretion, by Silva's submission of the affidavit of prejudice.
Silva demonstrates that Judge Edwards lacked jurisdiction to enter the letter rulings after
Silva submitted an affidavit of prejudice. We therefore vacate those letter rulings and remand
Silva's motion to proceed in forma pauperis to be considered by another judge. The Department
may then raise any of the defenses that were rejected in this opinion as premature.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
t , V;O7q g`
Va-D-— ,
VAN DEREN, J.
We concur:
4