After Commissioner Parker: Overturning a Problematic Court Order
I recently wrote about the disqualification procedure in Washington, which can generally be used to disqualify a judge, as long as it is used before that judge makes a discretionary ruling in the case.
Our readers often ask me what can be done after a judge issues a problematic ruling. Naturally, they are often focused on orders issued by the recently terminated Court Commissioner Brian Parker.
In this article, we review one of the processes for vacating an order, specifically, Washington Court Rule 60.
Motion to Vacate
CR 60 provides a mechanism for litigants to ask the court to void, set aside, or vacate a final judgment or order.
Unlike an appeal—which asks a higher court to overturn a decision—a CR 60 motion asks the same court to take back its own decision.
CR 60 outlines specific circumstances where a judge can vacate an order in the interest of justice.
Under CR 60(b), a court may grant relief from a final judgment for several specific reasons. The most common grounds include:
Mistake or Excusable Neglect: Situations involving a genuine mistake, inadvertence, surprise, or excusable neglect in how the judgment was obtained.
Newly Discovered Evidence: Evidence that is material to the case and could not have been reasonably discovered in time to move for a new trial.
Fraud or Misconduct: Instances where the opposing party used fraud, misrepresentation, or misconduct to obtain the order.
Void Judgments: If the underlying judgment is legally void.
Satisfied Judgments: The judgment has already been satisfied, released, or discharged, making it no longer equitable to enforce.
Catch-All Provision: Any other extraordinary reason that legally justifies relief, though courts grant this sparingly.
Procedure to Vacate
CR 60(e) defines the procedures for a motion to vacate. Because courts generally prefer cases to be decided on their merits rather than reopened, the procedure is strict. To proceed under this rule, a litigant must typically follow these steps:
File a Motion and Affidavit: The moving party must submit a formal motion supported by a sworn declaration or affidavit. This document must provide a concise statement of the facts, errors, or new evidence upon which the request is based.
Obtain an Order to Show Cause: The judge will review the initial motion and affidavit. If the court determines that the facts presented could legally justify relief, it will sign an “Order to Show Cause.” This order establishes a hearing date and directs the opposing party to appear and explain why the judgment should not be vacated.
Serve the Opposing Party: The moving party is responsible for ensuring the opposing party (or their attorney) is properly served with the motion, the supporting affidavit, and the Order to Show Cause well before the hearing date.
Attend the Hearing: Both parties attend the scheduled hearing to present their arguments. The judge will evaluate the merits and make a final ruling on whether the original order will be vacated or remain in place.
Time Limits for Filing
Timing is critical when attempting to vacate an order. Generally, a motion must be filed within a “reasonable time.”
For many of the most common grounds—such as mistakes, excusable neglect, newly discovered evidence, and fraud—the motion must be filed within one year of the order’s entry.
Should You Hire an Attorney?
It is generally a good idea to speak to an attorney about your specific legal situation. It is worth noting (especially for our Clallam County readers) that attorneys in Washington state often make court appearances remotely and practice in multiple counties. Thus, you are not limited to hiring an attorney who resides in the same county.
Understandably, not everyone is able to hire an attorney. If you cannot afford an attorney, there are some organizations that may be able to provide an attorney for free or at a reduced cost.
WashingtonLawHelp, which is maintained by Northwest Project Justice, provides a list of legal aid available in each county. They also provide a number of resources to self-represented litigants.