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,

V.

Appellant,

WASHINGTON STATE

DEPARTMENT OF CORRECTIONS,

Respondent.

No. 42651 -0 -II

UNPUBLISHED OPINION

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 ofjurisdiction 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 18.14 and then transferred it to a panel .ofjudges.
No. 42651 -0 -II

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'sletter. 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 `.` not accept for filing any litigation by

Matthew G. Silva without prior consent of the court." Mot. for Disc. Rev., Attachment E -1. In

April 7, 2010, Silva filed a motion to vacate Judge Edwards' 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. 050. 12Under that statute, - a judge against whom a

valid affidavit of prejudice has been filed.loses jurisdiction over the case. Harbor Enters., Inc. v.

Gudjonsson, 116 Wn.2d 283, 285, 803 P.2d 798 (1991); State v. Cockrell, 102 Wn.2d 561, 565,

689 P.2d 32 (1984). And when a judge acts without jurisdiction, his or her decisions are void.

State ex rel. Turner v. Briggs, 94 Wn. App. 299, 302 -03, 971 P.2d 581 (1999).

The Department responds that Silva cannot presumptively file an affidavit of prejudice

before a judge is assigned. But RCW 4. 05012.allows for filing of an affidavit of prejudice "in

any action or proceeding," so the filing of a case is not a prerequisite to the filing of an affidavit

of prejudice. Further, it was the Department who asked Judge Edwards to issue the letter ruling.

W
No. 42651 -0 -II

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 "called to the attention ofthe judge" as required by RCW 4. 050. 12See State v. Smith,

13 Wn. App. 859, 860 -61, 539 P.2d 101 (1975). But Judge Edwards' letter ruling made it

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)(2( 10).

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.

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No. 42651 -0 -II

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

2. 040, 06.it is so ordered.

Vt —a- , ; , D- V O7q g`

VAN DEREN, J.

We concur:

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