Petition for Writ of Certiorari — Laura Cozza, Petitioner v. PNC Bank, National Association

Case No.

In the

Supreme Court of the United States

LAURA COZZA,

Appellant-Petitioner,

v.

PNC BANK, NATIONAL ASSOCIATION,

Appellee-Respondent.

On Petition for Writ of Certiorari from

Washington State Court of Appeals Division One

PETITION FOR WRIT OF CERTIORARI

SCOTT E. STAFNE , Counsel of Record

STAFNE LAW Advocacy & Consulting

239 North Olympic Avenue

Arlington, WA 98223

360.403.8700

scott@stafnelaw.com

i

QUESTIONS PRESENTED

Did judicial officer, the Honorable Robert E. Olson, legitimately exercise the judicial power of the

Superior Court for Whatcom County, Washington as

a judge of that court when he failed to address challenges to his partiality made pursuant to the Fourteenth Amendment and a comparable state statute?

Did judicial officer, the Honorable Robert E. Olson, after refusing to consider a request for his

recusal, violate the Fourteenth Amendment when he

refused to accept the party’s contention that the judicial foreclosure of Cozzas’ property was within that

court’s equity jurisdiction and then failed to make

any findings of fact with regard to his fashioning equitable relief in favor of PNC Bank and other hypothetical plaintiffs?

ii

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 DISCLOSURE STATEMENT

The Plaintiff named in the “Complaint for Deed

of Trust Foreclosure (Complaint)” is identified as

“PNC BANK, NATIONAL ASSOCIATION, its successors in interest and/or assigns”. The Plaintiff

shall be referred to herein as PNC Bank and others

so as to emphasize Plaintiffs’ indefinite and amorphous nature.

The Defendants named in the Complaint are

Laura Cozza, Matthew Cozza, Citifinancial, Inc. and

Occupants of Premises. Laura Cozza is the only Petitioner herein.

Laura Cozza is a natural person.

iii

RELATED PROCEEDINGS

Pursuant to this Court’s Rule 14.1(b)(iii), the following proceedings are related to this case:

PNC Bank, National Association, its successors

in interest and/or assigns, Plaintiffs, v. Matthew

Cozza; Laura Cozza; Citifinancial Inc.; and Occupants of the Premises, Defendants, Whatcom County

Superior Court Case No. 16-2-01090-0. (Trial court

granting judgment, App. 33a–35a )

PNC Bank National Association, its successors

in interest and/or assigns, v. Laura Cozza, Appellant; Matthew Cozza; Citifinancial, Inc.; Occupants

of the Premises, Defendants, Washington Court of

Appeals, Case No. 80966-1-I (Court of Appeals affirming judgment, App. 6a–32a)

PNC Bank, National Association v. Lara Cozza,

Washington Supreme Court Case No. 99796-9 (Supreme Court’s refusal of discretionary review, App.

2a–3a)

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................................... i

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 DISCLOSURE STATEMENT .............. ii

RELATED PROCEEDINGS ................................... iii

TABLE OF AUTHORITIES .................................... v

PETITION FOR A WRIT OF CERTIORARI .......... 1

DECISIONS BELOW .............................................. 1

JURISDICTION ....................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................... 2

STATEMENT ........................................................... 2

REASONS FOR GRANTING THE PETITION ...... 5

A. Introduction ...................................................... 5

B. Review should be granted because judicial

officers are required to consider judicial partiality

before exercising judicial power as judges ........... 6

C. Review should be granted because Judicial

Officer Olson failed to act as a neutral

adjudicator when he refused to resolve the judicial

foreclosure claim in equity .................................. 13

D. Review should be granted because of the

importance of judicial neutrality to the People and

the operation of their government ....................... 17

CONCLUSION ....................................................... 20

TABLE OF APPENDICES .................................... 1a

v

TABLE OF AUTHORITIES

Federal Cases

Cain v. White,

937 F.3d 446 (5th Cir. 2019) ...................... 11, 19

Cal. Pub. Emps. Ret. Sys. v. ANZ Sec., Inc.,

137 S. Ct. 2042, 198 L. Ed. 2d 584 (2017) ...... 14

Caliste v. Cantrell,

937 F.3d 525 (5th Cir. 2019) ...................... 11, 19

Greenlaw v. United States,

554 U.S. 237, 128 S. Ct. 2559, 171 L. Ed. 2d 399

(2008) ............................................................... 15

Holland v. Florida,

560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130

(2010) ............................................................... 16

Rippo v. Baker,

137 S. Ct. 905, 197 L. Ed. 2d 167 (2017) ........ 10

Todd v. United States,

158 U.S. 278, 15 S. Ct. 889, 39 L. Ed. 982 (1895)

............................................................................. 8

Tumey v. Ohio,

273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)

...................................................................... 17, 19

vi

United States v. Sineneng-Smith,

140 S. Ct. 1575, 206 L. Ed. 2d 866 (2020) ...... 15

Williams v. Pennsylvania,

579 U.S. 1 , 136 S. Ct. 1899, 195 L. Ed. 2d 132

(2016) ............................................................... 10

Young v. United States,

535 U.S. 43, 122 S. Ct. 1036, 152 L. Ed. 2d 79

(2002) ............................................................... 16

Constitutional Provisions

U.S. Const. amend. V ............................................. 8

U.S. Const. amend. XIV ................................ passim

Wash. Const. art. IV § 6 .......................................... 3

Federal Statutes

28 U.S.C. § 455 ..................................................... 18

28 U.S.C. § 2101 (c) ................................................ 1

State Cases

Blanchard v. Golden Age Brewing Co. ,

188 Wash. 396, 415, 63 P.2d 397, 405 (1936)

............................................................................. 3

Borton & Sons, Inc. v. Burbank Props., L.L.C. ,

196 Wash. 2d 199, 471 P.3d 871 (2020) .......... 16

vii

Columbia Cmty. Bank v. Newman Park, L.L.C.,

177 Wash. 2d 566, 304 P.3d 472 (2013) ....... 4, 15

JPMorgan Chase Bank, N.A. v Stehrenberger

193 Wash. App. 1035 (2016) ............................. 9

Kok v. Tacoma Sch. Dist. No. 10,

179 Wash. App. 10, 317 P.3d 481 (2013) .......... 9

Lake v. State Health Plan for Teachers & State

Emps. ,

376 N.C. 661, 852 S.E.2d 888 (2021) .............. 12

Sinclair v. Betlach,

1 Wash. App. 1033, 467 P.2d 344 (1970) .......... 4

West v. Wash. Ass’n of Cnty. Officials,

162 Wash. App. 120, 252 P.3d 406 (2011) ...... 11

State Statutes

Wash. Rev. Code § 2.10.040 ................................. 11

Wash. Rev. Code § 2.28.030 .......................... passim

Court Rules

Supreme Court Rule 10 ....................................... 17

Supreme Court Rule 14.1(b)(iii) ........................... iii

Supreme Court Rule 29.6 ...................................... ii

Washington CJC Rule 2.11 ............................. 10, 13

viii

Other

Bible. NLT. Deuteronomy 10:17-18,

https://www.biblegateway.com/versions/NewLiving-Translation-NLT-Bible/ (2022) .............. 7

Bible. NLT. Leviticus 19:15

https://www.biblegateway.com/versions/NewLiving-Translation-NLT-Bible/ (2022) .............. 7

Bible. NLT, Matthew 6:24

https://www.biblegateway.com/versions/NewLiving-Translation-NLT-Bible/ (2022) .............. 7

Clifford S. Fishman, Old Testament Justice,

51 Cath. U. L. Rev. 405, 411-14 (2002) ............. 7

Day v. Savage, Hobart

(3d ed. i67i)85(K.B. 1614) ................................. 7

Dr. Bonham’s Case,

8 Colo. 107a, 118a, 77 Eng. Rep. 638 (C.P. 1610)

............................................................................. 7

Earl of Derby’s Case,

12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614)

............................................................................. 7

Fabian Gelinas,

The Dual Rationale of Judicial Independence 1,

9-10 (2011) .......................................................... 6

Federal Judicial Center, Jurisdiction: Equity

ix

https://www.fjc.gov/history/courts/jurisdictionequity ................................................................ 14

Hamilton, A.,

Federalist Paper No. 80 (1788) .......................... 8

Hamilton, A.,

Federalist Paper No. 78 (1788) ........................ 20

Howard L. Oleck,

Historical Nature of Equity Jurisprudence, 20

Fordham L. Rev. 23, 25-40 (1951) .................. 14

Hudson, Alastair,

Principles of Equity and Trusts, 2nd ed., p. 5

(London: Cavendish Publishing, 2001). .......... 14

Joseph J. Story LL. D,

Commentaries on Equity Jurisprudence as

Administered in England and America, Vol. I

(Fourth Edition 1864)....................................... 14

Justinian Codex,

3.5.1, imperial decree (376 AD) ........................ 7

Madison, J.,

Federalist Paper No. 10 (1787) .......................... 8

Madison, J.,

Federalist Paper No. 51 (1788) .......................... 5

x

Sir Nicholas Bacon’s Case,

2 Dyer 220b. (1563) .......................................... 9

Washington Supreme Court. Civil Legal Needs

Study Update (2015)

https://ocla.wa.gov/wp-content/uploads/2015/10/CivilLegalNeedsStudy_October2015_V21_Final10_14_15.pdf (2015) ........... 6

Year-End Report on the Federal Judiciary, Chief

Justice Roberts

https://www.supremecourt.gov/publicinfo/yearend/2021year-endreport.pdf (2021) ............ 17, 18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Laura Cozza respectfully petitions

for a writ of certiorari to review the summary judgments entered by the Superior Court for Whatcom

County, Washington, through judicial officer, the

Honorable Robert E. Olson, foreclosing on her real

property, and denying her counterclaims for relief.

These judgments were affirmed by Division One of

the Washington Court of Appeals.

DECISIONS BELOW

The judgment of the Whatcom County, Washington Superior Court is unpublished. Appendix 4

(App.). The decision of the Washington Court of Appeals for Division One affirming that decision is unpublished. App. 3 . The decision of the Washington

Court of Appeals denying Cozza’s Motion for Reconsideration is unpublished. App. 2. The decision of the

Washington Supreme Court denying Cozza’s Petition for Discretionary Review is also unpublished.

App. 1.

JURISDICTION

The Supreme Court of Washington denied discretionary review of the Washington Court of Appeals decision affirming the Superior Court’s grant

of summary judgment in favor of PNC Bank and its

successors or assigns on October 6, 2021. See App.

2 a. Accordingly, Cozza’s Petition for Certiorari is being timely filed within this Court’s 90-day filing period and jurisdiction is being invoked pursuant 28

U.S.C. § 2101(c).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory

provisions involved in this matter are reproduced in

Appendix six.

STATEMENT

This Petition seeks review of judgments adjudicating cross motions for summary judgment by

Washington State judicial officer, the Honorable

Robert E. Olson, in favor of PNC Bank and unidentified successors and assigns and against Laura

Cozza, a single person and parent, who is now divorced.

The case below involved a judicial real estate

foreclosure in which the Washington state judicial

officer assigned to adjudicate the action refused to

consider a challenge to his neutrality as a judge under the Fourteenth Amendment based on precedents

of this Court as well as pursuant to a comparable

Washington statute, Wash. Rev. Code 2.28.030(1).

This statute imposes an essentially identical duty on

Washington State judicial officers to recuse themselves from adjudicating any case as a judge in

which they have an interest in the outcome. That

statute provides in pertinent part:

A judicial officer is a person authorized to act

as a judge in a court of justice. Such officer

shall not act as such in a court of which he

or she is a member in any of the following

cases:

3

(1) In an action, suit, or proceeding to

which he or she is a party, or in which he or

she is directly interested.; . . .

After PNC, its successors and/or assigns moved

for summary judgment foreclosing on the Cozzas’

property and dismissing the Cozzas’ counterclaims,

the Cozzas defended against those motions and filed

cross motions for summary judgment, including one

which sought a summary judgment that the foreclosure action be adjudicated within the superior

court’s equity jurisdiction. 1

This motion regarding the necessity for the superior court deciding the foreclosure claim in equity

was denied, notwithstanding the contention that the

superior court must resolve this claim pursuant to

its equity jurisdiction was unopposed and clearly correct; PNC and “associates” admitting that the foreclosure should occur in equity. “PNC agrees that the

claims for judicial foreclosure are equitable in nature.” In fact, PNC argued that “the balance of equities in this case leads to a clear result in PNC’s

favor.”

The case below, like most cases occurring within

courts’ equity jurisdiction, was a very fact intensive

litigation which Cozza asserts should have been resolved by a factfinder after a trial. Cozza never got

See Wash. Const. art. IV, Section 6 (Superior courts and

district courts have concurrent jurisdiction in cases in equity. .

. .” Cf. Blanchard v. Golden Age Brewing Co., 188 Wash. 396,

415, 63 P.2d 397, 405 (1936) (Holding that because

Washington’s constitution vests judicial power over cases in

equity the political powers cannot abrogate or frustrate such

authority.)

1

4

such a trial—or even the semblance of fact-finding

on summary judgment—before a neutral judge because the challenged judicial officer held that this

would be superfluous. In this regard, judicial officer

Olson ruled orally:

It is well settled in Washington State that

findings of fact and conclusions of law are

not required in summary judgment proceedings, with some reviewing courts describing

them as completely superfluous. See Sinclair v. Betlach, 1 Wash. App. 1033 at 1034.

This is undoubtedly because any reviewing

court will do so de novo engaging in the same

inquiry as this Court. See Columbia Community Bank v. Neuman Park, LLC, 177 Wash.

2d 566 at 573.

Following oral argument and after considering the pleadings and cross-pleadings

of the parties in the light most favorable to

the other party, the Plaintiff ’s [PNC and successors’ or assigns’] motion for summary

judgment is granted. The Defendants’ [Cozzas’] motion for summary judgment is denied.

Verbatim Report of Proceeding Friday October 11,

2019, p. 7.

Then Judicial Officer Olson had counsel for PNC

and “whoever” prepare two Orders: One granting

summary judgment to PNC, its successors, or assigns and the other denying summary judgment to

the Cozzas. Both Orders contained the same operative language, which stated: “IT IS ORDERED that

5

Plaintiff ’s Motion for Summary Judgment on Judicial Foreclosure Claim and for Dismissal of Defendants’ Cross-Motion for Summary Judgment is

granted and that Defendants’ Cross-Motion for Summary Judgment is denied.”

This Petition seeks review of the judicial officer’s

and Court of Appeals’ (1) Refusal to consider Cozza’s

challenge to the judicial officer’s neutrality pursuant to the Fourteenth Amendment and Washington

statutory provision, Wash. Rev. Code 2.28.030; and

(2) Refusal to accept the position of the parties that

the judicial foreclosure should be resolved within the

superior court’s equity jurisdiction, which required

that a neutral judge engage in fact-finding capable

of appellate review before granting the equitable

remedy of foreclosure or fashioning some other remedy to achieve a just result.

REASONS FOR GRANTING THE PETITION

A. Introduction

This nation’s founders agreed that “Justice is

the end of government. It is the end of civil society.

It ever has been and ever will be pursued until it be

obtained, or until liberty be lost in the pursuit.”

James Madison, Federalist Paper No. 51 (February 8, 1788). 2

Unfortunately, it appears the government of

Washington is ready to sacrifice justice as a goal for

litigants defending against foreclosures occurring in

Accessble at: https://www.congress.gov/resources/display/cont

ent/The+Federalist+Papers#TheFederalistPapers-51

2

6

this State. In fact, Washington’s Supreme Court admits justice has been lost in Washington for many of

those who must seek it from this State’s courts. The

Executive summary of the Washington State Civil

Legal Needs Study Update released by the Washington State Supreme Court in October 2015 begins:

“Justice is absent for low-income Washingtonians

who frequently experience serious legal problems.” 3

And as this case makes clear, the problem of lack

of justice in Washington’s court system for people

who are not rich, especially the victims of inequitable foreclosures, has grown worse in recent years as

many of this State’s judicial officers ignore those important lessons about justice which history has provided humanity.

B. Review should be granted because judicial

officers are required to consider judicial partiality

before exercising judicial power as judges

Since the dawn of civilization human beings

have sought justice. And they have intuitively understood that those who would be responsible for

providing justice in the context of adjudicating cases

and controversies must be impartial decision-makers. See e.g., Fabian Gelinas, The Dual Rationale of

Judicial Independence 1, 9-10 (2011) (discussing ancient roots of the concept of adjudicatory justice,

which trace back to Egypt’s First Intermediate

The Washington Supreme Court’s “Civil Legal Needs Study Update” can be accessed at: https://ocla.wa.gov/wp-content/uploads/2015/10/CivilLegalNeedsStudy_October2015_V21_Final

10_14_15.pdf

3

7

Period and also appear in Babylonian inscriptions

about this same period of time.) See also Clifford S.

Fishman, Old Testament Justice, 51 Cath. U. L. Rev.

405, 411-414 (2002); Leviticus 19:15; Deuteronomy

10:17-18. Cf. New Living translation, Matthew 6:24.

The classic principle of judicial neutrality, and

the one to which we in the United States still give

lip service today, is “ne quis in sua causa judicet vel

jus sibi dicat,” which means “no one shall be his own

judge or decide his own case.” History documents

that this principle was part of Roman law as early

as 376 AD, see e.g., Justinian Codex 3.5.1, imperial

decree of year 376 AD, which stated: “We [Emperors

Valens, Gratian and Valentinian] direct by this general law that no one shall be his own judge or decide

his own case. For to give anyone power to render a

decision in his own case would be iniquitous.”

This principle of Roman law became a part of

European legal principles well before the founding of

the United States. Indeed, the principle that a judge

at common law was not competent to adjudicate a

matter in which he had a direct financial interest

was recognized as early as 1563, see Sir Nicholas Bacon’s Case (1563) 2 Dyer 220b., and was well established before the lack of such justice in the King’s

courts of North America became a rallying cry for

revolution. See e.g., Dr. Bonham's Case, 8 Co. Rep.

107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610); Earl

of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390

(K.B. 1614); and Day v. Savage, Hobart (3d ed. i67i)

85 (K. B. 1614).

By the time the Constitution of the United

States was written this principle of judicial

8

neutrality was so well established around the world

that it was incorporated into this nation’s organic

law by its Framers both as a component of its separation of governmental powers framework and as a

procedural aspect of federal due process under the

Fifth Amendment. Indeed, James Madison observed

in Federalist Paper No. 10 in 1787—just before the

ratification of the Constitution on June 1, 1788—

that “No man is allowed to be a judge in his own

cause, because his interest would certainly bias his

judgment, and, not improbably, corrupt his integrity.” And Alexander Hamilton wrote in Federalist

Paper No. 80 on June 21, 1788 (three weeks after the

Constitution’s ratification) that “[n]o man ought certainly to be a judge in his own cause, or in any cause

in respect to which he has the least interest or bias.”

As can be seen from these facts, the principle

that justice must be afforded to litigants through

neutral adjudicators has long been the practice of

civilized nations generally and the United States

specifically. So, it is no surprise that in 1891 the political branches of Washington State carefully codified this principle into law in such a way as to make

clear that a judicial officer has no authority to act as

a judge of a court of justice unless s/he first determines that s/he has no interest in the case being adjudicated. See Wash. Rev. Code 2.28.030 (1). Cf.

Todd v. United States, 158 U.S. 278, 15 S. Ct. 889,

39 L. Ed. 982, (1895)(“ A court is not a judge, nor a

judge a court. A judge is a public officer, who, by virtue of his office, is clothed with judicial authorities.

A court is defined to be a place in which justice is

judicially administered.” Id. 158 U.S. at 284.)

9

Under these long-established principles of justice both judicial officer Olson and the Court of Appeals were required to acknowledge and conduct a

judicial inquiry with regard to those challenges

made to judicial officer Olson’s partiality.

Judge Olson erred by not considering the challenge to his partiality at all. The Court of Appeals

did essentially the same thing by reinterpreting the

nature of Cozza’s challenge from being one based on

the Fourteenth Amendment and Wash. Rev. Code

2.28.030 to one based solely on a Washington Court

Rule. In this regard, the Court of Appeals essentially

devised the argument it decided:

The Due Process Clause entitles a person to

an impartial and disinterested tribunal in

both civil and criminal cases. Id. at 90 (quoting Marshall v. Jerrico, Inc., 446 U.S. 238,

242, 100 S. Ct. 1610, 64 L. Ed. 2d 1980)). But

because “the common law and state codes of

judicial conduct generally provide more protection than due process requires” courts

typically “resolve questions about judicial

impartially (sic) without using the constitution.” JPMorgan Chase Bank, N.A. v. Stehrenberger, noted at 193 Wn. App 1035, slip

op. At 3-4 (2016); see GR 14.1. Under the

Code of Judicial Conduct, a judge must

recuse if their impartiality may reasonably

be questioned. West v. Washington Ass’n of

County Officials, 162 Wn.App. 120, 136-37,

252 P.3d 406 (2011). But recusal is unnecessary if a judge’s interest is de minimis. Kok

v. Tacoma Sch. Dist. No 10, 179 Wn. App 10,

10

26, 317 P.3d 481 (2013). De minimis interests are insignificant and include “an interest in the individual holdings within a

mutual or common investment fund.” Stehrenberger, slip op. At 5 (quoting Comment 6

to the CJC 2.11) 4

App. 2a

The problem with the Court of Appeals’ analysis

is that Cozza did not challenge judicial officer Olson’s partiality based on Washington’s Code of Judicial Conduct, but did so on the basis of the

Fourteenth Amendment to the United States Constitution and the explicit language of Wash. Rev. Code

2.28.030, which paraphrases the holdings of this

Court’s Fourteenth Amendment precedents, which

set an objective standard for recusal and make clear

that recusal is required when partiality or an appearance of partiality exists. See e.g., Rippo v. Baker,

137 S. Ct. 905 (2017); Williams v. Pennsylvania, 136

S. Ct. 1899 (2016). See also infra.

This is significant for at least three reasons.

First, Fourteenth Amendment precedent sets different legal standards for recusal based on partiality—

and appearance of partiality—than does Washington’s Appearance of Fairness Doctrine and Code of

Judicial Conduct.

For example, Courts applying federal due process

principles have held that where state laws put state

4 There is no evidence in the record which suggests that judge’s

retirement accounts are a mutual fund or common investment

fund.

11

judges in situations which compromise or appear to

compromise those judges’ neutrality the decisions of

those judges are void. See e.g., Cain v. White, 937

F.3d 446 (5th Cir. 2019) cert. denied 140 S. Ct. 1120

(2020); Caliste v. Cantrell, 937 F.3d 525 (5th Cir.

2019) cert. denied 140 S. Ct. 1120 (2020). Caine and

Caliste demonstrate that a state’s political branches

can create institutional federal due process problems

under the Fourteenth Amendment by enacting statutes that compromise or appear to compromise the

impartiality of state judges.

This case presents a similar issue, i.e., whether

Washington’s political branches enactment of laws

requiring judges’ retirement accounts be commingled with other government workers retirement accounts 5, before judicial questions which would have

an impact on the value of those investment were

about to be decided, calls into question the impartiality of judges to make decisions regarding such matters which increase the value of state workers’ (and

their own) retirement investments.

The second reason the Court of Appeals reliance

on Washington’s Appearance of Fairness Doctrine

based on Washington’s Code of Judicial conduct

analysis is not appropriate here is because it ignores

that evidence offered by Cozza that at the time her

case was being litigated judges and co-workers retirement accounts had billions of dollars invested in

mortgages and mortgage-backed securities, which

5See e.g., Wash. Rev. Code 2.10.040, App 47a-48a; 2.14.114,

App. 48a-49a; 41.40.023, App. 49a-57a; 41.40.095, App. 58a59a; 41.40.124, App. 59a-61a.

12

would likely lessen in value if courts sitting in equity

were required to factually analyze whether fraud

and illegality were involved in these subprime loans.

But nowhere does the Court of Appeals acknowledge

the magnitude of these numbers; much less provide

any reasoning explaining why this billion plus dollars of retirement fund assets constitutes a de minimis amount for purposes of resolving the

institutional Fourteenth Amendment claim being

asserted by Cozza.

Finally, a third problem with the Court of Appeals resolution of the neutrality issue Cozza posed

is that the Court of Appeals imposes the burden on

Cozza to come forward and identify the partiality

problem for judicial officers. Under this Court’s

Fourteenth Amendment precedent and the clear language of Wash. Rev. Code 2.28.030, it is the judicial

officer who must determine whether he is—or appears to be—a neutral adjudicator before exercising

the judicial power of a judge of a court of justice adjudicating the merits of a case.

And it should not be overlooked that appellate

courts in other States interpret identical language

from their Codes of Judicial Conduct to require

judges to consider these types of conflicts without the

necessity of any party having raise them or prove

facts about which judges and judicial officers should

be aware. See e.g., Lake v. State Health Plan for

Teachers & State Emples., 376 N.C. 661, 852 S.E.2d

888 (2021)(Members of North Carolina Supreme

Court recuse themselves pursuant to N.C. Code Jud.

Conduct 3(D) from adjudicating a case in which their

relatives might have benefit as a result of a

13

challenge to government worker’s retirement plan,

like the one being challenged here.)

Why don’t the same CJC principles apply in

Washington? 6

Cozza asserts that the judicial officer’s refusal to

consider recusal at all and the Court of Appeals’ bait

and switch tactics, i.e., resolving the issue pursuant

to Washington’s CJC rather than pursuant to the

arguments Cozza asserted, appear to be evidence of

partiality because the role of courts and their judges

is to act as neutral arbiters of those matters the parties present, not to change the arguments so that

they can be decided in ways judicial officers prefer.

See also, infra.

C. Review should be granted because Judicial

Officer Olson failed to act as a neutral adjudicator

when he refused to resolve the judicial

foreclosure claim in equity

Similarly, Judicial Officer Olson also violated

other judicial neutrality principles long applicable to

adjudicators in common law countries when he refused to resolve the judicial foreclosure claim

against Cozza within the superior court’s equity jurisdiction by applying its principles.

Since before the birth of Christ until now there

has been an omnipresent tension, greater or lesser

at various times depending on governmental oppression, between governments’ enforcement of laws and

Arguably the same standards do apply under the plain language of Washington’s Code. See e.g., Washington CJC Rule

2.11, Comments 1, 2, 3, 4, and 5. But see Comment 6.

6

14

governments’ need to provide justice for the people

being governed. See e.g., Howard L. Oleck, Historical

Nature of Equity Jurisprudence, 20 Fordham L. Rev.

23, 25-40 (1951).

By the eleventh century it became apparent in

England that enforcement of law did not always result in justice, particularly in cases where fraud, duress, unconscionable behavior, and inflexible rules

were involved in obtaining equitable remedies. Id.

See also Joseph J. Story LL. D, Commentaries on Equity Jurisprudence as Administered in England and

America, Vol. I (Fourth Edition 1864). Cf. Federal

Judicial Center, Jurisdiction: Equity. 7

Because rigorous application of law in some

cases often resulted in outright injustice, the King of

England (who was obligated by natural law to provide justice for the people) began to do so through

the separate courts of the Chancery. Since that time

equity jurisprudence has been a primary means by

which kings, the English Commonwealth, and later

the republican forms of government in the United

States attempted to provide justice to citizens

against the “rigour, hardness and edge of the law.”

Howard L. Oleck, supra., 20 Fordham L. Rev. at 25–

40.22. See also Hudson, Alastair, Principles of Equity and Trusts, 2nd ed., p. 5 (London: Cavendish

Publishing, 2001).

Although law courts and equity courts merged in

the Nineteenth Century in England, its commonwealth, and most United States courts, including

7 Last accessed on January 2, 2021, at:

https://www.fjc.gov/history/courts/jurisdiction-equity

15

Washington’s courts, see Oleck, supra., 20 Fordham

L. Rev. at 42-3, this did not mean that equity lost its

ability to provide justice in cases like this one, involving fraud and illegality, perpetrated to obtain an

equitable remedy, like foreclosure. See e.g., Cal. Pub.

Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042,

2052, 198 L. Ed. 2d 584, 595 (2017); Columbia Cmty.

Bank v. Newman Park, LLC, 177 Wn.2d 566, 569,

304,P.3d 472, 473 (2013). Cf. Federal Judicial Center, Jurisdiction: Equity, supra.; Hudson, Alastair,

Principles of Equity and Trusts, 2nd ed., supra., p. 5.

The superior court of Washington failed to exercise legitimate judicial power over the judicial foreclosure sought and awarded in this case because its

judicial officer refused to acknowledge that this case

was grounded in the superior court’s equity jurisdiction, notwithstanding that the parties agreed this

was so. Judicial Officer Olson had no authority under these circumstances to grant a summary judgment denying equity jurisdiction because as a

general rule, our system of justice is designed

around the premise that parties represented by competent counsel know what is best for them, and are

responsible for advancing the facts and argument

entitling them to relief. United States v. SinenengSmith, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d 866, 871

(2020). See also Greenlaw v. United States, 554 U.S.

237, 128 S. Ct. 2559, 2564, 171 L. Ed. 2d 399

(2008)(“[W]e rely on the parties to frame the issues

for decision and assign to the courts the role of neutral arbiter of the matters the parties present.” Id.

128 S. Ct. at 2564.)

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Here, the judicial officer’s refusal to let the parties resolve the jurisdictional issue before the court

smacks of bias because after denying Cozza’s summary judgment motion that the case should be resolved in equity, the court granted PNC and “others”

a judgment affording them the equitable relief of

foreclosure. But the judicial official does so at the

same time he claims he does not have to provide any

reasoning supporting the equitable remedy he

grants because he is deciding it as a matter of law

which is reviewable on appeal de novo. But this is not

correct, and the judicial officer should have known

this.

The refusal of Judicial Officer Olson to state his

reasoning for granting equitable relief—and the

Washington Court of Appeals affirmation of that decision by way of the bait and switch analysis previously discussed—is problematic under our system of

adjudication because equity has always required factually intensive analyses to justify those results necessary to secure justice when a legal remedy won’t

do. See e.g., Holland v. Florida, 560 U.S. 631, 64950, 130 S. Ct. 2549, 2563, 177 L. Ed. 2d 130, 146

(2010); Young v. United States, 535 U.S. 43, 49-51,

122 S. Ct. 1036, 1040-41, 152 L. Ed. 2d 79, 86-87

(2002).

Indeed, the Washington Supreme Court made

clear recently (while this case was pending before

the Court of Appeals) that the necessity for intensive

fact-finding regarding the fashioning of equitable

remedies requires appellate courts to apply an abuse

of discretion, rather than de novo, standard of review when granting equitable relief by way of

17

summary judgment. Borton & Sons, Inc. v. Burbank

Props., LLC, 196 Wn.2d 199, 206-07, 471 P.3d 871,

874-75 (2020). Notwithstanding the parties’ agreement this case was within the trial court’s equity jurisdiction and the trial court’s grant of an equitable

remedy, both the Court of Appeals and Washington

Supreme Court refused to apply this abuse of discretion standard of review to the judicial officer’s

fashioning of equitable relief in order to affirm the

judicial officer’s decision.

How could neutral judges fairly applying precedent explained to them have reached such a result?

Mr. Tumey may have wondered the same thing

at the end of the Roaring Twenties when a judicial

officer, who had a pecuniary interest in the outcome

of his case, convicted him of unlawfully possessing

intoxicating liquor. Tumey v. Ohio, 273 U.S. 510, 47 S.

Ct. 437, 71 L. Ed. 749 (1927).

D. Review should be granted because of the importance of judicial neutrality to the People and the

operation of their government

Cozza is aware that she has an uphill battle in

obtaining review from this Court. But certainly, this

Court has the discretion to grant her Petition. See

Supreme Court Rule 10. And it should.

In his 2021 Year-End Report on the Judiciary,

Chief Justice Roberts addresses the growing concerns of the People and other branches of government regarding federal judges’ compliance with

financial disclosure and recusal obligations like the

ones being asserted here. At page 3 of his yearly report, Chief Justice Roberts writes:

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Beginning this past September, the Wall

Street Journal published a series of articles

stating that, between 2010 and 2018, 131

federal judges participated in a total of 685

matters involving companies in which they

or their families owned shares of stock. That

was inconsistent with a federal ethics

statute, 28 U.S.C. § 455, which requires that

a judge recuse in any matter in which the

judge knows of a personal financial interest,

no matter how small. Let me be crystal clear:

the Judiciary takes this matter seriously.

We expect judges to adhere to the highest

standards, and those judges violated an

ethics rule. But I do want to put these lapses

in context.

Year-End Report on the Federal Judiciary, Chief

Justice Roberts (2021)

The Chief Justice then goes on to explain why he

believes this is not a big problem for our country. He

concludes that we can rest assured most federal

judges comply with ethical rules requiring disclosure.

Of course, what we are dealing with in this case

is different. Here, in 2007, Washington judges were

forced out of their own retirement program and system—in which their retirement benefits were guaranteed by the state government—into the same

retirement programs Washington provides for all

state workers. This retirement system is not guaranteed by Washington’s taxpayers but is dependent

upon the investment strategies of the Washington

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State Investment Board, an agency of Washington’s

executive branch of government, and its investment

partners, which include banks and others promoting

and selling mortgage-backed securities. And since

then, the time Washington’s judges were forced

and/or incentivized into these commingled retirement programs the value of their (all government

workers and judges) retirement investments has

been heavily dependent upon the ease with which

mortgages can be foreclosed upon and reduced to a

monetary value.

If state judges can be incentivized by government itself to make judicial decisions which financially benefit all government workers (including

judges) this creates the appearance of a conflict situation for those Washington judges who have been

forced by law to participate in commingled retirement programs, which invest heavily in mortgages

and mortgage-backed securities.

Federal judges do not have a similar conflict

problem because their retirement benefits are

funded by annuities, which are not dependent on investments and therefore pose no similar risks. The

fact the federal government has opted for such a system, which promotes the neutrality and appearance

of neutrality by judges, is not something this Court

should ignore.

Just as was the case in Tumey–and more recently in Cain, supra., and Caliste, supra., the conflicts and appearance of conflicts exist because the

political branches enacted laws, which purposely

created them for the benefit of government workers.

These conflicts do not go away simply because

20

judges, who are wealthier than most, may think billions of dollars in the scheme of retirements is not

significant. We need for judicial officers to show us

why these investments are not impacting their exercise of judicial power.

We were warned about this about this problem.

See Alexander Hamilton, The Federalist No. 78

(1788). And it doesn’t matter whether this Court

characterizes the requirement of neutral judicial decision-making as a necessary component of that justiciability which is necessary for the exercise of

judicial power, or as a part of that Due Process which

was visited upon us by the civilization of our species,

or as a privilege and immunity which existed at the

time of the Constitution’s ratification. Judges must

not be made allies of other government workers and

their wealthy supporters where the result is to suggest that the goal of equal justice for all has been

compromised.

CONCLUSION

Cozza’s Petition for Certiorari should be granted.

DATED this 4th day of January 2022.

Respectfully Submitted,

_________________________________

s/ Scott E. Stafne

SCOTT E. STAFNE, Counsel of Record

STAFNE LAW Advocacy & Consulting

239 North Olympic Avenue

Arlington, WA 98223

360.403.8700

scott@stafnelaw.com