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On January 2, 2026, the Court of Appeals Division III took the intriguing step of elevating a letter ruling, on which parties outside that litigation generally cannot rely, to the status of an unpublished opinion. An unpublished opinion, while not binding on any court, can be cited by anyone for persuasive authority by others under GR 14.1(a). Interestingly, the court did this with a letter ruling issued by Judge George Fearing from September 25, 2023—almost two and a half years ago.
The court’s January 2, 2026 order allows us to revisit and celebrate Judge Fearing’s important ruling.
Judge Fearing has strongly criticized racial bias in our criminal justice system. Some law enforcement and prosecutors disliked his candor. In 2023, after Judge Fearing had written a pointed dissent calling out racism in the arrest and criminal prosecution of defendant Darnai Vaile by Spokane County, the Spokane County Prosecutor’s office filed a motion to disqualify Judge Fearing from all criminal cases from Spokane County Superior Court. The Prosecutor’s Office argued he exhibited bias against law enforcement and prosecutors in Spokane County. Judge Fearing’s letter ruling addresses—and thoroughly disposes of—that argument.
The Legal Framework: It’s About Impartiality Towards Parties—Not Discomfort with a Judge’s Views
Judge Fearing’s letter ruling denying in part the motion makes clear that a judge’s willingness to identify racial bias in the legal system is not, on its own, “bias” requiring recusal under the Code of Judicial Conduct (CJC). In his view, a judge’s anti-racist attitude is necessary and not disqualifying.
Judge Fearing roots his analysis in the text and structure of CJC 2.11, which requires a judge to disqualify where “impartiality might reasonably be questioned,” including where the judge has “personal bias or prejudice concerning a party or a party’s lawyer.” This is an objective test meaning he must recuse himself if a reasonable person who knows and understands all the relevant facts would question his impartiality. Just because someone dislikes the judge’s language or views doesn’t mean that a judge can’t fairly decide a case.
The Difference Between Institutional Racism vs. Calling People Racists
Judge Fearing notes that prosecutors and law enforcement “take offense” at his writing that they “participated in racism” and “imply that I outright called them racists.” His answer is blunt: he did not call them racists and argues their objection misunderstands “the nature of institutional racism.”
That distinction runs throughout his recusal analysis. If the claim is “the judge is biased because he accused us personally of moral failing,” that sounds like personal animus. If the claim is “the judge identified structural bias and criticized conduct through that lens,” that is more typical judicial work—especially in an era when courts are increasingly aware of systemic inequities.
Being “Partial” to Racial Equity is Part of his Judicial Duty
The most revealing line is also the most interesting: Judge Fearing responds to the of bias against the State and prosecutors by saying he is “partial against racial prejudice and institutional racism” and that “CJC Rule 2.3 compels me to prefer racial equity over racial bias.”
Judge Fearing makes the point that judges must think this way. “Bias” in the disqualification sense is a personal prejudice that undermines neutrality toward a party or counsel under CJC 2.11. But a judge also has an obligation to avoid and address racism and bias (and to promote fairness and equal treatment) which is baked into his affirmative duties in CJC 2.3.
So Judge Fearing effectively argues that a party cannot convert a judge’s stated commitment to racial equity into a per se basis for disqualification without turning the Code against itself.
The Washington Supreme Court Backdrop: Impact-Focused Analysis Doesn’t Equal Judicial Prejudice
Judge Fearing reinforces the point by focusing on Washington Supreme Court authority that in evaluating fairness, courts should not fixate on whether government actors intended racism; instead, courts consider how an objective observer—one who understands “the history of persistent racism in America”—would perceive the conduct and its effects. He argues that the focus should always be on the rhetoric and language used, not whether a specific person was racist or has “moral culpability.”
In other words, a judge can apply an anti-racism framework required by precedent—and even be sharply critical of institutional racism—without that framework becoming proof the judge is personally prejudiced. The ruling treats that work as compatible with, and compelled by, the judge’s ethical obligations to fairness and equality.
Takeaways
So why did the Court of Appeals take two and a half years to elevate the ruling to the status of an unpublished opinion? That is a good question. I don’t know the answer for sure. I suspect it has something to do with what the Court of Appeals said in its January 2, 2026 order: that it “contains analysis that will be helpful if a similar motion is filed in the future.” These types of motions to disqualify judges are likely to recur, and it will be helpful for judges and practitioners to have this ruling out there as something judges and parties can rely on.
The other interesting note about the timing of the order is that it occurred the day after Judge Fearing’s retirement. Was that a coincidence? Again, I don’t know. But the timing is indeed curious. If nothing else, however, the court has given us another opportunity to discuss the highly important issues in Judge Fearing’s ruling, and that itself is worthy of celebration.