Linda Jacke, Bellevue District Court

Judge Jacke's handling of the anti-spam cases I filed is an example of how an honest disagreement between judges on how to interpret the law, can turn into something that reflects considerably worse on how the courts work.

Judge Jacke originally dismissed four of my spam cases saying that you cannot sue in Small Claims court unless you've actually lost money. I knew that most other judges thought that was wrong, since they had all allowed me to bring spam cases in Small Claims court, but I couldn't appeal the decision because the amount I sued for was too low (only $1,000). Then I discovered that the law actually allowed me to sue spammers for $1,500 apiece instead of $1,000, so the next time I sued and a different judge ruled that I couldn't sue in Small Claims because I hadn't lost money, I appealed the ruling to the Superior Court and got it overturned. After that, Judge Jacke communicated to her clerk at Bellevue District Court that she was withdrawing herself from any future spam cases that I had brought (so I would still be able to bring the cases, but they would be heard by other judges).

But, why would a judge withdraw herself from a case if she thought I was bringing a case that was not legally valid? If she thinks I'm bringing a case that has no merit, obviously she should take the case and rule against me -- otherwise, by getting the case heard by a different judge, I might win a judgment that she presumably believes I am not entitled to. The Code of Judicial Conduct gives a list of reasons in section 3(D) for judges to withdraw themselves from a case (e.g. if they're related to one of the parties), but none of them applied in this situation -- and for a judge to withdraw themselves from a case is not something that is done casually, since it causes some inconvenience to the parties who then have to schedule the case around the days when the judge is not in court, etc. The only apparent reason for Judge Jacke to recuse herself from the case would be that she would have to either (a) change her earlier position, or (b) stick to the same position and face almost certainly being overturned on appeal. I sent Judge Jacke a (rather self-righteous) letter asking if she would give any other reason for withdrawing herself from the case, but never received a response.


Judge Jacke heard four of my anti-spam cases on October 1, 2001, and dismissed all of them saying that you cannot sue in Small Claims court. She said this was because the Small Claims statute reads:

The small claims department shall have jurisdiction, but not exclusive, in cases for the recovery of money only if the amount claimed does not exceed four thousand dollars.
and she said that the phrase "recovery of money" meant that you can only sue for money that you've actually lost.

However (this is the "honest disagreement" part), while in normal English usage the word "recovery" means getting back something that you used to have, in legal terminology "recover" is often used to mean to simply take something from somebody as part of a court judgment. In my appeal of a different case that I filed later, I cited three U.S. Supreme Court decisions that talked about plaintiffs "recovering" statutory or punitive damages (i.e. "recovering" money that they had not actually lost):

"There is no statutory right to a jury trial when a copyright owner elects to recover statutory damages."
- Feltner v. Columbia Pictures Television, Inc.

"[T]he showing of actual malice needed to recover punitive damages under either New York Times or Gertz was unnecessary."
- Philadelphia Newspapers, Inc. v. Hepps

"But plaintiffs may not recover punitive damages against a municipality."
- Jefferson v. City of Tarrant

And anyway, by the time Judge Jacke made this ruling, I had already won a telemarketing case before Judge Garrow, which was another case where I hadn't actually lost any money. (This was the first time I saw two judges clearly contradicting each other -- at the time, I thought this was a huge deal, which seems pretty funny to me looking back on it now.)

Unfortunately the cases that Judge Jacke heard had been filed for only $1,000 each (because under the anti-spam law, Bennett Haselton as an individual would only be entitled to $500 but Peacefire as a company would be entitled to $1,000), and you can't appeal a judge's decision unless you sue for more than $1,000. For my next lawsuits, I realized I could sue as both Bennett Haselton and Peacefire, and add together the $1,000 and $500 and sue for $1,500, which also meant I could appeal if a judge dismissed the case.

So, on November 26, 2001, I had some cases heard by Judge Pro Tem (i.e. temporarly filling in for one day) Elizabeth Stephenson, and she ruled that I could not sue in Small Claims unless I'd lost money. (Of all the judges I have appeared before so far, Judge Stephenson and Judge Jacke were the only ones who have made this ruling.) I appealed this ruling to Superior court (case 02-2-03179-0SEA), filed a written brief arguing why it should be reversed, and mentioning the Supreme Court cases listed above. Judge Mary I. Yu issued a written decision reversing Judge Stephenson's ruling, finding that Small Claims was the proper court to sue spammers even when no money had been lost.

Then on April 1, 2002 I was back in court before Judge Jacke with three other spam cases. This time Judge Jacke brought up a new objection, saying that I could not sue spammers that were located out of state, but she refused to comment on whether or not she had changed her position on suing spammers when I hadn't actually lost money. I ordered a recording of that day and never received it, and by now enough time has passed that the recording has probably been thrown out, but my recollection of the conversation was roughly:

Judge Jacke:So, this case is dismissed as this court has no jurisdiction over out-of-state defendants.
Bennett Haselton: But is it also still your position that you cannot sue in Small Claims unless you've actually lost money?
Judge Jacke: I can't comment on that. As of right now I have no case before me.

Of course, this makes no sense -- if a judge has two possible reasons for dismissing a case, they can list both reasons instead of giving just one. This was my first indication that Judge Jacke had not simply made an error but was actually trying to duck the question of whether she still stood by her earlier ruling.

Any of my remaining doubts were removed a few weeks later, when a clerk at Bellevue District Court told me that Judge Jacke would no longer hear any of my spam cases (or any cases where I had not actually lost money). Since this seemed to make no sense -- if she thought I was wrong, why wouldn't she take my cases so she could rule against me? -- I figured that she was just trying to avoid taking a case where I would probably get her ruling overturned as well.

The Code of Judicial Conduct does not list this as a valid reason for withdrawing from a case. What it does say, in very general terms, is that judges should "avoid the appearance of impropriety" in their conduct, and I would say if a judge withdraws herself from a case without giving an official reason -- especially when the circumstances of the case create the strong appearance that the judge is withdrawing just to avoid admitting an earlier mistake -- then that does in fact look bad.

Bennett Haselton