BLD18048ADD_COBI - Gerlach 2022 Appeal, Decision and Order on Petition to Disqualify
Decision and Order on Petition to Disqualify
Bainbridge Island Hearing Examiner
Gerlach Administrative Appeal (2022)
No. BLD 18048ADD
Page 1 of 4
BEFORE THE HEARING EXAMINER
FOR THE CITY OF BAINBRIDGE ISLAND
In the Matter of the Appeal of ) No. BLD 18048ADD
)
Marcus Gerlach )
)
) DECISION AND ORDER ON
Of a Building Permit Revision Denial ) PETITION TO DISQUALIFY
TO: Marcus Gerlach, Appellant
Via email to: msg2x4@yahoo.com
Zachary Lell, Attorney for City
Via email to: zlell@omwlaw.com
Maria Dozeman, Administrative Specialist and Clerk to the Hearing Examiner
Via email to: mdozeman@bainbridgewa.gov [For file]
BACKGROUND
Appeal and Petition to Disqualify
Marcus Gerlach (Appellant) filed an appeal, dated April 15, 2022, of a decision of the City of
Bainbridge Island’s (City) Building Official, dated April 4, 2022, denying the Appellant’s
request for a revision or amendment to building permit No. BLD 18048ADD.
On April 18, 2022, the Appellant also filed a petition to disqualify the City’s appointed Hearing
Examiner, Sound Law Center, LLC, (“SLC”), from presiding over this matter for various
reasons. Specifically, the Appellant argues:
• The failure of Hearing Examiner Ted Hunter (of SLC) to disqualify himself from hearing
an appeal of Mr. Gerlach in 2018, because Mr. Hunter had been the subject of
disciplinary action by the Washington State Bar Association (WSBA) in 2004, is
evidence of a conflict of interest that prevents a fair hearing by Mr. Hunter, or anyone
associated with SLC.1
• The fact that SLC Attorneys provided a training session to the City Council and that SLC
has maintained a “letter of appreciation” on the testimonial section of its webpage noting
1 The Appellant did not contend that the disciplinary action related to Mr. Gerlach, his property, any
property or matter related to the City of Bainbridge Island, or Mr. Hunter’s work as a Hearing Examiner in
Bainbridge Island or in any of the several dozen other jurisdictions to which Mr. Hunter provided hearing
services over more than 20 years. Instead, the Appellant contended that Mr. Hunter should be disqualified
from hearing the 2018 appeal, as a matter of course, regardless of the details of the disciplinary action that
was resolved to the satisfaction of the WSBA approximately 15 years ago.
Decision and Order on Petition to Disqualify
Bainbridge Island Hearing Examiner
Gerlach Administrative Appeal (2022)
No. BLD 18048ADD
Page 2 of 4
the City’s appreciation for such training is evidence of SLC’s bias towards favoring the
City in all of the decisions it makes, in violation of the appearance of fairness doctrine.
• Revised Code of Washington (RCW) 4.12.050 provides that parties are entitled to a
change of judge as a matter of right, without the need to show actual prejudice.
Appellant’s Petition to Disqualify, dated April 18, 2022.
On May 6, 2022, Attorney Andrew Reeves—who has served as the City’s primary Hearing
Examiner for over two years—requested a response from the City to the Appellant’s
disqualification motion. On May 13, 2022, Attorney Zachary Lell provided such response,
noting that the Appellant’s allegations, on their face, would not constitute sufficient grounds for
disqualification and, accordingly, the City “does not object to the lawfully appointed Bainbridge
Island Hearing Examiner, Sound Law Center, LLC, from presiding over the [appeal]” and,
further, the City “specifically acknowledges that Attorney Andrew Reeves will serve as the
hearing officer for this proceeding if the Appellant’s Petition is denied.” City’s Response to
Appellant’s Petition to Disqualify, dated May 13, 2022.
The Appellant requested an opportunity to reply to the City’s response, which was granted. On
May 20, 2022, the Appellant submitted such reply, stressing that disqualification is appropriate
“based upon bias, bad faith and prejudice against the Gerlachs” and that “the Gerlachs cannot
and will not obtain a fair, equitable, neutral and unbiased hearing from [SLC], regardless of the
[SLC] agent.” Appellant’s Reply in Support of Petition to Disqualify, dated May 20, 2022.
WSBA Complaint
In addition to filing the present appeal on April 15, 2022, it has come to light that the Appellant
filed a formal grievance against Attorney Ted Hunter on April 13, 2022, related to Mr. Hunter’s
actions in 2018. That grievance reiterates the same arguments and concerns raised in the current
petition to disqualify and seeks to have the WSBA discipline Mr. Hunter for Mr. Hunter’s denial
of the Appellant’s 2018 request to disqualify himself from presiding over the appeal hearing, and
Mr. Hunter’s subsequent dismissal of the Appellant’s 2018 appeal following Mr. Gerlach’s
refusal to participate in and move forward with the appeal hearing. Gerlach WSBA Grievance,
dated April 13, 2022.
DECISION
The Appellant has, essentially, provided three arguments for why the City’s lawfully appointed
Hearing Examiner, Sound Law Center, LLC, should be disqualified from presiding over the
present appeal: (1) because the Appellant has concerns, specifically, with Attorney Ted Hunter
and his ability to provide a fair and unbiased hearing to the Appellant; (2) no attorney affiliated
with SLC could provide a fair and unbiased hearing to the Appellant because SLC provided an
informational training session to the City Council several years ago, as evinced in promotional
materials on SLC’s website; and (3) RCW 4.12.050 requires disqualification when a party has
requested as much.
Decision and Order on Petition to Disqualify
Bainbridge Island Hearing Examiner
Gerlach Administrative Appeal (2022)
No. BLD 18048ADD
Page 3 of 4
None of the grounds cited by the Appellant appear sufficient to warrant disqualification. Of
note:
• RCW 4.12.050(1) explicitly states that any “party to or any attorney appearing in any
action or proceeding in a superior court may disqualify a judge from hearing the matter.”
The present appeal has been filed with the City’s Hearing Examiner – not the superior
court. Accordingly, RCW 4.12.050 is inapplicable.
• Attorney Ted Hunter has not been assigned this appeal because Attorney Andrew Reeves
has served as the City’s primary hearing examiner for the last few years. Accordingly,
any concerns the Appellant has related to Mr. Hunter have no bearing on the matter.
• There is no evidence to support the claim that the City’s Hearing Examiner having
provided an informational training session on legal concepts, such as due process and the
appearance of fairness doctrine, to the elected City Council several years ago was
improper or evinces bias towards upholding the decisions of City employees as educating
the public and serving as a decisionmaker are two independent functions, which are often
engaged in by judges and other hearing officers without bias or conflict
Still, the Hearing Examiner recognizes that Appellant Marcus Gerlach has been admitted to the
WSBA since 2003 (WSBA #33963), is actively licensed to practice law, and has a pending
grievance against Attorney Ted Hunter before the WSBA (as detailed above). As an attorney,
Mr. Gerlach is undoubtedly aware of how serious the bar takes such allegations. Disqualification
of SLC in the present matter on the grounds that Mr. Hunter somehow acted inappropriately back
in 2018, as Mr. Gerlach requests, would be warranted only if the WSBA sustains Mr. Gerlach’s
grievance. Otherwise, requesting disqualification on such grounds would appear to be the kind
of conduct designed to disrupt the normal proceedings of the City’s Hearing Examiner. See
Section 3.1 (Meritorious Claims and Contentions) of the Rules of Professional Conduct (RPC);
RPC 3.5 (Impartiality and Decorum of the Tribunal).
In addition, RPC 3.3 (Candor Toward the Tribunal) requires that a lawyer not knowingly make
false statements of fact or law to a tribunal such as repeatedly misstating the applicability of
RCW 4.12.050 to matters outside the purview and jurisdiction of the superior court. It is
presumed Mr. Gerlach will clarify his legal opinions in the WSBA proceedings.
Ultimately, the Hearing Examiner believes it is appropriate to stay this matter pending the
WSBA’s determination as to whether SLC (and, specifically, Ted Hunter) erred in presiding over
Mr. Gerlach’s 2018 appeal. Should the WSBA dismiss Mr. Gerlach’s grievance, this would
presumably “cure” any outstanding concerns/issues Mr. Gerlach has about SLC (and,
specifically, Attorney Andrew Reeves) and its ability to serve as an unbiased decisionmaker in
the present case.
That said, any guidance or advice the WSBA wishes to provide as to this issue is welcome.
Decision and Order on Petition to Disqualify
Bainbridge Island Hearing Examiner
Gerlach Administrative Appeal (2022)
No. BLD 18048ADD
Page 4 of 4
ORDER
Based on the reasoning contained herein, the present matter shall be STAYED pending
resolution of the current grievance Attorney Marcus Gerlach has filed against Attorney Ted
Hunter with the WSBA. The petition to disqualify will be revisited following conclusion of that
matter and the receipt of any decision and relevant guidance or direction provided by the WSBA
as to SLC’s ability to fairly serve as the City’s Hearing Examiner on this (or any other) matters.
SO DECIDED AND ORDERED this 2nd day of June 2022.
ANDREW M. REEVES
Hearing Examiner
Sound Law Center