Judge rejects call to step down from Arlene's Flowers case

Tri-City HeraldJune 28, 2013 

A Benton County Superior Court judge will not recuse himself from hearing lawsuits filed against a Richland florist who refused to provide flowers for the wedding of a gay couple.

Judge Salvador Mendoza rejected the recusal request from attorneys representing Barronelle Stutzman, owner of Arlene's Flowers, during a pretrial hearing Friday afternoon.

Two other judges have recused themselves from the cases in the past week.

The request stemmed from Mendoza's recent service as a board member for Columbia Basin College, where Curt Freed, one of the plaintiffs, works. Mendoza said he interacted with Freed during board meetings but does not know him socially and sees no reason to remove himself from the case.

“Believe me, ladies and gentleman, if there was a way ethically that I could not hear this case, I wouldn’t,” said Mendoza, who recently joined the bench.

Mendoza did combine the two lawsuits — one a private lawsuit by Freed and Robert Ingersoll, the other by the Washington Attorney General — into a single case.

He told attorneys representing all sides that he needs time to consider two other requests — whether the attorney general has jurisdiction in the case and whether to bring the attorney general in as a defendant himself.

Stutzman refused to serve Ingersoll, a customer of nine years, in early March when he came in to order flowers for his wedding. She told him she couldn’t provide the flowers because of her religious beliefs.

The incident led Ingersoll and Freed to write Facebook posts about it. That gained the attention of the attorney general’s office, as sexual discrimination falls under the state’s consumer protection and anti-discrimination laws.

State justice officials filed their lawsuit in April. Freed and Ingersoll followed with their own lawsuit a few weeks later. Stutzman filed a countersuit against the state, arguing it was trying to force her to act contrary to her religious convictions, a violation of her constitutional freedoms.

Mendoza declared his connection to Freed to court administrators after reviewing court rules and regulations. He also disclosed it in court Friday at the request of Assistant Attorney General Todd Bowers.

Stutzman’s attorneys, Kennewick-based Alicia Berry and Everett-based J.D. Bristol, previously filed claims of prejudice against judges Carrie Runge and Cameron Mitchell, leading to their recusals.

Berry argued that Mendoza also should step aside, citing the judge’s disclosure of his connection to Freed, the high-profile nature of the cases and the availability of another judge.

“Do you want any question in anyone’s mind if there was impartiality or bias on your part?” Berry asked.

But Mendoza rejected those arguments.

“My wife has bought flowers from Arlene's Flowers on several occasions,” Mendoza said, adding that also wasn't a reason to recuse himself. “That's what happens in small communities.”

Berry and Bristol also argued that the attorney general doesn’t have the ability to prosecute Stutzman. It’s up to the Washington Human Rights Commission to determine whether Stutzman’s refusal to serve Ingersoll and Freed was an unfair practice under the state’s anti-discrimination law, Bristol said.

“There’s no precedent, absolutely no precedent, for the attorney general to be doing this,” Bristol told the Herald. Bowers asked Mendoza to block Berry and Bristol from making those arguments, saying the state is prosecuting Stutzman under consumer protection laws. While that may be connected to unfair practice as described in the anti-discrimination law, such multiple enforcement is common and allowed, he said.

Bristol also wants to bring the attorney general in as a defendant, as it could provide his client attorney costs if she is victorious.

Bowers said Stutzman and her attorneys are free to bring an independent claim against the attorney general but are misusing state law to entangle the state’s top prosecutor in this case.

“You can’t use this to bring in other defendants,” Bowers said.

Mendoza said he would review the briefs filed on both issues and give his decision in a few weeks.

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