Washington Appellate Judge George Fearing served more than twelve years on the Division III Court of Appeals panel. On May 11, 2023 Judge Fearing wrote a concurring/dissenting opinion in State v Vaile, 26 Wn. App. 2d 1040 (2023), which was an unpublished opinion. Mr. Vaile was charged with two counts of Assault in the Third Degree for his interactions with arresting officers and two counts of Resisting Arrest. The criminal case was hotly contested, and salient facts were highly disputed at trial. Mr. Vaile was found not guilty of the felonies, but found guilty of the resisting charges, which “merged” after trial into a single count.
The alleged victim (‘AV’), who is Caucasian, used her cell phone to record a short video of Mr. Vaile, who is African American, being subdued by the police. He can be heard exclaiming that he was “not doing anything. I’m putting my arm right here.” The Defense argued this statement was admissible as an excited utterance and rebutted any assertion of resisting arrest. The trial court allowed the AV’s video to be played without audio. On appeal, Mr. Vaile claimed the trial court erred by suppressing the audio statements. Mr. Vaile did not raise racial bias as an independent basis for error. Division III held the recording was “compelling” and that its suppression denied Mr.Vaile his constitutional right to a defense. The Division III majority reversed Mr. Vailes’ conviction for resisting arrest and remanded for a new trial.
Judge Fearing concurred in the reversal but dissented as to the remand, citing Washington Supreme Court authority indicating judges can address racial bias sua sponte (‘on his own’). Judge Fearing would have dismissed the case due to institutional bias. The majority discussed Judge Fearing’s opinion and disagreeing with his analysis for two reasons: first, Mr. Vaile did not raise intentional or institutional racial bias on appeal, and secondly, the majority was concerned Judge Fearing’s approach could be perceived as judicial partiality because the case would not have been decided on the basis of facts and arguments addressed by the parties. The majority opinion was 21 pages. Judge Fearing’s lengthy dissent was 37 pages (for an unpublished case!)
On August 2, 2023, the Spokane County Prosecutor’s Office filed a motion requesting Judge Fearing be disqualified from all criminal appeals from Spokane County Superior Court. On September 25, 2023, Judge Fearing issued a 20 page letter in response. Appendices were another ten pages! He indicated he would recuse himself from any case involving a particular Spokane County Sheriff’s Deputy, as well as any appeal where the elected Spokane County Prosecutor and his wife were actual named parties.
According to the Washington State Governor’s Office website, Judge Fearing announced his retirement on July 15, 2025. On November 19, 2025, Governor Ferguson appointed Grant County Superior Court Judge Tyrone Hill to replace Fearing. On January 2, 2026, the day after Judge Fearing’s retirement, Division III filed an “Order Regarding September 25, 2023 Letter Ruling.” This order indicated Judge Fearing’s letter be recorded in official reports in the same manner as an unpublished opinion of the court [https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=399494MAJ].
This writers’ open question to members of the bar: Why did this happen? Some believe it is in tribute to Judge Fearing’s retirement after a long, successful career. Others believe the court hopes Judge Fearing’s analysis will be used in a future case as authority for institutional racial bias. It that were the case, this writer wonders why it would not be published, as lawyers must be wary of utilizing ‘unpublished’ authority. Others believe such an order avoids any optic problem or appearance of impropriety by allowing the public to have knowledge of Judge Fearing’s letter.
Anyone with good theory for giving an appellate judge’s letter (which Division III states is “not authoritative”) the effect of an “unpublished opinion,” please chime in.