After the stalling of Judge Charnelle Bjelkengren’s nomination to replace Judge Salvador Mendoza, Washington Court of Appeals Judge Rebecca Pennell has been put forward as an alternative.
Background
Pennell received her B.A. from the University of Washington in 1993 and a J.D. from Stanford Law School in 1996. Pennell subsequently clerked for Judge Robert Whaley on the U.S. District Court for the Eastern District of Washington before joining TeamChild as a Skadden Fellow, working on juvenile legal services in Yakima, Washington.
In 2000, Pennell became a public defender with the Federal Defenders of Eastern Washington and Idaho. Pennell stayed with the office until she was appointed to the Washington Court of Appeals in 2016. Pennell currently serves as a judge on that court.
History of the Seat
Pennell has been nominated for the U.S. District Court for the Eastern District of Washington. This seat opened on September 16, 2022, when Judge Salvador Mendoza was elevated to the U.S. Court of Appeals for the Ninth Circuit. President Biden previously nominated Charnelle Bjelkengren, a state court judge based in Spokane, to fill the vacancy. However, after a poor performance at her confirmation hearing, Bjelkengren’s nomination stalled and was ultimately not resubmitted by the Administration.
Legal Experience
Between 2000 and 2016, Pennell served as a federal public defender for Eastern Washington and Idaho, representing indigent defendants in federal criminal cases. Among her notable cases, Pennell represented Devonn Deshea Kinsey, arguing that police officers erred in patting down Kinsey and uncovering a pistol magazine. See United States v. Kinsey, 952 F. Supp. 2d 970 (E.D. Wash. 2013). Judge Edward Shea disagreed, denying the motion to suppress. See id.
Pennell’s duties included arguing a number of appeals before the U.S. Court of Appeals for the Ninth Circuit. See, e.g., United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. 2004). In one notable case, Pennell successfully argued that the government had erred in seeking to admit evidence after the defendant opened the door to officers who then entered his trailer without a warrant. See United States v. Quaempts, 411 F.3d 1046 (9th Cir. 2005). In another notable case that Pennell handled, the Ninth Circuit reversed Judge Fred Van Sickle’s decision to overturn a jury conviction for possessing a firearm while under a domestic violence restraining order. See United States v. Young, 458 F.3d 998 (9th Cir. 2006).
Jurisprudence
Since 2016, Pennell has served as a judge on the Washington Court of Appeals. Among her notable decisions on this court, Pennell joined a ruling holding that Washington’s Dealing in Depictions of a Minor Engaged in Sexually Explicit Activity prohibited a juvenile male’s texting of a picture of his genitalia to an adult female. See State v. E.G., 377 P.3d 272 (Wash. App. 3d Div. 2016). In doing so, the court rejected arguments that the statute couldn’t be applied against the “victim” of the conduct and that the statute violates the First Amendment. See id.
In other notable opinions, Pennell dissented from a Court of Appeals decision affirming an assault conviction, finding that the state’s evidence failed to show more than that the defendant “had been present at the scene of a crime.” See State v. Fleming, No. 33644-1-Ill. (Wash. App. 3d Div. Apr. 18, 2017) (Pennell, J., dissenting). In another case, Pennell overturned a trial court decision barring the defendant from contact with his son for five years, finding that the ruling failed to adequately consider the defendant’s fundamental right to parent his son. See State v. Torres, No. 33648-4-Ill. (Wash. App. 3d Div. Apr. 13, 2017). In yet another opinion, Pennell dissented from a decision affirming convictions for a defendant charged with assaulting a police officer, finding that the trial court should have rejected the defendant’s request to represent himself, given his severe mental illness. See State v. Evatt, No. 34963-2-Ill. (Wash. App. 3d Div. June 6, 2017).
Additionally, Pennell has also served as Justice Pro Tempore with the Washington Supreme Court, where she reversed convictions for felony murder, finding that the record did not support a finding that the defendant had robbed a safe as a predicate condition for the felony murder. See Matter of Knight, 538 P.3d 263 (Wash. 2023). Justice Virginia Madsen dissented from Pennell’s opinion. See id. (Madsen, J., dissenting).
Political Activity
Pennell has frequently donated to political candidates during her time as an attorney, including to many Washington Democrats including former Governor Christine Gregoire. Her sole donation after joining the bench has been to fellow Court of Appeals Judge Tracy Staab, when she was a candidate in 2020.
Overall Assessment
Over the last three decades, Pennell has gathered a significant degree of experience with both civil and criminal law. If confirmed, Pennell is likely to add a left-leaning presence to the Eastern District of Washington.