Washington Courts

Plaintiff has filed his opening brief in Eugster v. Washington and the Washington Court of Appeals.  Find it here  — Opening Brief of Appellant.

What might happen as a result of the case is this:  The legislature, which has the power under the constitution to provide for the “manner of election” of the judges to the Washington Court of Appeals, will devise a plan whereby a commission will be established to select qualified lawyers who wish to become judges.  The commission would then provide a list of nominees for a position on the court. The governor would then appoint from such list of qualified nominees.  She or he would not be allowed to go outside of the list.  Then, at the next election, the judge would stand for retention.  This is the something like the Missouri Plan.

It would be highly doubtful if the legislature would try to amend the constitution to provide for the strict appointment of judges in the case of the Court of Appeals and the other courts – Superior Courts (trial courts) and State Supreme Court.  

See my article  at this link.  See also The Walsh Commission Report.

The case claiming that the Washington Court of Appeals judicial elections are subject to the one person one vote principles of the Washington State Constitution Art. I, Section 19 is on its way to the Washington Supreme Court. 

The Statement of Grounds for Direct Review and the Answer to the Statement of Grounds for Direct Review have now been filed with the Supreme Court.

Appellant’s Brief will be filed by the end of April, or thereabouts.

The court will consider a simple motion for partial summary judgkment on Friday in the Thurston County Superior Court in Olympia.  Judge Richard D. Hicks will hear the motion.

The motion?  Simply whether the one person one vote applies to the election of judges to the Washington Court of Appeals.  If it does, how we elect judges to the Court of Appeals will dramatically change.  Here is the Reply Brief of the Plaintiff — there are usually three briefs on such summary judgment motions — opening brief, response brief and reply brief.  That’s it.

Friday should be an interesting day, one way or the other.  One of the reasons why the case has interest is that it is a case of “first impression.”  This means that no court in the State of Washington, or anywhere for that matter, has considered the issue.  The judge’s decision will be the first time the “mind of man, has been applied to the issue.”  My words.

The defendants, the state of Washington and the judges of the Court of Appeals, have filed their response to the plaintiff’s motion for partial summary judgment.  They have asked for summary judgment too, and dismissal of the complaint.  Here is the response — Defendant’s Motion to Dismiss, etc.

The motions will be heard this Friday at 9:00 am, February 5, 2010 in the courtroom of Judge Richard D. Hicks, Thurston County Superior Court, Olympia, WA.

Former Supreme Court Justice Sandra Day O’Connor has long held that judges should be appointed not elected.  She was in Seattle the other day to pursue her goals in that regard.  Seattle Times.

In Washington we have the notion that we elect judges. We do, and yet we do not. Most judicial positions are filled by gubernatorial appointment to vacate judicial positions. Rarely does a judge at any level serve out his or her full term. Usually, a retiring judge retires before his or her term is up and the governor appoints someone to fill the position. The judge then runs for election as an incumbent.

Also, we think we elect the judges who act as judges of the three judge panels by which the Court of Appeals does its work. We do not. We elect judges to the divisions of the Court[s] but the judges who decide the cases are not elected, they are appointed. And, the panels are not apportioned as to the judges appointed and the electorate of the Division. See my article and attachments and my other efforts with regard to the Washington Court of Appeals. 

So much for the election of judges to the “real supreme court of the State of Washington” for most cases — the Washington Court[s] of Appeal. For the most part the only cases which get to the Supreme Court are those which the Supreme Court has decided to review - about 1 out of 10 cases.

One looks for understanding of a court, let us say, the Washington Supreme Court or the divisions (really separate courts) of the Washington Court of Appeals by looking at the decisions, the written evidence of dicisions, opinions.  The law requires them to be in writing (except for three judge panel decisions not to publish at the “courts” of appeal level.

The opinions tell us of the “thinking” of the judges.  The thinking is a conscious expression of what went on.  But, one must wonder, is there an unscious aspect of what went on in the making of the decision?  It seems obvious that there must be.  Everyone understands the written opinion is a rationalization of and for a decision. 

I suspect the real work of the court takes place at the unconscious level.  I also surmise that in the selection of judges or the understanding of the character of the judges who hold places on the benches of the courts today it may be necessary for us to know a bit about the unconscious character of the judges.  But, how does one get there?  Who would know.

Suffice it to say there courts are conscious processes but I sense the courts are also unconscious processes — the unconscious processes are probably far more interesting, and important to us.

On June 1, 2009 in the United States District Court for Eastern District of Washington a case was filed challanging the apportionment and election of judges to the Washington Court of Appeals.  See the Complaint.

In this “published” opinion (Morris v. Palouse River and Coulee City Railroad, Inc.)Division III says that Washington out of state service of process statute, RCW 4.28.080(4) (and RCW 4.28.185(4)) only confers jurisdiction if the affidavit of service says the person served cannot be found in the state.

One sometimes has the notion that the court publishes easy cases and does not publish difficult cases. More on this point at another time.

Another point:  If the court “went to the trouble” to cause this opinion to be published, one would have thought it would be more careful in what it said:

Because the process server served Mr. Morris’ summons and complaint on an individual at PCC’s Idaho office without explanation why service could not be made in Washington as required under RCW 4.28.080(4), service was invalid.

The reference to RCW 4.28.080(4) is wrong, it should have been to RCW 4.28.185(4).  Alas, maybe the court is overworked.  Or, maybe it is trying to rewrite the meaning of RCW 4.28.080(4).

Justice Richard B. Sanders (a friend for whom I have great respect) has made a mistake.  The mistake should be corrected.  Justice Sanders wrote the lead opinion in a public records case, Yousoufian v.  Sims (January 15, 2009).  In Yousoufian rules were established for the way in which the Washington courts are to determine penalties for governmental failure to provide public records and in a timely manner.  At the same time Justice Sanders had a case before the Washington Court of Appeals, Division II, dealing with similar issues. 

The Court of Appeals Division II has refused to hear Justice Sanders case, his appeal from a decision of the Thurston County Superior Court seeking higher penalty amounts for the failure of timely delivery of public records to him.  The court said it could not hear the case because Yousoufian applied and Justice Sanders had written the lead opinion in Yousoufian.

Justice Sanders says he was advised by Nan Sullins, a staff attorney with the Office of the Court who deals with such ethical questions, that it was all right for him to be involved in Yousoufian.  (Mrs. Sullins is not an inexperienced lawyer.  She was admitted to the bar in 1982.)  Any such response was in error.  The United States Supreme Court has dealt with this issue. 

In AETNA LIFE INS. CO. V. LAVOIE, 475 U. S. 813 (1986), an appellate judge was personally involved with an insurance company concerning certain claims.  The case before the appellate court the judge was a part of dealt with similar issues.  The United States Supreme Court held in part that the because of justice’s leading role in the decision under review, the “appearance of justice” will best be served by vacating the decision and remanding for further proceedings. Pp. 475 U. S. 827-828.

Under the circumstances, I think the proper thing to do would be for the Washington State Supreme Court to act on its own to correct the situation.  It should vacate the Yousoufian decision and proceed with it again without any involvement by Justice Sanders.

The legislature has told the Washington Court of Appeals that it does not have to publish all of its decisions.  The court is given the authority to decide whether a decision has “sufficient” precedential value.  If not, the court can refuse to publish.  RCW 2.06.040.  If an opinion is not published, it cannot be cited in matters before the courts of the state of Washington.  GR 14.1(a).

During the period of February 24, 2009 through March 10. 2009 about 19 Court of Appeals decisions were published.  Over 60 were not.

One must wonder whether all these 60 or so decisions were so lacking in sufficient precedential value so as to not make it into the process of the evolution of our law.  Could it be the court(s) (there are three devisions of the court and judges are elected to divisions — the work of the court is done by panels of three judges for each division) of the Court of Appeals do not want certain decisions to be regarded as having precedential value.  That is, that certain decisions should not make law, should not make contribution to the changing and evolving law of the state?

One should not be to optimistic about the real intent of the Court(s) of Appeal.