Washington Courts

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.

http://www.wasupremecourtblog.com/ – But, let us be honest.  The real supreme court of the state of Washington is (are?)  the three Washington Courts of Appeal.  The real focus of this site should be on the Court(s) of Appeal. 

The way things work in Washington — the Washington Supreme Court is a “vanity court of appeals” (like that of the United States Supreme Court).  The only decisions the court likes to make are where five of the justices choose to make — the choices are (let us be honest) political.

Gasp!  Did I just say that?  Did I just say the decisions these courts of appeal decide, in thier immenences desire to decide, are decisions the justices find they want to make pronouncements about.   (Who is in charge of this government?)

Judges want us to have “faith” in them.

The foregoing is all the more reason why we have to think of the Washington Court(s) of Appeal as the “real” supreme court of the state of Washington.

An appellate judge cacusts a deciding vote in a case overturning a $50 million jury verdict against a coal company.  While getting elected to the bench of the court, the CEO of the coal company spends over $3 million getting the judge elected.  The question:  Whether the judge should have recused himself?  By the way, the judge was aware of the efforts of the CEO.

The USSC has the issue in the case — Caperton v. A.T. Massey Coal Co.  Just when should a judge recuse himself.  Certainly it is in this case.  We are not talking about a small amount of money.  The Supreme Court accepted cert. meaning it wants to decide the issue.  Is the recusal a due process issue?  Maybe not.  But, i sure would seem to be a violation of judicial ethics issue.  How can a judge say he is upholding the character and integrity of the court when any thoughtful person would conclude there is at least the appearence of unfairness at work.

Justice Scalia probably would disagree.  He thinks judges walk on water and certainly would not be affected by a multi-million dollar bit of support.  Not only does Justice Scalia lack humility and understanding of human frailty, he lacks good sense.

The many briefs in Caperton v. A.T. Massey Coal Co. can be found here and the transcript of the oral argument can be found here.

Neilson ex rel. Crump v. Blanchette, Docket Number: 27066-1, File Date: 02/26/2009
Appeal from Spokane Superior Court, Judge N. Rielly
Opinion J. Brown, joined by J. Sweeny and J. Korsmo

A strange little case. Lots of words for a simple and obvious answer to the question posed. Can the court issue a domestic violence protection order under chapter 26.50 RCW to protect a 14 year-old at the request of her mother against an18 year-old former boyfriend? The statute applies only to family members. RCW 26.50.010(2) limits the definition of “family or household members” found in RCW 26.50.010(1) to “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.” The trial court issued a domestic violence protection order to protect the 14-year old. Reversed. That is all that had to be said. Yet the court went on for 8 pages to explain its decision.

In the end, somewhat out of the blue, Judge S. Brown for the court said “[i]n light of our holding, Ms. Neilson has not prevailed. Thus, we deny her requests for attorney fees.” This statement is somewhat odd in that one is given the impression that in Washington a prevailing party is entitled to attorney’s fees. Of course this is not so — without such fees being allowed by statute or contract. The decision is sloppy.

It also of interest that the court caused the opinion to be published. Despite the fact all decisions should be treated as published in this day and age, it is hard to believe this case has any precedential value. The statute is the law and the law clearly applied to the obvious facts of the case. One might wonder what has really been gained by this published decision.

Welcome to Washington Courts.  At this site I hope to bring some news and thoughts about the appellate decisions of the appellate courts of the State of Washington.  This is not a “professional” site.  It’s author is a lawyer who has practiced law in the state of Washington since 1970.  I hope I will bring to this site some ideas and views about the appellate judicial system in Washington and some ideas about law and the judiciary.  Other thoughts of a general nature about law and related areas of concern may be found at another website www.northernreview.org.