Spokane County said that CherryAnn Coballes’s dog Gunnar was a “dangerous dog.” She’s tried to appeal that decision in various ways, but in Coballes v. Spokane County (Division 3, April 26, 2012), the Court of Appeals told Coballes that she’s been using the wrong kinds of appeals. Regardless, the Court seems sympathetic to Coballes’s plight. It went out of its way to point out that this whole problem started because a three-year-old girl went into a closed bedroom, which she had been told not to do, and was therefore bitten by a dog that the Coballes family locked in the bedroom specifically for safety purposes while the child was visiting.
So what’s the point of this case? Well, it’s all about procedural punctilio. The Board of County Commissioners found that Gunnar was a dangerous dog; Coballes tried to appeal that decision to the Superior Court. The Court of Appeals explained that there were three possible routes for that appeal. Coballes sort of tried all three.
First, there is the possibility of a statutory right of appeal. That’s the regular old right of appeal from administrative action that we’re used to: review for errors of law, facts reviewed under substantial evidence, &c. There is also the statutory writ of certiorari. That is a statutory grant of certiorari review, which generally allows a Superior Court to review board action that (a) is somehow ultra vires, and (b) is not subject to statutory appeal or other adequate remedy at law. And then finally there is the constitutional grant of certiorari review, which applies only if both direct appeal and statutory certiorari are unavailable. Under constitutional certiorari review, the Superior Court reviews only whether jurisdiction existed or if the board’s actions were so arbitrary and capricious that they violated the petitioner’s fundamental right to be free from such actions.
Each type of review is available only if the previous types are unavailable, and each successive level has a narrower scope of review. So these things do matter. Here, the Court of Appeals held that Coballes did have a right of direct appeal to the Superior Court, so there was no need for the exotic writs of certiorari. Indeed, those writs were not available. In any event, the Superior Court denied Coballes’s petition for review, which was a sort of amalgam of the various types of review discussed above.
But all that is prologue to the real issue: Whether Coballes had the ability to seek review as of right in the Court of Appeals or whether she had to petition for discretionary review. Having already determined that Coballes had the right to an appeal in the Superior Court (not certiorari), the Rules for Appeal of Decisions of Courts of Limited Jurisdiction state that when the petitioner has a right to appeal in the Superior Court, review in the Court of Appeals is discretionary, not of right. Accordingly, Coballes should have petitioned for discretionary review in the Court of Appeals, not filed for review as of right.
The Court of Appeals was forgiving of Coballes’s error, however. It permitted her to petition for discretionary review which, if granted, would allow her to obtain appellate review of the Supreme Court’s decision to uphold the Board’s decision. And then finally maybe we’ll get an answer to whether Gunnar really is a dangerous dog.