The Washington Court of Appeals and the Case of the Missing Findings of Fact

In State v. Yallup, Division 3 of the Court of Appeals provides some advice to parties on what to do if the trial court does not timely enter findings of fact. I was not aware of this being a big problem, but apparently it is—especially when the trial judge retires to “spend much of [his] time at sea” before the findings can be entered. Here’s the Court of Appeals’ full discussion of the issue in Yallup along with recommendations to counsel faced with this problem in future cases:

Late Findings

Mr. Yallup next challenges the trial court’s entry of late findings, arguing that they were tailored to answer his appellate challenges. We are unhappy with both the late findings—a problem that seems to be increasing of late[n5]—and the way they were addressed to this court. Ultimately, we conclude that Mr. Yallup has not established that the findings were tailored to prejudice his appeal.

Court rules and statutes mandate that trial courts enter written findings in several different circumstances, including bench trials in civil and criminal cases . . . . Although the obligation is placed on the trial judge to enter the findings, we recognize the near universal practice of delegating the drafting of findings to the prevailing party.

Here, Judge Altman’s pending retirement (and desire to spend much of that time at sea) was well known, even to the bench of this court. Trial was held more than two months before his departure from the bench. In an ideal world, the findings necessitated by CrR 6.1(d) would have been entered at the time of sentencing when Judge Altman would be sitting in Goldendale and the parties would be present. When that did not occur, the prosecutor should have proceeded to bring the matter to the judge’s attention before his retirement and departure.

Some time prior to the filing of appellant’s brief, counsel for the appellant discovered that the findings mandated by CrR 6.1(d) were not present. Our record does not reflect what efforts, if any, the parties made to resolve that situation.[n6] This court’s records carry no indication that either party brought it to the attention to our clerk of court or our commissioner’s office. Instead, appellant filed a brief and attempted to use the absence of findings for his own benefit. Respondent made efforts to get the findings entered and delayed its own briefing to accomplish that fact. Appellant filed a reply brief challenging the findings.

This process ultimately served no one. The purpose of findings of fact is to facilitate review. Instead, our focus here was turned to the process by which the findings were created rather than the merits of the findings. Accordingly, and with the knowledge that this is not the only recent case where similar events occurred, we set forth how the parties should have behaved.

The initial failure is with the respondent.[n7] The prevailing party must make efforts to get findings entered in a manner that facilitates timely review of an appeal. Although the ultimate responsibility rests with a trial judge, the reality is that the prevailing party has the most at risk and should make sure that a busy trial judge is presented with the opportunity to enter appropriate findings in a timely manner.

When that initial responsibility is not met, the appellant should, as counsel did here, make best efforts to alert respondent that action is needed. [n8]Basic principles of civility and professionalism dictate that all counsel should attempt to resolve problems before they grow into bigger issues. If informal methods fail, then appellant should enlist this court’s assistance. Notification that required findings are missing and an indication that a continuance of the briefing obligation is necessary would be one way to approach the problem. Another would be to file a motion to compel entry of findings. In either instance, notifying this court and obtaining its assistance should lead to a timely resolution of the finding issue so that counsel can obtain the necessary record to address the client’s case.[n9]This approach should lead to a speedier consideration of the case than attempting to address the issue by the briefing process.

*     *     *

[n5] This is the third case assigned to the writing judge within the past six weeks in which necessary findings were missing, but the appellant did not seek this court’s assistance before filing his brief.

[n6]  Although not in our record, both parties acknowledge in their briefing that appellant’s counsel contacted the prosecutor about the problem and that he then began an
effort to obtain defense trial counsel’s agreement with the proposed findings while the court clerk attempted to locate Judge Altman in transitu. We commend counsel for her professionalism in starting efforts to resolve the problem in an informal manner.

[n7] We know that sometimes other actors—judges, court clerks, trial counsel—may be the cause of delay, but that is not what happened here.

[n8] Counsel also may learn that the findings process already is underway simply by speaking to the other side.

[n9] Counsel for appellant has an obligation to review the record and determine whether meritorious issues exist for appeal. That obligation cannot be met without having an adequate record for review that includes findings required by our rules and statutes. It usually will not serve the client’s best interests to file a brief with an inadequate understanding of the record.

 

 

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