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: Continue reading

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Zombie Horizontal Stare Decisis in the Washington Court of Appeals

If you read this blog, you know that the Washington State Supreme Court recently rejected horizontal stare decisis among the Divisions of the Court of Appeals. They were pretty clear about it:

We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals.

In re Arnold, 410 P.3d 1133, 1139 (Wash. 2018). Any kind! That’s pretty vehement.

When the Court issued Arnold, I was a bit confused. The Supreme Court seemed concerned that a Division should not feel “bound” by another Division. But the Court of Appeals in Arnold never said it was bound. Instead, it was just following its sister Division for prudential reasons.

Which brings us to today’s Court of Appeals decision from Division 1 in State v. Sullivan. The Sullivan court does not cite Arnold, but it does rely on precedent from another Division. Here’s the Court of Appeals rejecting one of the appellant’s arguments:

Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead, Sullivan’s argument relies entirely on speculation, arguing “it is safe to assume one or more jurors left the jury room. . . , if, for no other reason than to use a bathroom” during the two hours of deliberations. “[S]peculation that a juror may have left the jury room during deliberations . . . is insufficient to warrant review under RAP 2.5(a)(3).” State v. St. Peter, 1 Wn. App. 2d 961, 963, 408 P.3d 361 (2018).[n2]

And here’s the problem. The Sullivan court relies on St. Peter and only St. Peter for this point of law. But St. Peter is not a Supreme Court case. It’s not even a case from Division 1 of the Court of Appeals. Instead, St. Peter was decided by Division 3.

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The Unanimous Washington Supreme Court to Ziff: “You Are Wrong”

Well, not quite. They didn’t call me out by name. But still… Yikes.

Last month I wrote about In re Arnold, a then-pending case in the Washington Supreme Court involving stare decisis and the state’s intermediate Court of Appeals. I argued that the Supreme Court should stay out of it. Let the Court of Appeals figure out its own rules for stare decisis. Or perhaps the Supreme Court could use the rulemaking process or recommend that the legislature clarify the Court of Appeals’ structure so that stare decisis could work more smoothly.

The Supreme Court did not take my advice. In a unanimous opinion (!) the Court dove right in, holding that a Division of the Court of Appeals should not follow the decisions of other Divisions. I can appreciate the Court’s desire to resolve this problem. But unfortunately, I think the Court’s decision raises more questions than it answers. Here are a few: Continue reading

Stare Decisis and the Consubstantiality of the Washington Court of Appeals

You know the line about a bad restaurant: “The food is terrible. And the portions are so small!” Well, this is the blog version of that restaurant. It’s not a good post. And it’s so long.

Here’s my excuse: This post is about a currently pending case in the Washington Supreme Court that seeks to set a rule of stare decisis for the state’s intermediate court of appeals. So things get abstract pretty quickly. This is a case about the law about law about law. Yup, you read that right: It’s meta-meta-law. First we’ve got the substantive law: the three-part test, the scienter requirement, the proper jury instruction, the meaning of the statutory term, &c. That’s the law. And then there’s stare decisis—i.e., the law about that law. A court might disagree with a prior decision on the substantive law. The applicable rule of stare decisis tells the court whether or when the court gets to depart from that substantive law. But who determines the relevant rule of stare decisis? And on what basis is that rule determined? That’s the law about the law about the law. And it gets a bit messy.

But first, some background…

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Washington Court of Appeals to Supreme Court: Bring It On!

On Monday the Supreme Court issued Nitro-Lift Technologies, L.L.C. v. Howard, a bit of a smack down to the Oklahoma Supreme Court. The short version: Two parties had a contract dispute, the contract had a mandatory arbitration clause, one party said the entire contract was unenforceable, and the Oklahoma Supreme Court held–despite Supreme Court precedent to the contrary–that the Oklahoma courts had the power to determine the enforceability of the contract regardless of the arbitration clause.

As Brian Rogers explained: “The Supreme Court was not impressed.”

McKayla Maroney after hearing the Oklahoma Supreme Court disregarded the FAA

Why? Well, because according to the Court “[t]he Oklahoma Supreme Court’s decision disregards this Court’s precedents on the FAA.” Continue reading

Daily Decisions: Jurisdiction Revisited (and Muddled)

There’s a lot of back story in A & W Farms v. Raymond E. Cook (Division 3, May 22, 2012), but I’ll do my best to summarize the gist of the relevant facts.

A & W Farms (“A&W”) sued Raymond Cook and got a judgment against him (well, against his business). During that litigation, Cook purchased a ranch, but arranged the transaction so that it was placed in the name of Adeline Johnson (another defendant in this action). A&W then moved, in a supplemental proceeding, to set aside the purchase as a fraudulent transfer to Johnson. There were lots of problems with discovery in the fraudulent transfer action: Johnson was not amenable to deposition; Cook avoided service and, for some time, refused to appear; &c.

In the end, the trial court concluded that the purchase of the ranch in Johnson’s name, instead of Cook’s name, was a fraudulent transfer. The court therefore quieted title to the ranch in Cook’s name, which meant it was subject to A&W’s judgment.

So what’s the problem? Well, this is another case about subject matter jurisdiction! Cook argued in the Court of Appeals that the trial court lacked jurisdiction over A&W’s fraudulent transfer claim because it “should have been brought in the county where the property is located.” Having just read MHM&F, LLC v. Edward Pryor, Jr. (Division 1, May 21, 2012) (or perhaps the Ziff Blog summary!) you’re probably thinking to yourself, “Of course there was subject matter jurisdiction! The Washington Constitution grants broad SMJ to the superior courts that is not subject to statutory whittling!” At least, that’s what I thought.  Continue reading

Daily Decisions: Federal Statute Adequately Protects Alleged Washington Public Policy

Ah, the tort of wrongful termination in violation of public policy (“WTVPP”). It’s one of those little quirks of Washington law that made the bar exam so fun to study for. In Charles Rose v. Anderson Hay & Grain Company (Division 3, May 22, 2012), the Court of Appeals held that, even assuming there existed a Washington public policy in need of protection, the relevant federal statute adequately protected that policy. Accordingly, the plaintiff’s claim for WTVPP under Washington law was properly dismissed. Continue reading