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…

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: Court of Appeals Again Clarifies Subject Matter Jurisdiction

There are a lot of facts in MHM&F, LLC v. Edward Pryor, Jr. (Division 1, May 21, 2012), but none of them really matter. The short story: Pryor owed money on a mobile home space, he didn’t pay, so the plaintiff filed an unlawful detainer action against him. Pryor lost.

On appeal, Pryor raised two issues that he failed to raise in the trial court: (a) that the wording on the summons was defective and (b) that the mobile home association for the group of lots should have been named as a necessary party. Pryor claimed his failure to raise these issues below was not fatal because they both went to the trial court’s subject matter jurisdiction. Continue reading

Twitter, Standing, and “Standing”

William Carleton has an interesting and important post up at Counselor @ Law regarding a recent New York State Court decision involving Twitter, Occupy Wall Street, and something the court calls “standing.”  Bill sets out the facts of the case in his post, but the gist as is follows: New York is investigating Malcolm Harris in connection with alleged disorderly conduct during the OWS (or #OWS, in the hashtag-laden parlance of the Court’s opinion) protests. Pursuant to that investigation, the New York DA’s office issued a subpoena to Twitter to produce Harris’s tweets related to #OWS. Harris was notified of the subpoena and moved to quash it. The Court denied Harris’s motion, holding that Harris “has no standing to move to quash the subpoena.”

Bill takes issue with the Court’s holding on standing — calling it “downright crazy” — and I tend to agree. He points out that Harris had “obvious interests at stake” in the subpoena, since the subpoena goes after his tweets in connection with a criminal investigation of him. How could he not have standing!?

Well, like I said, I agree with Bill — and I’d like to spend a few words expanding on that agreement and discussing how courts often use the term “standing” in all sorts of different circumstances with different meanings all of which leads to a good deal of sloppiness. Continue reading

Daily Decisions: Jurisdiction is Jurisdictional

There’s a lot of build up and procedural background in Magee v. Rite Aid (Division 1, January 17, 2012) (published April 23, 2012), but in the end it’s all just sound and fury signifying, well… not nothing, but not much. In the end, the Court of Appeals held that the Board of Industrial Insurance Appeals (“Board”) has subject matter jurisdiction over any workers’ compensation-related matter, regardless of whether that matter is beyond the Board’s proper scope of review. If the Board decides a workers’ comp issue outside of its scope of review, such a decision may be an error of law, but it is not a jurisdictional error. Accordingly, a party’s failure to challenge such an error on review (either to the Superior Court of the Court of Appeals) constitutes the waiver of any claim that the Board’s decision was outside the scope of review. Continue reading