Back in February, the Supreme Court of Washington decided In re Arnold, which held that a Division of the Court of Appeals should not follow the decisions of the other Divisions as a matter of horizontal stare decisis. As I observed at the time, the Supreme Court’s distinction between inter-Division conflicts and intra-Division conflicts doesn’t find much basis in the law:
The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.
Last week, Chief Judge Appelwick of Division 1 decided to take the next logical step. He asserted that “[o]ne division of the Court of Appeals is not bound by the decision of another division” (citing to In re Arnold). But then he went further: “Nor is one panel of the Court of Appeals bound by another panel, even in the same division.” In re Marriage of Snider at 4 (emphasis added).
The hottest new Washington Supreme Court decision is Eyman v. Wyman. It has everything.
A split judgment with no clear majority decision. A debate about the proper role of the courts when dealing with unconstitutional statutes. And Washington’s indirect initiative procedure.
What’s Washington’s indirect initiative procedure?
It’s that thing, where a group of citizens can collect signatures, and then propose a statute . . . .
Okay, that’s enough of that gimmick. The case, however, is truly fascinating, and I think it’s worth a deep dive. I’m not going to focus too much on the substance of the dispute, which involves the rules regarding the initiative process. But the other two things–the lack of a majority decision and the remedial question of how to deal with an unconstitutional statute–are tied up with those rules. So there’s a bit of background work to do before we get to the good stuff. Stay with me. Continue reading
Like many states, Washington has its own citation rules. The Washington Style Sheet tells Washington judges and lawyers to use The Bluebook—with a few exceptions. So, for example, instead of citing statutes with “Wash. Rev. Code” we can just use “RCW.” And we don’t need to provide the publication date or publisher for citations to statutes. Huzzah! And instead of using just P.2d or P.3d to cite Washington cases, we also use Wn. App. and Wn.2d (no space!) as additional parallel citations. Continue reading
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.
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
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…
Earlier today, the International Franchise Association filed a lawsuit against Seattle’s $15 minimum wage, claiming that the ordinance unfairly discriminated against franchisees as a class. Part of the claim (perhaps the strongest part) is based on Article I, Section 12 of the Washington State Constitution, which reads in its entirety:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
The IFA claims that the minimum wage ordinance violates Art. I, Sec. 12 because it treats one class of corporations (franchisees) differently than other corporations.
But why do “classes” of corporations receive any protection under the Washington Constitution? The text of the provision specifically talks about granting privileges to “any citizen” (the singular), any “class of citizens” (the plural), or any “corporation” (the singular). There is no language regarding “classes” of corporations.
Under the usual rules regarding the interpretation of constitutional texts, the singular “corporation” next to the specific inclusion of classes of non-corporate citizens would compel the conclusion that classes of corporations are not protected by the provision.
I did a bit of quick research this afternoon through Washington Supreme Court cases, and none of them seem to directly address this question—though they do apply the provision to classes of corporations. It seems like IFA’s complaint has some basis in Washington’s case law, but I wonder if it has any basis in Washington’s Constitution?