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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Does Article I, Section 12 of the Washington Constitution Apply to Classes of Corporations?

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?

SCOW: Liquor Initiative Upheld 5-4 (in a boring series of opinions)

So as you probably already know, the Washington Supreme Court upheld I-1183, the liquor privatization initiative, in Washington Association for Substance Abuse and Violence Prevention v. State of Washington (Wash., May 31, 2012). While the decision is politically and practically important, I’ve gotta say that I don’t think the opinions themselves are that interesting legally. I mean, it’s sort of a judgment call whether the various parts of the initiative are sufficiently related to be a “single subject” or whether the title of the initiative is descriptive enough to satisfy the “subject-in-title” rule. Some judges would call it one way, some would call it the other, but there’s not much more to it than that.

But hey, I don’t do this for me, I do it for the people! So here are some thoughts on the three (yes, three!) decisions, starting with the opinion of the Court: Continue reading

SCOW: How to Apply an “Ensuing Loss” Clause and the “Efficient Proximate Clause” Rule

A while back (well, not too long ago, but it was May 17th, which seems like eons ago in internet news cycle time) the Supreme Court issued a useful opinion on the meaning and interpretation of “resulting loss” or “ensuing loss” clauses in all-risk insurance policies and the application of the “efficient proximate cause rule.” The case was Vision One, LLC v. Philadelphia Indemnity Insurance Company (Wash., May 17, 2012) (en banc). Continue reading

SCOW: When Does a Parent Provide “Regular[] . . . Support”?

I’m not in the mood to be depressed this afternoon, nor am I in the mood to make you depressed, so I’m going to skip over most of the facts in Estate of Bunch v. McGraw Residential Center (Wash., May 3, 2012), which the Supreme Court handed down last week. Basically, Ashlie Bunch lived for a while with her mother, Amy Kozel, in Florida. Then in 2003 Ashlie moved to Washington to live with her father, Steven Bunch, which she did until 2008, when she died.

Bunch claimed (and we’ll assume) that after Ashlie moved to Washington, Kozel essentially had no relationship with Ashlie.  Bunch sued defendant McGraw Residential Center pursuant to RCW 4.24.010, which provides a cause of action for a parent based on the injury or death of a child. Kozel attempted to intervene in the suit, since she was also Ashlie’s parent. 

“The fundamental point of contention in this case is whether Kozel has standing to proceed under RCW 4.24.010.” The relevant statutory language reads:

A mother or father, or both, who has regularly contributed to the support of his or her minor child, and the mother or father, or both, of a child on whom either, or both, are dependent for support may maintain or join as a party an action as plaintiff for the injury or death of the child.

 (The emphasis is in the Court’s opinion, though not in the statute.) According to the Court, “the key question is whether the term ‘has regularly contributed’ requires that the support be continuing at the time of the child’s death.” Since Kozel was not “regularly contributing” support at the time of Ashlie’s death, a requirement of support up to the time of death would bar Kozel’s participation in the lawsuit. Continue reading