8th Circuit Ruling Revisited

Editor:

You used a prominent, highlighted, column-long box to take a backhanded slap at the decision of the appellate court in Dwyer v. Kislak, ___ Wn.App.___, 13 P.3d 240 (2000), last month (January Bar News, p. 7). You implied that the court imposed sanctions for citation of unpublished authority despite the lawyerís principled discussion of the constitutional grounds permitting such citation.

I am the appellate lawyer representing the class of homeowners who prevailed in that Consumer Protection Act (CPA) case. Let me suggest a bit more investigation be done before making such accusations. Iíd like to outline what really happened here.

It is inaccurate to say that the court sanctioned opposing counsel "after first calling the Courtís attention to the 8th Circuit decision holding them [no-citation rules] unconstitutional." In fact, after I filed the opening brief, which was based solely on published authority, the mortgage lender filed a response relying almost exclusively on unpublished, out-of-jurisdiction, trial court decisions for its CPA argument. Those trial courts typically have rules barring citation of such unpublished authority.

That response brief then cited an unpublished decision from the Washington Court of Appeals, and criticized me for failing to call it to the panelís attention. The briefís exact words were, "The Dwyers do not cite this Courtís recent decision in Cain v. Source One Mortgage Servs. Corp ...which affirmed summary judgment in favor of the mortgage servicer on identical claims...." Response, pp. 21-22.

That response made no argument about the unconstitutionality of RAP 10.4(h), which bars citation of such unpublished decisions. That response did not cite the Anastasoff(1) case, though you imply they did. In fact, that response is dated Dec. 20, 1999, and the Anastasoff case was decided in 2000. (Further, Anastasoff has now been vacated.)

The first mention of the propriety or impropriety of citing those unpublished cases was in my reply. Iím sure that if you had had the opportunity to see that reply, you would know that the respondent was made aware of the court rules of various jurisdictions (including our own) barring citation of unpublished decisions.

Anastasoff was cited for the first time by respondentís attorney at argument. It was in response to Judge Bakerís statement to him, at the beginning of argument, that he had made the error of citing unpublished authority in violation of Washingtonís court rule in his brief and should not repeat that error in argument. Despite this direct warning, no further briefing on publication or citation occurred.

In fact, the sanction that ensued was not for relying almost exclusively on unpublished out-of-jurisdiction trial court decisions. Instead, the appellate court took the more restrained course of imposing a minimal sanction for citing the unpublished Washington decision ó something clearly barred by our longstanding rule.

Your highlighted alert concluded with a call for Washington Supreme Court review "to gain a definitive ruling on this issue." Certainly, RAP10.4(h), a Supreme Court rule, and Division Iís decision are "definitive" now.

I donít mean to diminish the importance of the debate about publication, and how it impacts both judicial accountability and the development of the law. But your decision to call for Supreme Court review in this pending case, at the expense of my clients, is inappropriate. This case does not satisfy the prerequisites to review because it presents no real constitutional issue: in Washington, the Legislature has specifically enacted a statute (RCW 2.06.040) barring courts from publishing decisions lacking precedential value. Thus, any purported constitutional conflict with the legislative branch is absent here,and there is certainly no conflict with any judicial decision that counts.

The policy debate can continue elsewhere. I am glad that it continues in this magazine. I just want this part of the debate to be based on an accurate understanding of the facts.

Thank you.
Sheryl Gordon McCloud
Seattle

1) Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated, ___F.3d ___, 2000 WL 1863092 (8th Cir. 2000).

Editors Response

Bar News appreciates Ms. McCloudís insight into this issue. The information we receive is limited to the Courtís published opinion, which was quoted at some length. We believe that the Bar is served by a lively public debate over the availability and use of "unpublished" opinions. (See, Bar News, 54:12, Dec. 2000, p. 28). We also believe that this is an issue that deserves review by our highest courts. We take no position on the merits of any particular case. ó Ed.