The Confusing Standards for Discretionary Review in Washington and a Proposed Framework for Clarity
By Judge Stephen J. Dwyer, Leonard J. Feldman and Hunter Ferguson
It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. Specifically, RAP 2.1(a) divided appeals into two categories: (1) review as a matter of right, called "appeal"; and (2)review of interlocutory orders by permission of the appellate court, called "discretionary review."1 RAP 2.3(b), in turn, specifically states various "considerations" that govern acceptance of discretionary review of superior court decisions.2 Relevant here, subsection (b)(1) permits discretionary review if "[t]he superior court has committed obvious error which would render further proceedings useless," and subsection (b)(2) permits such review if "[t]he superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act."3
The Task Force comment that accompanied RAP 2.1 explains that the changes to the process for seeking interlocutory review of trial court decisions were made because "[r]eview by way of extraordinary writ under the former rules has been the most confusing of all appellate procedures, and precedent for almost any arguable position can be found."4 The question addressed in this Article is whether that confounding condition has changed for the better. Is the process for seeking discretionary review clearer today than it was before the RAP became effective? Or is there once again precedent for almost any arguable position? If the answer to the latter question is "yes," then Washington appellate courts have some work to do to clarify these rules and procedures.
The changes to RAP 2.3(b)(1) and (b)(2) should be beneficial. The mechanics of seeking discretionary review are now well defined and understandable: the rules clearly state how litigants are to seek discretionary review. Likewise, the considerations governing discretionary review are also clear. In an influential article on discretionary review, former Washington Supreme Court Clerk Geoffrey Crooks appropriately recognizes that RAP 2.3(b)(2) is applicable "only when a trial court's order has immediate effects outside the courtroom."5 Crooks goes on to state that "[t]his interpretation of the 'status quo' test and 'freedom of a party to act' test would fit with the notion that subsection (b)(2) was intended to focus on injunctions and the like."6 That is, it applies to rulings that have the effect of doing something other than merely resolving an issue in the litigation.
Unfortunately, the Washington Appellate Practice Deskbook tells a different story. The Deskbook recognizes, at the outset, that the Task Force comment regarding RAP 2.3(b)(2) indicates that it "is primarily directed to orders pertaining to injunctions, attachments, receiverships, and arbitration."7 But the Deskbook authors go on to state that this "limited view is misleading; this ground has been used to address a broad range of decisions that affect the course of litigation but may not affect the case on the merits."8 Then, at the conclusion of this discrete discussion, the authors note Crooks's contrary view.9 Making matters worse, not only are there differing interpretations of the considerations governing discretionary review, but the decision whether to grant or deny discretionary review has largely been made by court commissioners in unpublished orders, so there is little published case law or other guidance to resolve this debate.10
The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court's determination. The appellate court commissioner can then simply choose from the available options and deny or grant discretionary review if the commissioner concludes that such review is warranted. This approach creates continued uncertainty and may cause litigants with meritorious petitions for review to not request such relief (given the cost of doing so and uncertain application of the applicable standards), while litigants with undeserving petitions for review (but greater resources) request such relief because there is no clear indication that such relief will be denied. Thus, there is a compelling need for clarity.
The remainder of this Article is organized as follows: In Part II.A, we survey Washington case law applying RAP 2.3(b)(1) and (b)(2) standards. In Part II.B, we apply basic principles of statutory interpretation to the RAP, as well as consider the legislative history of the rule to evaluate this precedent. Based on our analysis, we conclude that subsections (b)(1) and (b)(2) should properly apply to distinct situations and that review under subsection (b)(2) should be granted only in the context of a court order having immediate effects outside the judicial process, such as a preliminary injunction, an order requiring disclosure of privileged communications, or an order to divulge a trade secret or other confidential information. We also explain that an alternative reading-one that applies subsection (b)(2) to partial summary judgment or evidentiary rulings-would render subsection (b)(1) unnecessary. Further, we explain that our suggested approach would bring Washington jurisprudence in line with federal standards governing interlocutory review. Part III briefly concludes.
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