City of Seattle v. Keene

• Decision Date: 01 October 2001
• Docket Number: No. 46029-3-I.,46029-3-I.
• Citation: 31 P.3d 1234,108 Wash. App. 630
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Petitioner, v. Jason S. KEENE and George Holifield, Respondents.

31 P.3d 1234

108 Wash. App. 630

CITY OF SEATTLE, Petitioner, v. Jason S. KEENE and George Holifield, Respondents.

No. 46029-3-I.

Court of Appeals of Washington, Division 1.

October 1, 2001.

As Amended on Denial of Reconsideration November 9, 2001.

Moses F. Garcia, Seattle City Atty., Seattle, for petitioner.

George L. Bianchi, Bianchi Law Firm, Seattle, for respondents.

ELLINGTON, J.

A statutory writ of certiorari may be granted only when an inferior tribunal has exceeded its jurisdiction or acted illegally, and there is no adequate remedy at law.¹ We granted discretionary review in this matter to reconcile confusion in the case law as to whether the writ is available to correct errors of law. It is, and we reject the statement in State v. Epler² to the contrary. Because the superior court judge relied upon Epler, we remand.

FACTS

Jason Keene was charged in Seattle Municipal Court with driving while under the influence. The charge was based in part on a breath test blood-alcohol reading from a Datamaster device. The Datamaster used software designed by National Patent Analytical Systems, Inc. (National), an Ohio corporation. Keene obtained and served a subpoena duces tecum requiring National to produce the software and other related materials. National did not respond, except to send a letter to the court to the effect that it had provided the software to defense counsel in the past and was willing to do again, on condition of a protective order and reimbursement for associated expenses.

Before the Honorable George Holifield, the City took the position that National had responded to the subpoena by virtue of the letter. Keene objected to any protective order. Both parties requested a show cause hearing to determine whether the corporation should be held in contempt. On grounds such a hearing would waste the court's time,³ the court refused to order a show cause hearing, and summarily found the corporation in contempt. As a sanction for the corporation's contempt, the court granted Keene's motion to suppress the breath test evidence.

Proposed findings and conclusions regarding contempt were filed but never signed; no order was ever entered. The court never ruled on the City's motion for reconsideration. No finding was entered that the suppression order effectively terminated the case, so appeal was not available under RALJ 2.2(c)(2). The City petitioned for a statutory writ of review. The superior court denied the petition.

DISCUSSION

We granted review to resolve an apparent conflict between our decision in City of Mount Vernon v. Mount Vernon Municipal Court⁴ and a decision of Division III in State v. Epler.⁵ We must also discuss a Division II case, Washington Public Employees Ass'n v. Washington Personnel Resources Bd.,⁶ which is directly on point. In addition, after we granted review, the Supreme Court decided another relevant case, Commanda v. Cary.⁷

The writ of review in question is statutory. RCW 7.16.040 provides:

A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.

Thus the superior court may grant a writ of review only if the lower tribunal exceeded its jurisdiction or acted illegally, and there is no appeal or adequate remedy at law.⁸

In State v. Epler, a defendant sought a writ of review after the district court refused to dismiss under CrRLJ 8.3(b). Such a motion will rarely be a proper subject for a writ, since CrRLJ 8.3 applies only to criminal cases and there is always a right of appeal from conviction.⁹ The Epler court held the availability of an adequate remedy at law precluded the writ:

The fact that an appeal will not lie directly from an interlocutory order is not a sufficient basis for a writ of review if there is an adequate remedy by appeal from the final judgment.

. . . .

The denial of a CrRLJ 8.3(b) motion to dismiss is routinely reviewed on appeal from the final judgment.¹⁰

Although the Epler court decided the writ was precluded because an adequate remedy existed, the court first analyzed whether Epler had satisfied the threshold for a writ, which it characterized as exclusively a matter of jurisdiction:

Mr. Epler's affidavit ... did not even allege lack of jurisdiction. He complained only that the district court committed a clear error at law. This is not enough.

The threshold for a discretionary writ is not whether the district court committed error of law, but whether the court had jurisdiction to decide the motion. If the court has subject matter jurisdiction, a merely erroneous ruling is not an act in excess of the court's jurisdiction, and therefore no writ lies. The court's exercise of its discretion is not reviewable by extraordinary writ.¹¹

This discussion in Epler is dicta. It is this proposition, however—that a merely erroneous ruling is not a proper subject for a writ of review—upon which the superior court judge here relied.

Mount Vernon¹² presented essentially the opposite scenario. There, the prosecuting authority sought interlocutory review of an order suppressing evidence. The court observed:

When a municipal court enters an order suppressing evidence, the City has no right to a RALJ appeal unless the trial court expressly finds that the practical effect of the order is to terminate the case. But the City may apply to the superior court for review of the municipal court's interlocutory ruling by writ of review.... We can discern no tenable reason for the superior court's decision to quash the writ.¹³

Factually, this result is easily reconciled with Epler, since unlike a criminal defendant, a prosecuting authority has no assurance of an opportunity to appeal an order suppressing significant evidence. Mount Vernon is inconsistent with Epler, however, if Epler's discussion of the grounds for writs of review is correct. While the Mount Vernon court engaged in no discussion of the test for granting a writ, its implicit rationale is that a writ lies when a court commits error of law and there is no other adequate remedy. This invokes the "acting illegally" ground for the writ.

In the only decision discussing the "acted illegally" ground for review, Division II held that a court acts illegally when it misinterprets statutory law. In Washington Public Employees Ass'n (WPEA) v. Washington Personnel Resources Bd.,¹⁴ the court considered whether the Personnel Board acted illegally when it misinterpreted substantive law. Finding the phrase "acted illegally" susceptible to multiple interpretations, the court observed that one legislative purpose for the writ was to protect against administrative injustice by providing review by writ where a tribunal has made a substantive legal error: "Thus, the intent of the legislation is best furthered by interpreting `illegality' to include errors of law and allow review where an inferior tribunal exercising quasi-judicial functions allegedly has made a legally erroneous ruling and there is no other adequate remedy."¹⁵ Observing that "acting illegally" cannot mean merely acts exceeding the court's jurisdiction, because such a reading would render the statutory language redundant, the court found that it would be inconsistent with "the full appellate review afforded by RCW 7.16.120 to preclude statutory certiorari because a petitioner alleged only an error of law."¹⁶

The court also found its interpretation consistent with RCW 7.16.120, which provides factors for courts to consider after granting a writ of review:

(1) Whether the body or officer had jurisdiction of the subject matter of the determination under review.

(2) Whether the authority, conferred upon the body or officer in relation to that subject matter, has been pursued in the mode required by law, in order to authorize it or to make the determination.

(3) Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.

(4) Whether there was any competent proof of all the facts necessary to be proved, in order to authorize the making of the determination.

(5) Whether the factual determinations were supported by substantial evidence.

As the WPEA court points out, the third factor directly implicates error of law.¹⁷

We have closely examined the statute and the writ cases to discern which analysis is correct. We conclude that Epler is inconsistent with longstanding Supreme Court case law. In addition, Epler relies exclusively upon cases discussing the writ of prohibition, which has a different purpose and character, a different statute, and a different history.

For the proposition that error of law is not a basis for the writ of review, the Epler court relies upon four cases: State ex rel New York Casualty Co. v. Superior Court for King County,¹⁸ State ex rel. O'Brien v. Police Court of Seattle,¹⁹ State ex rel Panos v. Superior Court for King County,²⁰ and State ex rel Moore v. Houser.²¹ Each of these cases involve writs of prohibition rather than writs of certiorari. Only one of these cases mentions the writ of review.

In New York Casualty, a defendant challenged the sufficiency of the evidence at the end of plaintiff's case; at the invitation of the trial judge, plaintiff moved for voluntary nonsuit. Defendant sought a writ prohibiting the judge from entering the nonsuit. The Supreme Court considered the purposes of the writ of prohibition ("to prevent a tribunal... from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction"), and reiterated that such a writ "will not issue to prevent the commission of mere error, ... nor...