August 13, 2012: Ask legislative candidates to restore the common law.

On August 6, 2012 I discussed how one federal judge, The Honorable William G. Young, viewed the change in the process of “judging” which has been going on in federal courts since the seventies.  See

As Judge Young explained:

Many [Judges] no longer perceived their primary tasks as deciding motions after oral argument and presiding as neutral referees at trials.  They were encouraged to consider themselves managers whose job was to dispose of cases expeditiously.  From that perspective a trial seemed wasteful.

Judge Young is correct; our judicial system has been changed.  The goal of the judicial department is no longer to have judges carefully applying precedent to the facts of disputes through issuance of careful opinions stating the judges’ reasoning.  Now the goal of the judicial department is simply to have judges dispose of cases as quickly as possible.  This goal can be and is being reached in Washington by the Washington Court of Appeals deliberately deciding most cases as non-precedential decisions, which are not incorporated onto the common law as either binding or persuasive precedent.

The Washington Court of Appeal’s growing aversion to precedential case law is troubling.  The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained.  But precedent cannot be a mechanism for equal justice where it is intentionally disowned by judges.

People like John Wyss and Constantin Hapaianu (see ), and the large majority of all parties to appeals in the Court of Appeals, never see their cases become a part of the common law.  Indeed, most Court of Appeals decisions now days are lost in a foul purgatory where lawyers get sanctioned if they try to argue that the law applied to the facts of one of those cases should be considered by a Washington.  Only federal judges who scavenge to find Washington precedent can cite these decisions for the case law precedent  they truly are.

Can you believe it?  No lawyer can even cite to an unpublished case, notwithstanding unpublished cases constitute the vast majority of the Court of Appeals cases being decided.  Citing to such decisions is a grounds for monetary sanctions.  Why?  What is the Court of Appeals doing in these decisions which cannot withstand the light of day?

The problem for us, the people, in the arbitrary decision-making developed by the Court of Appeal outside the common law is that it deprives us of predictability and equal access to justice.  See infra.  The Court of Appeals abandonment of our common law system of justice comes at great cost, both economically and in human terms.

Common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions that were made about similar cases are valuable, and the case in question is evaluated on the basis of past cases. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them.

What the Court of Appeals is doing is deciding most cases as if they have no precedential value.  Such decision-making goes against the very nature of the common law and the duty of the courts in Washington’s Judicial Department to declare what the law is.

A “common law system” is a legal system that gives great precedential weight to common law,[2] on the principle that it is unfair to treat similar facts differently on different occasions.[3] The body of precedent is called “common law” and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression“), judges have the authority and duty to make law by creating precedent.[4] Thereafter, the new decision becomes precedent, and will bind future courts.

The common law requires an abundance of case law precedent to evolve over time into a fact rich legal framework for purposes of the law’s evolution.  This is because the common law, unlike statutory law, is supposed to evolve over time.

The common law evolves to meet changing social needs and improved understanding

Justice Holmes cautioned that “the proper derivation of general principals in both common and constitutional law … arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions.”[20] Judge Benjamin Cardozo noted the “common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively,” but “[i]ts method is inductive, and it draws its generalizations from particulars.”[21]

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series ofgradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.[22] In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable.[citation needed] For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences).

By deciding most of its cases as non-precedential decisions, the Court of Appeals goes against the genesis of our system’s use of precedent as the basis for judicial decision-making.  Rather, than throwing all cases into the mix where the rationales for each decision can be properly evaluated, distinguished, followed, and/or overruled, the Court of Appeals reserves for itself a second bite at the apple.

Although this tactic is great for avoiding stare desisis allowing and judges to re-make decisions over and over again, it is not so good for those people who believe that similar cases should be decided so as to give similar and predictable outcomes.

The Court of Appeals distaste for the common law is without doubt the largest problem facing equal access to justice.

So how can we get the Court of Appeals back on track and restore the common law?

We need the legislature to delete the crossed out sentences below, which currently appear in RCW 2.06.040

 The court shall sit in panels of three judges and decisions shall be rendered by not less than a majority of the panel. In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published. Panels in the first division shall be comprised of such judges as the chief judge thereof shall from time to time direct. Judges of the respective divisions may sit in other divisions and causes may be transferred between divisions, as directed by written order of the chief justice. The court may hold sessions in cities as may be designated by rule.
The court may establish rules supplementary to and not in conflict with rules of the supreme court.



Additional References:

Total Views: 2654 ,

About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: Visit the Google+ Page: Visit the Facebook Page:   *Web Developer: David J. Posel
Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *