First of all: Hi. It’s been a while. I’m trying to get in the habit of posting my random musings here instead of in Bluesky threads. But you can still find me there!
Anyway, an interesting set of opinions from the Washington Supreme Court last week in In re Schoenhals. The substance of the four opinions is, I’m sure, of interest to many. But I’m interested in the case more as a matter of procedure. The Washington Supreme Court has nine Justices. So as anyone with the tiniest bit of mathematical knowledge knows, you need five votes to get a majority decision that creates precedent. When any single opinion garners five or more signatories, it’s indisputable that the majority opinion is entitled to precedential effect. But things get messy when no single opinion reaches that five-vote threshold. I’ve written about this problem before in the WSBA Bar News. Rachael Clark has written about it with much more depth and detail in her Washington Law Review comment, Piecing Together Precedent: Fragmented Decisions from the Washington State Supreme Court.
In Schoenhals, however, the Supreme Court takes a crack at helping ameliorate the problem. The Court’s resolution of the case is expressed in four different opinions. There’s the “lead” opinion authored by Justice Whitener and joined by Justices González, Montoya-Lewis, and Mungia. That’s four. Then there’s a separate “concurring” opinion, authored by Justice Madsen and joined by Chief Justice Stephens and Justices Johnson and Yu. That’s another four. Lastly, there’s a “a separate concurring opinion” authored by Justice Gordon McCloud, writing for herself.
As I described in my WSBA piece, a lawyer might have a hard time figuring out what the precedential effects are from this group of fractured opinions, none of which expresses the views of a majority of the Court. This can be extra under the Washington rule, which looks for principles of law reached by a majority of the court, even if that principle-based majority includes dissenting opinions.
But thankfully, the Schoenhals Court gives us a hand! I said the resolution was expressed in four different opinions. The first of those four, before the lead opinion, is a short (two-page) per curiam opinion that sets out the reasoning and votes for the three substantive opinions that follow. And the per curiam closes by making clear the practical result of the fractured opinions: “The PRP is granted, and the case is remanded to the trial court for a new sentencing hearing.” So at least the lower courts will have some idea what to do.
Two quick thoughts about this. First, I had never noticed this kind of per curiam before. But the Court has done it at least one other time, somewhat recently. In January 2023 the Court similarly provided a helpful per curiam roadmap in State v. Bagby, 200 Wn.2d 777, 522 P.3d 982 (2023). There, the per curiam explained that “[t]he court unanimously holds that two elements of the prosecutor’s conduct objectively constituted a flagrant or apparently ill-intentioned appeal to jurors’ racial bias in a way that undermined the defendant’s credibility and presumption of innocence”; that “[i]n the lead opinion, four justices . . . would additionally hold that the prosecutor committed misconduct by questioning a witness about the defendant’s dog”; and that “five justices . . . hold, in a concurring opinion, that the record in this case does not support the conclusion that this conduct was reversible error.” Note that the so-called “concurring” opinion actually controls over the four-justice “lead” opinion on that last issue.
Second, both Bagby and Schoenhals cite the Court’s own internal rules and procedures as support for this preliminary per curiam to help sort out the precedential weight and holdings from various opinions. Rule II-8(B) specifically allows for this kind of per curiam:
B. Plurality Decisions
The Court may issue a per curiam opinion summarizing the votes of the Justices in a plurality decision, preceding the lead opinion. Any Justice may raise the prospect of issuing such an opinion before the opinions in a plurality decision are referred to the Reporter’s Office for review. The Reporter’s Office may raise the prospect of issuing such an opinion after the opinions in a plurality decision have been referred to that office for review. In either circumstance the Chief Justice will include the matter on the En Banc Conference agenda for discussion, and may direct the Reporter’s Office to draft a proposed per curiam opinion summarizing the votes of the Justices in a plurality decision for consideration. The decision whether to issue such an opinion will be made on a vote of the Justices.
Now perhaps this is news to you, but the Washington Supreme Court has a set of internal procedural rules, called the Internal Procedures Manual of the Washington State Supreme Court. And you can read the whole thing! Here! Anyway, if you’re interested in learning about the procedural inner workings of the Washington Supreme Court, it’s an interesting read. I imagine most state supreme courts have some set or rules like this. I have no idea how common it is for them to be published.
As far as I can tell, the Washington Supreme Court has cited its own internal rules four times. In Bagby and Schoenhals, the Court uses the per curiam roadmap and cites Rule II-8(B) in support of that procedure. The other two cases, In re Welfare of M.B., 195 Wn.2d 859, 467 P.3d 969 (2020), and In re K.J.B., 187 Wn.2d 592, 387 P.3d 1072 (2017), both reference Rule II-5(A)(3), which states that the Court will internally expediate the resolution of juvenile dependency, parental rights termination, and juvenile offense cases. That’s it. That’s the list.
Anyway, if you are an appellate practitioner and not already familiar with the Court’s internal rules governing its own procedures, I’m sure you’ll be interested in taking a look!