§18.2 REVIEW OF A DECISION TERMINATING REVIEW-RAP 13.4(B)
Review of a Court of Appeals decision by the Supreme Court is always discretionary. RCW 2.06.030; RAP 13.1(a).
Under prior practice, review by the Supreme Court of a Court of Appeals decision was sometimes available through writs. That procedure has been superseded. RAP 13.1(b). Review of a Court of Appeals decision may not be obtained through extraordinary writs of review, certiorari, mandamus, prohibition, or other writs "formerly considered necessary and proper to the complete exercise of appellate and revisory jurisdiction of the Supreme Court." RAP 13.1(b).
An essential predicate to Supreme Court review, however, is that the judges of the Court of Appeals must have made the decision for which review is sought. RAP 13.3(e). The Supreme Court will not review directly a ruling by a commissioner or clerk of the Court of Appeals. RAP 13.3(e). A party seeking review of such a ruling must file a motion to modify that ruling in the Court of Appeals. See Hough v. Ballard, 108 Wn. App. 272, 277, 31 P.3d 6 (2001). A panel of judges of the Court of Appeals will consider the ruling. RAP 17.7. The panel's decision is then subject to a petition for review or motion for discretionary review.
(1) Time and place to file a petition for review
If no motion for reconsideration or motion to publish is made, a petition for review must be filed within 30 days after the decision terminating review is filed. RAP 13.4(a). A petition for review must be filed within 30 days after an order is entered deciding a timely filed motion for reconsideration or motion to publish.
The petition for review must be filed in the Court of Appeals. RAP 13.4(a). The clerk of the Court of Appeals will send it, along with the record and briefs, to the Supreme Court. However, under RAP 18.23, a petition for review or motion for discretionary review will be considered timely if filed in any division of the Court of Appeals or in the Supreme Court within the 30 days required by RAP 13.4(a) or RAP 13.5(a). In re Bonds, 165 Wn.2d 135, 144 n.5, 196 P.3d 672 (2008) (state's motion for discretionary review timely when filed in Division II, rather than Supreme Court, on 30th day following Court of Appeals decision). If there is a pending motion to reconsider or to publish the opinion, the petition and record will not be forwarded to the Supreme Court until the motion has been decided. RAP 13.4(a).
These time limitations are strictly followed. In Daugert v. Pappas, 104 Wn.2d 254, 256, 704 P.2d 600 (1985), the court held that filing a petition for review one day late, without properly seeking an extension, extinguished all rights to further review. Failure to comply with this deadline will generally result in dismissal. Schaefco Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993); Hoirup v. Empire Airways, Inc., 69 Wn. App. 479, 482, 848 P.2d 1337 (1993).
The time in which a party must file a petition for review or a motion for discretionary review of a decision of the Court of Appeals may be extended pursuant to RAP 18.8(b). As the rule makes clear, extensions are granted "only in extraordinary circumstances and to prevent a gross miscarriage of justice," and the court "will ordinarily hold that the desirability of finality of decisions outweighs the privilege of a litigant to obtain an extension of time under this section." RAP 18.8(b) is an exception to the general rule of liberal construction of the appellate rules under RAP 1.2(a). See RAP 1.2(c). The motion will be denied if the moving party fails to identify any extraordinary circumstances when seeking an extension. State v. Hand, 177 Wn.2d 1015, 308 P.3d 588 (2013); Shumway v. Payne, 136 Wn.2d 383, 394-97, 964 P.2d 349 (1998); Reichelt v. Raymark Indus., Inc., 52 Wn. App. 763, 765, 764 P.2d 653 (1988).
Any motion to extend time limits should be filed in the Supreme Court, where it will be decided. RAP 18.8(b). The motion may be decided by the Supreme Court commissioner or clerk, or may be passed to the department of the Supreme Court slated to consider the petition on the merits, for disposition along with any other motions relating to the petition (e.g., motions to strike, to supplement, etc.) during the departmental conference on the petition.
| Practice
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File your petition on time. Extensions of time on petitions under RAP 18.8(b) are truly rare. |
A motion for reconsideration in the Court of Appeals is not mandatory to obtain Supreme Court review. If a party chooses to file a motion for reconsideration pursuant to RAP 12.4, a timely motion will stay the 30-day period during which the party is normally required to file a petition for review. RAP 13.4(a).
The motion for reconsideration must be filed within 20 days after the filing of the decision terminating review. RAP 12.4(b). When such motion is filed, the court may allow the filing of an amicus curiae memorandum under RAP 12.4(i). The party has 30 days after an order is filed deciding a timely motion for reconsideration of all or any part of that decision in which to file a petition for review to the Supreme Court.
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Motions for reconsideration are rarely granted by the Court of Appeals and should focus on factual errors that can be readily documented in the record or legal errors that similarly can be addressed to the Court of Appeals. Counsel should carefully consider such motions as they may offer the Court of Appeals a fine opportunity to fix the precise legal point on which Supreme Court review might rest. Counsel occasionally file motions for reconsideration to buy additional time to prepare a petition for review. Such practice should be discouraged as it wastes the precious time of the Court of Appeals and its staff. |
A motion to publish a Court of Appeals decision also extends the time for filing a petition for review. A party contemplating seeking review of an unpublished Court of Appeals decision should first consider whether a motion to publish should be made in that court. Nonparties may also seek publication of a Court of Appeals decision. See RAP 12.3(e). Motions to publish are authorized under RAP 12.3(e) and must be brought within 20 days after the opinion is filed. A petition for review must be brought within 30 days after the motion to publish is determined. See RAP 13.4(a). See §16.6 of this deskbook.
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Practice Motions to publish are subject to the criteria in RAP 12.3(e).Counsel should address those criteria in the motion. It is generally understood that the Supreme Court only rarely grants review of unpublished Court of Appeals decisions. But a motion to publish needs to be carefully discussed with the client. An adverse unpublished decision may not be harmful to the client's interests, but a published decision on which the Supreme Court denies review may be the worst of all worlds for the client. Motions to publish from interested third parties often stand a better chance of success in the Court of Appeals. |
(2) Incorrectly designated notice
RAP 13.3(d) provides:
A motion for discretionary review of a decision terminating review will be given the same effect as a petition for review. A petition for review of an interlocutory decision will be given the same effect as a motion for discretionary review.
The failure to correctly label the petition or motion is not fatal. See Fox v. Sunmaster Prods., Inc., 115 Wn.2d 498, 502, 798 P.2d 808 (1990). However, the criteria for acceptance of review for these two types of review differ, making an understanding of which rule applies essential so that the request for review is framed and argued properly. Moreover, petitions for review are filed in the Court of Appeals, but motions for discretionary review are filed in the Supreme...
