*2 Before DIARMUID F. O’SCANNLAIN, BARRY SILVERMAN, G. and RONALD GOULD, M. Judges. Circuit O’SCANNLAIN, Judge. Circuit Rarely probate does a matter find its way into federal court. Here we pre- are sented with a will contest involving a mem- ber of an Indian tribe in Department of probate proceeding where we must decide whether state or federal law of evidence applies.
I
Matilda Covington, a
Indian,1
Colville
Barton,
Katherine J.
Environmental and
July
died on
1999.
July 9, 1999,
On
Natural
Division,
Resources
United States
shortly
death,
before her
Covington exe-
Department
Justice,
of
D.C.,
Washington,
cuted a will leaving all her Indian trust
argued the cause for
the appellants.
allotments to her great-grandson, Brandon
Thomas L. Sansonetti and William H.
Francis,
Austin
a minor.2 Covington’s
Beatty, Assistant United
Attorneys,
States
children predeceased her and she left no
and John
Bryson,
A.
Department of Jus-
property to her three
grandchildren.
living
tice, were on the briefs.
The will listed one of Covington’s grand-
1. In
opinion,
we use the
Cir.1994).
term ''Indian.”
Generally, "upon the
of
death
Though the term ''Native American” is fre
owner,
Indian allotment
the decedent's inter-
quently preferred, "the statutes
opinions
est
passes
...
to his or her Indian heirs or
Indian,
use
examine
the term
was
which
devisees.”
16.03[4][c],
Federal
Indian Law
appropriate
long ago.”
word not so
Da
However,
p. 1052.
"with
approv-
secretarial
wavendewa v. Salt River Project Agric. Im
al, Indian allotment
may relinquish
owners
provement
Dist.,
& Power
154 F.3d
allotted
trust,
land to their close relatives in
(9th Cir.1998).
n. 1
long
so
recipient
as the
qualified
is an Indian
to own
Thus,
property.”
restricted
A trust
Id.
parcel
allotment is
"a
of land owned
Department
by the
United
States in
trust for
determines the
an Indian.”
disposition
Cohen's
properties
Handbook
trust
Federal Indian
when
Law
the Indi-
16.03[1],
(Nell
p.
an dies.
Jessup
§§
25 U.S.C.
Newton et al.
373. See also
eds., 2005) ("Federal
”).
Jr.,
Indian
William Canby,
Law
C.
See also
American Indian Law
United States ex Moronga
rel.
(4th ed.2004)
Band
Mission
(describing
Indian trust
Rose,
Indians v.
34 F.3d
906 n. 2
role).
lands and Interior’s
com-
Francis&emdash;the
privileged
were
mother
children, Jolene
Francis&emdash;as
munications, confidential,
protected
the dece-
Austin
Brandon
Francis,
person-
pur-
Jolene
product.
representative
work
personal
dent’s
estate, re-
Covington’s
Jolene
representative
the estate.
administering
al
poses
contingent bene-
privilege.
listed as
is also
waive
*3
fused
Francis
attor-
Staff
property.
trust
for the
ficiary
claim of
rejected Edmonds’s
The ALJ
Ser-
Legal
Tribal
the Colville
from
neys
produce
to
him
and directed
Covington
(“CTLS”) assisted
vices
thereafter,
Shortly
materials.
relevant
drafting her will.
quash
to
motion
filed a
Edmonds
grandchildren&emdash;De-
Covington’s
Two of
of
Eastern District
in the
subpoena
Francis&emdash;contest-
Robert
bra Palmer
granted
court
district
The
Washington.3
lacked testa-
she
that
will
ed her
alleging
that
grounds
on the
quash
to
the motion
to
was
mentary capacity
subjected;
protected
,
of
Department
influence. The
undue
materials.
Hearings
(“Interior”)
Office
Interior’s
timely appeals.
Interior
(“OHA”)
contests
hears will
Appeals
su-
See
allotments.
trust
involving Indian
II
testimony
hearing,
At the third
2.
pra n.
that under
contends
Interior
cast
and witnesses
will scrivener
by the
admit evidence
regulations,
Fur-
mind.
state
Covington’s
on
doubt
comport with
evidentia-
that
testified
Covington’s relatives
ther,
two
ry rules.4
recognize or
unable
she was
that
she
days
before'
them
with
speak
A
will.
executed
matter,
must
threshold
aAs
re-
hearings
probate
Testimony at
inter
its
that
assertion
address
prepared
had
Covington
vealed
is due
regulations
own
of its
pretation
attorney
aid her
worksheet
handwritten
correct
is indeed
deference.
Palmer
Debra
new will.
drafting the
regu
of its own
interpretation
agency’s
subpoena
sought a
Francis
and Robert
to deference.
entitled
generally
lations is
preparation
to the
related
all materials
452,
Robbins, 519 U.S.
See,
Auer v.
e.g.,
they
hoping
will, presumably
(1997);
905,
L.Ed.2d 79
461, 117 S.Ct.
mental
Covington’s
on
light
shed
Mts.
Wilderness
League
Defenders/Blue
Judge
Law
Administrative
OHA
state.
309 F.3d
Forsgren,
v.
Project
Biodiversity
oversaw
(“ALJ”)
Hammett
William
Cir.2002) (“An agency’s
(9th
1181, 1183
subpoena
issued
will and
of the
probate
is en
regulations
own
of its
Edmonds&emdash;director
to James
tecum
duces
erro
plainly
it
unless
to deference
titled
cop-
produce
him to
CTLS&emdash;compelling
regula
or inconsistent'
neous
prepa-
relating to
all documents
ies of
due
may be
tion[.]”).
Though
aat
appear
the will and
ration
“Con
reminded
deference, we are
refused
hearing. Edmonds
administrative
delegated
has
documents, claiming
gress
turn over
F.3d
Californian, 128
v.
NLRB
4.230(b) designates the district
Bakersfield
43 C.F.R.
1997);
Montana
(9th
v.
Reich
Cir.
the enforce-
proper forum for
as the
court
Co.,
32 F.3d
ALJ.
an OHA
Chem.
Sulphur
issued
&
subpoena
aof
ment
1994).
Cir.
ad-
quash an
decision
court's
district
4. A
de novo.
subpoena is reviewed
ministrative
official and not to appellate
counsel the re-
Interested parties may offer at a
sponsibility for elaborating and enforcing
formal hearing such relevant evidence as
statutory commands.” Investment Com-
appropriate
deem
gener-
under the
pany Institute v. Camp,
617, 628,
401 U.S.
ally accepted rules of evidence of the
(1971).
S.Ct.
The relevant OHA (a) regulation on form An interested party may make a and admissibility of evidence states: written demand to produce documents argues 5. CTLS interpretations tation, protects because it the Indian-testa- are not entitled to deference because the Inte- tor’s Interior, confidential communications. Department rior however, functions as a trustee for contends that it needs broad author- Norton, Indians. See v. Cobell ity F.3d to admit evidence dispose order (D.C.Cir.2001) (noting that "the Secre- trust effectively lands and in accordance with tary escape cannot his role as trustee by don- Thus, the Indian-testator’s any duty wishes. ning mantle administrator to claim that fairly just to deal easily as favor Interi- courts must expertise defer to his delegat- and or's as par- CTLS’s. With both authority" (internal ed quotations omitted)). claiming ties approach that their benefits In- However, duty even if a fairly to deal parties dians—and both having plausible applies, Indians it is not clear who benefits. claims to say such—we duty cannot that a argues CTLS duty that the interpre- favors its fairly deal way would cut one or another. right, as a matter may offer ties photo- or copying inspection for (b) allow that subsections demand: This graphing. of federal on the basis documents, evidence to admit (4) any May demand ... or letters, records, law. photographs, common papers, things that are: tangible other issues;
(i) to the Relevant custodian’s or (ii) party’s the other only provision is the Subsection control; and or custody, possession, or that mentions regulation either (iii) ... privileged. Not “may parties law, noting that the federal motion, ad- (c) own his or her On as deem evidence ... relevant offer probate judge or Indian ministrative accepted generally appropriate inter- order may issue judge in which of the State of evidence rules records or custodian party ested 4.232(a). 43 C.F.R. taken.” is informa- material the production supports regulation plain text issues and relevant tion the evidence interpretation: CTLS’s ... privileged. by state offer is determined parties added). (emphasis § 4.220 43 C.F.R. As to substantive law, law. federal *5 lacks au- 4.220, § under While surrounding proffered evidentiary issues materials, privileged subpoena thority to Covington’s whether as evidence—such whether specify not regulation the attorney are her with communications applies. law privilege state or federal (or, conversely whether privileged evidentiary if federal that agree parties evidence) as offered may be —subsection § 4.220 proceedings, to these applies (a) as relevant au- law the identifies Covington’s admission of the not bar thority. is question the first Obviously, notes.6 or state adopts federal § 4.232 whether 2 Second, must deter- we evidentiary rules. subsec- remains where question the But has in- source the relevant mine whether regulato- (a) the part of overall fits as tion testamentary exception corporated v. U.S. Unidos Campesinos ry scheme. privilege. attorney-client 1063, Labor, 1069 F.2d 803 Dep’t of (“Our interpret Cir.1986) is to task C the over- whole, in light aas regulation federal law? state or adopt § 4.232 Does scheme, and regulatory statutory all (a) applies subsection that contends CTLS in iso- phrase to one give force not to in which of the state evidentiary rules also fits lation.”). CTLS’s Interior, on is introduced. evidence regulation. the whole the structure hand, subsection contends the other (a) as the adopts state law If par- subsection (a) evidence what determines only ed., 1961) (J. 2292, McNaughten p. § 555 exception to the attor- testamentary If the Rule of Evi- Uniform respect to (noting, with materials applies, privilege ney-client ... 26, extend “shall not privilege dence privileged. not both admissible be would See, be- to an issue 406, relevant 394, Patten, to a communication 165 U.S. e.g., Glover v. through claiming a deceased parties tween” 411, (1897) (noting, a 760 41 L.Ed. 17 S.Ct. Therefore, added)). if will, (emphasis client under between devisees suit exception to the testamentary counsel the deceased made "statements 43 C.F.R. the limitation will, applies, or other of the respecting the execution ” subpoena of the bar (em- § would not 4.220 documents, privileged not are similar documents. added)); Evidence Wigmore on phasis evidentiary relevant law for cept substantive narrow exceptions provided questions, (b) then subsection we dis- for in the other subsections. —as cuss further below—frees the ALJ from “generally strictures of accepted rules evidence” order to allow different forms and to retain a relaxed (b) Subsection states “may
procedure. Though agree with Interi- admit thereof, letters copies affidavits, (a) or that subsection does not necessarily or other evidence ordinarily not admissible set a limit as to may what evidence come under the generally accepted rules of evi- (b) in—subsections expand 4.232(b). § dence. ...” Interior argues clearly universe —subsection sets (b) that subsection allows the ALJ to ad- the baseline. mit evidence in accordance with federal law, meaning 4.220 would The text of plain; 4.232 is we need not longer no prohibit the admission of the defer to the agency’s interpretation of sub- materials. (a). Indeed, section interpreta- tion supported even by its own The term “other evidence ordinarily (“IBIA”) Interior Board of Indian Appeals’ is a general admissible” following term case law. Specifically, Estate Charles specific examples, so we must interpret it Hall, Sr., (Mar. 53, 8 IBIA 1980), with reference to the preceding list accord- concluded 4.232 “adopts the rules of ing to ejusdem generis canon of con- evidence of the state where hearings See, e.g., struction. City Circuit Stores v. are held.” Similarly, in Estate Eliza- Adams, 532 U.S. 114-115, 121 S.Ct. Green, beth Frank 3 IBIA (Sept. (2001) ‘[Wjhere (“ L.Ed.2d 234 *6 19, 1974), the IBIA concluded that general words specific follow words in a 4.232(a) provides the rules for “submit- enumeration, statutory general the words ting and receiving evidence in pro- Indian are construed to only objects embrace sim- bate proceedings.” We think it clear from ilar in nature to objects those enumerated these cases that IBIA the decisional law by ”) the preceding specific (quot- words.’ (a), construes subsection and gen- 4.232 ing 2A N. Singer, Sutherland on Statutes erally, as having selected state evidentiary and Statutory Construction 47.17 law as the law relevant for proceed- the (1991)). Under this reading, “or other evi- ings. dence ...” must refer to other evidence similar to “letters copies or thereof’ and
D “affidavits.” Given terms, the preceding Interior (b) contends that subsections the provision catch-all is limited to form give the ALJ authority broad to and related presentation issues of (e.g., admit evidence that would not be allowed whether the evidence is properly authenti- rules, under state but would cated, be allowed presented whether it is hearsay, as under federal rules. CTLS etc.), contends that rather than questions of substance the ALJ remains bound state law ex- (e.g., extends).7 whether argues (b) CTLS also that if offer, subsection parties evidence may the while subsec- any read broadly more example, so (b) tion deals —for with evidence that ALJ it allows the ALJ any admit to evidence—then (a). However, Thus, accept. (b) even if subsection is read it would swallow subsection broadly, (a) different, subsection still has a ignores another distinction between the logical function. provisions. two Subsection deals with Williams, a Joseph (b), Alexander Estate of subsection sentence The second present ill travel and too was witness reinforces explain, Interior which it The IBIA concluded testimony. at- to be weight “The this conclusion: to consider for the ALJ acceptable was any par- presented evidence tached to affidavit, though testimony by the witness’s discretion of is within form, ticular al not have would state rules applicable add- (emphasis judge” law administrative delivered testimony to be lowed is, may admit evidence ed). the ALJ That IBIA ex As at 135. 6 IBIA such form. forms, but because variety of in a adopts rules CFR 4.232 plained, “43 free ALJ is suspect, the may be evidence hearings where the state cor- evidence weight. Were its to discount proce relaxed held, permits but (b) are broadly authorizes that subsection rect Hall, at 8 IBIA Estate Charles so dure.” he admit evidence the ALJ added). Estate See also (emphasis “form” in chooses, reference 291, 299 Oskolkoff,37 IBIA Larry Michael inappropriate. be would sentence second (b) 2002) (June 24, that subsection (noting of subsection interpretation in deter discretion “some gives broadly to ALJ (b) it allows —that be con kinds of evidence will mining what ordinarily admissi- “admit evidence sidered”). the form go to These cases examples prefatory ble”—excises evidence, none allow of the subsec- sentence second ignores substance —rather whose evidence admit interpreta- adopt such decline to tion. We be presentation its manner than —would (b) aas Rather, subsection we read tion. law. by state prohibited ignore toALJ such, allows the whole; it as of sub- interpretation of its support requirements and evidentiary technical is a (b), argues “[i]t section types, in various forms admit evi- that federal principle established well different stan- adopt may not but the ALJ in fed- proceedings dentiary govern rules ques- evidentiary substantive dards provides federal where eral court are communications tions, as whether such Rule of Evi- Federal of decision.” rule matter of law. privileged as however, federal states dence fits with also Such “otherwise unless apply will common law example, hear For case law. IBIA prior 501. Here Fed.R.Evid. provided.” ... *7 under may not be admissible say evidence evi- adopt state specifically regulations can rules, evidentiary but state Further, given dentiary rules. subsection under such evidence admit still § 4.232 as interpreted has previously IBIA 5 Humpy, Harold (b). See, e.g., Estate of rules, liti- evidentiary adopting state 1976) (June 18, (approving 132, 136 IBIA Interior by proffered position gating 4.232(b) hear to admit use of ALJ’s law common that federal advocating now— admissible not be testimony that say any deference. not entitled applies—is Jo Alexander law); Estate of (b) the rel expresses sum, subsection 2, In 132, (Aug. 135 Williams, 6 IBIA seph that ad proposition atively uncontroversial testimony 1977) the use (approving not cleave need proceedings ministrative prevent health a witness’s where affidavit See, e.g., evidentiary rules. to strict state though state even appearance, a live ed Wage Adm’r Mills v. Cotton testimony Opp allow not evidentiary law would 126, Labor, U.S. 312 of Dep’t Div. Hour form); Guo-La Estate a/k/a in this (1941) 624 524, L.Ed. 155, 85 28, 61 S.Ct. 181, (Aug. Jones, 186 IBIA7 Thomas rules, ap evidentiary technical (noting that ad 1979) applicable to not (hearsay rule apply trials, “do jury plicable example, For proceedings). ministrative proceedings before federal administrative pretation is not supported by the text of agencies in the of a statutory absence regulation, re- which does not distinguish quirement that such rules are to be ob- between proceedings involving wills and served”)- This interpretation also fits other proceedings. Such interpretation regulatory within the scheme: subsection would not Auer, be entitled to deference. (b) gives the ALJ somewhat broader au- 461,117 519 U.S. at S.Ct. 905. evidence, thority admit but does not
jettison the selection of state substantive
(a).
evinced
subsection
Subsection
Finally,
argues
that subsection
(b)
go
does not
further to adopt federal
(d) gives the ALJ
authority
broad
to “re-
common law or give the ALJ broad au- quire
addition to that offered
Further,
thority.
while there are many
by the parties.”
Interior contends that
IBIA
(b)
relying
decisions
on subsection
(d)
subsection
allows ALJ
any
to admit
admit evidence whose form or presentation
evidence admissible under federal law.
does not comport
law,
with state
First, we note that nowhere does
point
cannot
IBIA decision that
(d)
subsection
explicitly adopt federal law.
extends to the ALJ authority to circum-
contrast,
subsection
explicitly adopts
vent evidentiary
questions
rules on
of sub-
state law as the baseline for admissibility.
stance.
Further, were we
adopt
Interior’s inter
pretation of
(d),
subsection
provision
(b).
would swallow subsection
is,
That
if
Interior also notes that “[t]he De
(d)
subsection
broadly authorizes the ALJ
partment has consistently held that
to “require” any evidence admissible under
execution and
aof will dis
law,
federal
then
priori
the ALJ can
posing of trust or restricted property are
admit evidence that is otherwise inadmissi
questions
Federal,
state,
law.” Es
ble under state law. Such result should be
tate
Chase,
Florence Night
38 IBIA
avoided: “When interpreting a regulation,
(Nov.
2002)
(citations
omitted); see
we must avoid an interpretation that would
also Estate
Green,
Elizabeth Frank
render another
regulation superfluous.”
IBIA
19, 1974) (“The
120 (Sept.
De
United States v. Alisal Water Corp., 427
partment
long
has
adhered to the rule that
F.3d
Cir.2005) (citation
omit
state laws have
application
no
in Indian
ted).
(b)
Subsection
carefully allows the
probate
trust
proceedings
involving
ALJ authority to compel materials of a
wills.”). However, this line of cases stands
different form or presentation, but does
only for the proposition that federal law
not allow the abrogation of substantive
supplies the standards for determining val
state evidentiary law.
Interior’s reading
id execution and proper interpretation of
of subsection
undermines this balance
wills. These
do
cases
not support Interi-
*8
by
reading subsection
in isolation: The
position
or’s
that federal evidentiary law
“may
ALJ
in any
require
case
in
evidence
applies to questions of privilege as well.
addition to that
by
offered
the interested
Indeed, the same cases which note the role
parties.” However, this reading impermis-
of federal law
explain
also
that state evi-
sibly “give[s] force to
phrase
one
in iso
dentiary
applies. See,
Green,
e.g.,
3
lation,” rather than considering the entire
IBIA
4.232(a)
at 119 (noting
§
that
pro
statutory scheme.
Unidos,
Campesinos
vides for “submitting and receiving evi
rior’s position, proffered Interior’s inter- conclude, is that it grants the ALJ authori-
925 Metcalf, 14 client); v. Wash. State ney and admis- otherwise additional “require” ty to (1975) (advice 459, 461 232, 540 P.2d App. presented that beyond evidence sible or fraud not of crime in furtherance sought ALJ sits argued, the has As him. Aronson, H. Robert also see privileged); delegate of the aas proceedings in OHA Washington in Evidence Law The role&emdash;as compared to Secretary. In (2004) (describing six § 501.03[2][h][i]-[vi] can ALJ judge&emdash;the trial typical a that of attorney- to the exceptions recognized wit- testimony of additional the compel Washington). in privilege client documenta- require additional and nesses Washington no agree that parties The parties. the beyond proffered tion testamentary the adopted (yet) has case ALJ can that the not mean does But this recognized in though it has been exception, in subsec- out set the scheme circumvent years. Edward over courts 150 other (b). case law no IBIA Again, tions Imwinkelried, Wigmore: A The New J. which, interpretation, supports (not- (2002) § 6.13.2 on Treatise Evidence regu- the event, is inconsistent recognized English courts first ing that subsec- render it would text because latory v. Jack- exception Russell testamentary (b) vestigial. tion (V.C.1851)). The son, 558 Eng. Rep. 68 Nier, cases, Points v. two parties point Ill (1916), Cum- 20, P. 44 91 157 Wash. regulation requires If the 88, Sherman, 132 16 Wash.2d mings v. laws, evidentiary Inte to follow (1943), discuss the which both P.2d 998 state law Washington argues that rior death after attorney-client excep testamentary recognize would are material to these cases client. While a privilege.8 attorney-client to the tion Washington Su- determining whether alternative, argues testamentary adopt Court would preme for certification appropriate is question required inquiry not the is exception, that CTLS Court. Washington Rather, regulations 4.232(a). under testamentary exception argues that whether the to determine require only us law. Washington not exist attorney- to the testamentary exception statutorily de have accepted.” states “generally some While is client single exceptions provided fined parties have Supreme Court Washington recognizing statute privilege,9 Washington case con- endorsed therefore we testamentary exception; identified repeatedly has exception is testamentary privilege. exceptions clude judge-made Washington, accepted” Holloway, “generally 114 Wash.2d not See, Pappas v. e.g., that it likelihood (advice or the (1990) its merits 30, not whatever 34 787 P.2d future.10 in the adopted be would attor- between litigation during privileged Rev.Code pursuant to Wash. inter 10.Certification court’s the district novo review de 8. We inappropriate. In- also be College 2.60.030 would Regina v. state law. Salve pretation of implicitly concede deed, certification Russell, S.Ct. 499 U.S. accepted” law. "generally is no Corp. v. there (1991); Motors General L.Ed.2d anal- our 1993). conclusion made have Cir. Once Doupnik, F.3d end, is inadmis- and the at an ysis is Furthermore, is what the issue ("There sible. See, no e.g., Cal. Evid.Code *9 this eviden- when done faced should have as to communi- this article privilege under proceeding OHA tiary ALJ in issue. An parties all between an issue cation relevant questions under certify authority client.”); lacks through a deceased of whom claim Wash. Rev.Code Washington law. See 503(c)(3) (same). of Evidence Rule Hawaii contrast, In it is clear that under Wash- the discovery this, shows nothing of then it law, ington the attorney-client privilege is benignly clears the litigation cloud this “generally accepted.” See Wash. Rev. otherwise mar the great-grand- 5.60.060(2)(a). § Code Pursuant to the child’s inheritance. standard attorney-client rules of privilege, Probably since before the onset of re- Covington’s resort attorney’s notes is history, corded there have been occasions “appropriate the generally ac- aged where the and mentally infirm have cepted rules of evidence Washington. of’ been unduly influenced in disposition of “generally Because no accepted” testamen- their assets before died. The federal tary exception applies, Covington’s notes common law and the law of states that are inadmissible. have addressed this by issue statute make AFFIRMED. a testamentary exception to the otherwise applicable attorney-client privilege, and GOULD, Judge, Circuit dissenting: permit thus discovery about a testator’s Although I agree with the majority’s communications with her attorney in the framework for interpreting the Depart- act of revising a will. The Supreme Court ment of governing regulation in of the State of Washington has previously II, Part disagree I with the majority’s adopted exceptions to statutory attor- analysis III, in Part which for me is the ney-client privilege, and I believe that if it crux III, of the case. Part the majority reached presented issue by holds that no Washington because case or case, this the Washington Supreme State statute has adopted the testamentary ex- Court would probably recognize a testa- ception to attorney-client privilege, the mentary exception as a limit on scope exception is not a “generally accepted” of attorney-client privilege. rule of required evidence as by 43 C.F.R. 4.232(a). Given this setting, The and the majority demands of then concludes justice, general permissible two courses are attorney-client privilege, this case, set regret forth and I Wash. neither by is taken Rev.Code 5.60.060(2)(a), majority. First, is a “generally accepted” addressing the needs of rule of prevents evidence that us, the case disclosure I before certify would the subpoenaed documents. Washington State Supreme Court for its binding decision the question whether at-
The discovery of these documents is not torney-client privilege under Washington merely technical, nor is an error on the law bars the discovery that was sought in scope of attorney-client privilege here like- case, this ifor ly conversely there harmless. testa- goes justice It between mentary exception parties, quashed as the discovery might light permit have would shed on the discovery whether a testa- proceed.1 tor who in age old cut grandchildren majority her dismisses certifi- out of her cation in will left everything its footnote noting to a the federal single great-grandchild may regulation’s have been of command only to follow “gen- unsound unduly mind erally influenced in accepted” law, within the revision of her will. hand, On other if meaning 4.232(a), of 43 C.F.R. because Thus, § 2.60.010. was bound Washington law is clearly not now deter- then-extant generally-accepted mined, state law. provide benefits for the bench and bar the State Washington in other 1. The Washington State Court's cases as well. issue, clarifying law on its on which *10 on which issue juristic philosophical haps a we can how not see does majority the differ, but consid- judges reasonable “clearly de- not law” is “local certify that for consequences the real world ering of Wash. meaning the within termined” and Covington’s will challenge 2.60.020, interpret who as we those Rev.Code accept beneficiary, I do not state accepted” purported the any “generally whether discovery. The ma- that the Wash- majority’s the conclusion bars the law privilege generally this certification is attorney-client privilege in its view ington errs jority Supreme State to case Washington applied this If the law as accepted state statute. a certified accept to setting. not wish testamentary does Court in its Washington Yet pass. it will question, acceptance certification Absent for Court, eye its keen Supreme State there issue, consider whether I would to address may wish justice, discerning rule of evidence accepted” “generally ais testamentary whether the issue directly governs law that Washington discovery requested permits exception an between discovery of communications persons estate may impact an at- and her testator allegedly incompetent It is not Washington. the State within at- on the state statute torney. Because law has certify that local to impermissible does not address privilege torney-client determined, as we inter- clearly not been see Wash. situation, Rev.Code this a rule apply had to ALJ whether pret Washing- 5.60.060(2)(a), and because is- preclude privilege attorney-client Washington legislature ton State testator’s subpoena of the suance on spoken have Court State it contrary, is lawyer. To Washington reasonably matter, should precise law with- Washington apply ill-advised “gen- applicable is no that there conclude permitting exception before an out such evidence, and rule of erally accepted” in and step court highest the state’s was of Interior’s Department thus the us.2 matter for decide law common the federal apply free way assess this Second, there is setting exception in recognizing recog- It is to certification. without case privilege. attorney-client sensibly conclude one cannot nize dissent. I grounds, respectfully these On is clear- the law testamentary ato applied as ly established Washington State Su-
setting when ruled, way or one has never Court
preme a testamen- other, there is on whether appli- privilege. exception to the
tary of both consideration requires of law
cation genuine- The latter exception.
rule and on is undecided when state
ly at issue testamentary exception. is a there
whether cannot rule of law general
A accepted generally be
correctly be said to per- This is setting. testamentary
in the ability to our detract from fact urges footnote 10 majority in its 2. The Washington question certify key proceeding could not in the OHA law; decision. Supreme Court’s State Washington but certify questions under