In the Matter of the Personal Restraint of EDDIE D. ARNOLD, Petitioner.
NO. 94544-6
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
FEB 15 2018
EN BANC
The Court of Appeals, Division Three, reached a contrary conclusion in part because it felt bound by prior decisions of the two other divisions of the Court of Appeals. In re Pers. Restraint of Arnold, 198 Wn. App. 842, 396 P.3d 375 (2017). Division Three labeled this deference to a prior out-of-division decision a rule of “horizontal stare decisis.” Id. at 846-48. We reject this rule. It conflicts with the statutes establishing the powers and duties of the Court of Appeals and our court; it conflicts with court rules on those topics, it conflicts with prior decisions, and it would tend to diminish the robust, adversarial development of the law that is the gem of our current approach. We therefore reverse.
FACTS
This case involves statutory interpretation of the failure-to-register statute,
On June 27, 1988, Arnold pleaded guilty to a second degree statutory rape committed in 1987 in violation of former
Shortly after Arnold‘s 1988 guilty plea, the legislature repealed that statutory rape statute and the other statutes defining the three degrees of statutory rape in former
Then, in 1990, the legislature enacted
In 2011, Division One decided State v. Taylor, which held that offenders—like Arnold—who were convicted under former
Nevertheless, in 2013, the State charged Arnold with failure to register and first degree trafficking in stolen property. Resp. to Pers. Restraint Pet., Attach, at D-1, E-1. In March 2015, Arnold pleaded guilty to failure to register and second degree trafficking in stolen property. Id. at D-3 to D-8, E-3 to E-8. The trial court accepted the plea agreement and imposed a 51-month sentence on June 4, 2015. Id. at E-9 to E-20.
Two weeks after the sentencing hearing, the Spokane County Sheriff‘s Office sent Arnold a letter informing him that he was relieved of his duty to register as a sex offender because of Taylor. Id. at F-1.
Shortly after receiving the sheriff‘s letter, Arnold timely moved to withdraw his guilty plea under CrR 7.8. Mot. for Withdrawal of Guilty Plea, State v. Arnold, No. 13-1-03641-1 (Spokane County Super. Ct., Wash. Aug. 6, 2015). Arnold stated that he was not required to register and was unaware of Taylor when he pleaded guilty. Id. at 2-3. The trial court transferred the motion to the Court of Appeals for consideration as a personal restraint petition. Order Transferring Case to Court of Appeals, State v. Arnold, No. 13-1-03641-1 (Spokane County Super. Ct., Wash. Jan. 19, 2016).
The Court of Appeals, Division Three, issued its decision on April 25, 2017. 198 Wn. App. 842. That decision by the three-judge panel contained four separate opinions: a majority, a separate concurrence, the majority author‘s concurrence, and a dissent. The opinion, though fractured, held that Arnold did not have a statutory obligation to register as a sex offender. That opinion also articulated a new “horizontal stare decisis” standard, stating, “Regardless of whether Taylor and [In Personal Restraint of] Wheeler2 were incorrectly decided, parting company at this point would create unjustified harm by rendering the applicable law impermissibly vague.” Id. at 848.
ANALYSIS
I. Under the current statutory framework, Arnold is required to register as a sex offender
In 2013, Arnold was charged with failure to register as a sex offender in violation of
Any adult or juvenile residing . . . in this state who has been found to have committed or has been convicted of any sex offense . . . shall register with the county sheriff for the county of the person‘s residence.
(Emphasis added.) The chapter defines “sex offense” in
“Sex offense” means:
(a) Any offense defined as a sex offense by
RCW 9.94A.030 . . .
The cross-referenced former
“Sex offense” means:
(a)(i) A felony that is a violation of
chapter 9A.44 RCW [sex offenses] other thanRCW 9A.44.132 [failure to register as sex offender or kidnapping offender—refusal to provide DNA];. . . .
(v) A felony violation of
RCW 9A.44.132(1) (failure to register) if the person has been convicted of violatingRCW 9A.44.132(1) (failure to register) on at least one prior occasion;3
(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection.
(Emphasis added.)
In 1988, Arnold was charged under former
A. Former RCW 9A.44.080 was in effect before July 1, 1976
The first prerequisite is that the crime of conviction—here, former
(1) A person over sixteen years of age is guilty of statutory rape in the second degree when such person engages in sexual intercourse with another person, not married to the perpetrator, who is eleven years of age or older, but less than fourteen years old.
(2) Statutory rape in the second degree is a class B felony.
Former
A pre-July 1, 1976 statute, former
(1) A person over sixteen years of age is guilty of statutory rape in the second degree when such person engages in sexual intercourse with another person, not married to the perpetrator, who is eleven years of age or older but less than fourteen years old.
(2) Statutory rape in the second degree is a felony, and shall be punished by imprisonment in the state penitentiary for not more than ten years.
There is no debate that the elements of these statutes are the same.5 The 1979 statute under which Arnold was convicted was thus in effect prior to July 1, 1976. Simple recodification of the offense number did not change the statute‘s elements.6
The second prerequisite to classification as a “sex offense” triggering registration requirements in former
Former
(i) A felony that is a violation of
chapter 9A.44 RCW other thanRCW 9A.44.132 ;(ii) A violation of
RCW 9A.64.020 ;(iii) A felony that is a violation of
chapter 9.68A RCW other thanRCW 9.68A.080 ;(iv) A felony that is, under
chapter 9A.28 RCW , a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes; or(v) A felony violation of
RCW 9A.44.132(1) (failure to register) if the person has been convicted of violatingRCW 9A.44.132(1) (failure to register) on at least one prior occasion.
Despite differences in language, the elements of Arnold‘s 1988 conviction are the same as, or encompass, one or more of the following
Indeed, Arnold does not argue to the contrary. He seems to concede that former
C. Contrary to the holdings in Taylor and Wheeler, the “repeal” of former RCW 9A.44.080 (1979) does not change the analysis required by former RCW 9.94.030(46) (b) (2012)
The Court of Appeals in Taylor read the comparability requirement differently. It read former
Four years later, the court in Wheeler agreed with that interpretation. 188 Wn. App. 613. It ruled that former
We disagree. The Taylor and Wheeler courts seem to collapse the question of whether the defendant was convicted of violating a pre-July 1, 1976 statute with the question of whether the defendant was convicted of something comparable to a current
For example, State v. Stockwell compared former
The sex offender registration statute,
II. One division of the Court of Appeals should give respectful consideration to decisions of another division, but should not apply stare decisis to that prior decision
The members of the Division Three panel deciding this case did not all disagree with this approach. But they declared that they were bound by decisions of other divisions of the Court of Appeals to the contrary. The lead opinion in Arnold declined to “upend settled expectations throughout the state by rejecting” prior decisions of Divisions One and Two, and therefore followed the reasoning presented in Division One‘s Taylor, 162 Wn. App. 791, and Division Two‘s Wheeler, 188 Wn. App. 613. 198 Wn. App. at 849. Three of the four Arnold opinions call this required deference “horizontal stare decisis.”
Each opinion provides a different description of “horizontal stare decisis.” The majority refers to “horizontal stare decisis” but states, “[W]e are not prepared to resolve the question of exactly how stare decisis applies in the current context, involving decisions issued by other divisions.” Arnold, 198 Wn. App. at 847-48. Without deciding the contours of this new rule, the majority concludes that the harm created by disagreeing with Taylor and Wheeler would be too great. Id. The first concurrence does not mention “horizontal stare decisis,” and instead states, “When it comes to whether our Supreme Court‘s ‘incorrect and harmful’ standard applies in this court, I agree with the reasoning of Grisby v. Herzog9 that it does not.” Id. at 850 (Siddoway, J., concurring). The second concurrence goes into much greater detail about “horizontal stare decisis,” concluding that the divisions of the Court of Appeals should “follow the Supreme Court‘s lead in recognizing the importance of both the ‘incorrect’ and ‘harmful’ prongs of stare decisis.” Id. at 853-54 (Pennell, J. concurring). The dissent‘s author “accepts the majority‘s [horizontal stare decisis]
We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals. Statutes, court rules, prior case law of the Court of Appeals, and prior decisions of this court all compel a contrary conclusion.
First, the Court of Appeals exists within a framework defined by both
[C]ases involving substantive issues on which there is a direct conflict among prevailing decisions of panels of the court [of appeals] or
between decisions of the supreme court . . . shall be appealed directly to the supreme court.
Our court rules say the same thing. Both RAP 4.210 and 13.411 address the process of obtaining review by this court. They explicitly state this court has a duty
Washington court decisions follow this statute and those court rules. We recognize when there are conflicts in the Court of Appeals. We resolve them by granting review, not by telling the later panel to adhere to a decision of an earlier panel. See, e.g., State v. Weatherwax, 188 Wn.2d 139, 143, 392 P.3d 1054 (2017) (“This lack of statutory guidance has produced a conflict in the Court of Appeals.“); State v. Larson, 184 Wn.2d 843, 847, 365 P.3d 740 (2015) (“We accepted review to resolve this conflict within the Court of Appeals between Division One and Division Two . . . .“); State v. Jones, 172 Wn.2d 236, 239, 257 P.3d 616 (2011) (“We affirm the decision of Division Two . . . and disavow Division Three‘s holding.“).
Although Division Three‘s decision relies largely on cases from this court, none of them discusses the relationship between the divisions of the Court of Appeals.12 Instead, they address the role of stare decisis in this court. Specifically, the Court of Appeals’ opinion cites to our statement in In re Rights to Waters of Stranger Creek that stare decisis requires a “clear showing that an established rule is incorrect and harmful before it is abandoned.” 77 Wn.2d 649, 653, 466 P.2d 508 (1970). But that discussion in Stranger Creek was about overturning the precedent established by a prior Supreme Court case—not a split in the Court of Appeals divisions.
Previous Court of Appeals decisions have come to the same conclusion. In Grisby, that court held, “The various panels of the Court of Appeals strive not to be in conflict with each other because, like all courts, we respect the doctrine of stare decisis.” 190 Wn. App. at 807. But while endorsing the value of consistency, the Court of Appeals—even in Grisby—has still ruled that prior Court of Appeals decisions constitute persuasive, not binding, authority on other divisions of the Court of Appeals. See, e.g., McClarty v. Totem Elec., 119 Wn. App. 453, 469 n.8, 81 P.3d 901 (2003) (noting that while a decision from Division One was not binding authority, it “can still be persuasive“), rev‘d on other grounds, 157 Wn.2d 214, 137 P.3d 844 (2006). Grisby itself continued its analysis to state,
Where “the decision of the Court of Appeals is in conflict with another decision of the Court of Appeals,” a basis exists for a petition for discretionary review by the Supreme Court. RAP 13.4(b)(2). If the most recent Court of Appeals opinion overruled conflicting Court of Appeals decisions and replaced them as binding precedent and controlling authority, no decisions would be in conflict and RAP 13.4(b)(2) would no longer serve any purpose as a basis for discretionary review. The Supreme Court settles the law when Court of Appeals decisions are in
conflict. It follows that two inconsistent opinions of the Court of Appeals may exist at the same time.
190 Wn. App. at 809 (footnote omitted).
In fact, “horizontal stare decisis” is not discussed in Washington cases before Arnold. The decisions discussing that theory were issued after the Arnold decision and all rejected that theory. State v. Dennis, 200 Wn. App. 654, 658 n.2, 402 P.3d 943 (2017) (“Dennis cites . . . Arnold . . . for its holding that we are bound by horizontal stare decisis to the decisions of our sister divisions. We respectfully disagree that Payseno [v. Kitsap County, 186 Wn. App. 465, 346 P.3d 784 (2015)] dictates our holding in this case. Grisby . . . , 190 Wn. App. [at] 808-11 . . . (The doctrine of stare decisis does not preclude one panel from the court of appeals from stating a holding that is inconsistent with another panel within the same division.“)); State v. Vazquez, 200 Wn. App. 220, 226 n.4, 402 P.3d 276 (2017) (“Our precedents do not provide an agreed stare decisis analysis that governs requests to revisit prior appellate court decisions.“); Swanson Hay Co. v. Emp‘t Sec. Dep‘t, 1 Wn. App. 2d 174, 209, 404 P.3d 517 (2017) (“As for the issue of whether we are required to apply the doctrine of stare decisis and our Supreme Court‘s ‘incorrect and harmful’ standard before disagreeing with Division One, there is room for debate on that issue. . . . This author has concluded that we are not.“); Worthington v. WestNET, No. 48590-7-II, slip op. at 28 n.8 (Wash. Ct. App. Sept. 19, 2017) (unpublished),
As the amicus brief from the Washington Appellate Lawyers Association (WALA) explains, the divisions of the Court of Appeals have traditionally treated decisions from other divisions as persuasive rather than binding because it allows for “rigorous debate” and “improves the quality of appellate advocacy and the quality of judicial decision making.” Amicus Curiae Br. of WALA at 5-6.
This is not to imply that the appellate court‘s concern with uniformity is misplaced. The United States Circuit Courts of Appeals deal with similar issues of consistency—both intracircuit and intercircuit conflicts—and have generally determined that one panel of a United States Circuit Court of Appeals should not be in conflict with another within that same circuit.13 However, this procedural
To be sure, this approach can lead to conflicting decisions. For example, a single statewide agency can face conflicting obligations in different divisions. This court addressed a similar issue in In re Personal Restraint of Smith, 139 Wn.2d 199, 986 P.2d 131 (1999). In Smith, we interpreted a statute addressing how to calculate a convicted prisoner‘s earned early release time. A single, prior Division Three opinion had addressed the same issue and ruled against the Department of Corrections (DOC). DOC followed that decision in that individual Division Three case—but declined to change its statewide policy. Our court criticized DOC for that decision, holding that DOC should have followed that prior Division Three opinion partly because there were no other published Washington appellate court decisions that addressed those circumstances. Id. at 203 n.3. Statewide agencies and other entities cannot choose to ignore a published judicial decision. We recognize that the reality of conflicting decisions will create some confusion. However, our current system of rigorous debate at the intermediate appellate level creates the best structure for the development of Washington common law.
We therefore reverse.
GORDON McCLOUD, J.
WE CONCUR:
FAIRHURST, C.J.
JOHNSON, J.
MADSEN, J.
OWENS, J.
STEPHENS, J.
WIGGINS, J.
GONZÁLEZ, J.
YU, J.
Notes
(a) Type of Cases Reviewed Directly. A party may seek review in the Supreme Court of a decision of a superior court which is subject to review as provided in Title 2 only in the following types of cases:
. . . .
(3) Conflicting Decisions. A case involving an issue in which there is a conflict among decisions of the Court of Appeals or an inconsistency in decisions of the Supreme Court.
(b) Considerations Governing Acceptance of Review. A petition for review will be accepted by the Supreme Court only:
. . . .
(2) If the decision of the Court of Appeals is in conflict with a published decision of the Court of Appeals.