David Corbett PLLC

Key Concepts:  Standard of Review.

"Is this the death-knell for de novo review of bench trials based on purely written records?   Certainly, in the wake of Dolan, appellate courts will have considerably more leeway to do a substantial evidence review of written records.  How they use that leeway might depend on how they interpret the four “factors” identified in the quote above (note—the numbering is not part of the original opinion, and the court did not refer to them as “factors”).  How big does a record have to be to be “enormous”?  Just big enough to discourage the Court of Appeals from conducting de novo review?  If the matter is not resolved on summary judgment, won’t there almost always—and almost by definition--be “evidentiary conflicts” (note that Dolan refers to them as “inevitable”)?  And doesn’t CR 52(a)(1) “mandate” written findings of fact in all bench trials?  After Dolan, the respondent on review of a bench trial will almost always have a strong argument for application of the substantial evidence standard.  Since this standard reduces the work load of the Court of Appeals, it’s an argument that may find a receptive hearing."

Read the entire comment on Dolan here.

Key Concepts:  1) Who controls a state agency's litigation strategy? 2) Mandamus.

"Assuming Goldmark remains good law, what will it mean for appellate practitioners?  For some attorneys litigating against a state agency, Goldmark may help clarify who is really calling the shots for the other side.  According to Justice Stephens,

If we compel the attorney general to file an appeal on the grounds that it is a mandatory, nondiscretionary duty, there is no limiting principle that would allow us to avoid mandamus where the state officers disagree on other steps in litigation.  What if the attorney general wants to settle a lawsuit and the commissioner does not?  What if the commissioner insists on pursuing a claim that the attorney general believes is unwarranted?  . . . . Under the majority’s analysis, the attorney general’s role is reduced to asking “how high” when the state officer he represents says “jump.”

 Goldmark at *11 (¶¶ 36-37).  Prior to Goldmark, it surely made sense to think that who calls the shots for the state in any given litigation matter depended on an array of case-specific circumstances, ranging from the personalities of the responsible AAG and agency personnel, to the extent of specialized agency expertise on the issue in question.  Surely the AAG had more clout in slip and fall cases originating at Husky Stadium than she had in cases involving discipline for faculty members who allegedly committed research misconduct.  Under Goldmark, the balance of power on the state side of the table will shift in favor of the agency representative and against the AAG, along the lines of 'My boss gets the last word on whether we settle, not yours.'  But at least as far as opposing counsel will be able to tell, cases where this sort of dynamic comes into play will probably be few and far between."

Read the entire comment on Goldmark here.

Read the AG's Motion for Reconsideration in Goldmark here.

Key Concepts:  1) Initiating judicial review of administrative decisions.   2) Service by mail, and service on the “attorney of record.”

"Andrew Aprikyan was a research assistant professor at the University of Washington (“UW”).  In 2003, he was accused of engaging in scientific misconduct (falsifying or fabricating research results).  Almost seven years later, after the Dean of the UW School of Medicine and a faculty hearing panel reached conflicting conclusions about his guilt, then-UW President Mark Emmert fired him.    Aprikyan sought to appeal Emmert’s decision to the court system, alleging that the UW had not followed its own rules and procedures in handling his case.  No sooner did Aprikyan file his petition for judicial review, however, than the respondents (various University officials) alleged that the petition should be dismissed because they weren’t properly notified of the suit.

To the layperson, this might seem puzzling or even troubling.  Since the University officials promptly objected to being sued, doesn’t that in itself prove that they knew about the suit?  As a matter of law, however, the person starting a suit has a duty to inform those he is suing, and not just any sort of notice to the other side suffices to satisfy this duty."

Read the entire comment on Aprikyan here.