What happened? Where do Citizens go from here?
Consider this an open invitation for dialog and brainstorming. After considerable thought, here’s my verbose take on recent events: (also, check updates on Jay’s Recall below)
Judge Amber Finlay’s Adverse Ruling against Concerned Citizens
Judge Finlay accepted the argument from Adage and the Port of Shelton citizens should be restricted to an appeal process defined in the SEPA legislation rather than a ‘constitutional’ or ‘statutory’ write of review. The phrase is synonymous with certiorari–a writ issuing from a superior court calling up the record of a proceeding in an inferior court for review. It is among a family of remedies known as ‘extraordinary’ writs, e.g. a writ of mandamus, quo warranto, habeas corpus, prohibition, coram nobis, scire facias, ne exeat, certiorari, etc.
History and Nature of the Writ
Certiorari is a common law writ known from very early times. [Common Law is a body of judge made law as opposed to Statutory Law created by legislative bodies] Certiorari, said Chief Justice Rugg of the Massachusetts Court, “is one of the ancient prerogative writs, whose history stretches far back toward the beginnings of the common law.”
Certiorari was in common use at the time of the American Revolution and since then has been used everywhere in America. In 1831, Chancellor Vroom of New Jersey wrote:
The principle is universal, that wherever the rights of individuals are invaded by the act of persons clothed with authority to act, and who exercise that authority illegally, the persons aggrieved must seek redress by certiorari.
The purpose of certiorari at the common law was to bring up to a superior court the record of proceedings in inferior tribunals performing “judicial” and “quasi-judicial” actions. Those terms are interpreted broadly in certiorari law, and under statutory forms of certiorari, it is at times permissible to review many actions that can not be so described. [However, certiorari is *discretionary* and absent ‘abuse of discretion’ (a very high hurdle) a lower court judge’s exercise of it will not be disturbed.]
Quasi Judicial – A term applied to the action, discretion, etc. of public administrative officers, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. -Black’s Law Dictionary, rev. 4th ed.-
Quasi Judicial Act – A judicial act performed by one not a judge. -ibid-
Historically certiorari was properly described as a prerogative writ and, even into this century, it has been so described by some American Courts. However, since the American Revolution there has been no royal prerogative here, and certiorari is better seen as one of the extraordinary writs. Certiorari is, as to individuals, ordinarily not a writ of right, unless made so by statute; issuing to them only in the sound discretion of the court. It is recognized as a law action.
Everywhere in the common law world, certiorari has been recognized as a writ necessary to the maintenance of justice and freedom. Chief Justice Rugg wrote: “It always has been recognized as a highly salutary remedial procedure, founded upon a sense of justice, to relieve against wrongs otherwise irremediable,” and Justice Riddell of the Ontario Court said: “The writ is a most valuable one, and the power to grant it could not be abdicated without danger to the administration of justice.” In 1817, the Supreme Court of Tennessee wrote that the writ of certiorari was “of the highest utility and importance” in protecting “the rights of the citizen,” adding that “it is most indispensable to the safety of our citizens, and most essential to the public welfare.” It is, said the same Court in 1902, “a common law writ, of ancientorigin and one of the most valuable and efficient remedies which came to us with that admirable system of jurisprudence.”
The common law writ of certiorari has, in many states, been succeeded by a statutory version. While such statutes are generally interpreted to continue the scope and function of the common law writ, unless changes are clearly prescribed, a number of the statutes are interpreted to significantly expand the scope of the common law writ. Whether common law or statutory, certiorari is to be liberally construed. [But it remains *discretionary*] In many instances, where statutes have indicated action was “final,” certiorari has been held, nevertheless, available by reviewing courts.
Where common law certiorari has been abolished and replaced with a statutory version, the latter are customarily construed with reference to the common law and all changes effectuated by statute or rule of court provided at least the extent of review afforded by the common law writ.
Type of Actions Reviewable in Certiorari
By the great weight of authority, common law certiorari is limited to refiewing actions of tribunals that can be described as judicial or quasi-judicial. The writ is not limited to reviewing actions of courts, but is applicable to actions of administrative bodies and executive officers which can be described as either judicial or quasi-judicial. [Judge Finlay found the Port was acting in neither capacity in signing the lease-option.]
Proceedings have been described as judicial or quasi-judicial when they were conducted in the manner of courts, with parties having a right to notice, hearing, examination and cross-examination of witnesses, and a decision affecting legal rights and obligations of the parties, arrived at by reference to established rules of law, rather than the uncontrolled views of members of the tribunal. [To date, Port hearings have transparently been the unmitigated uncontrolled views of its commissioners. As to the ‘legality’ of that, I don’t know.] In deciding whether administrative action is quasi-judicial and reviewable in certiorari, the Washington Court uses a four factor test: “(1) whether a court could have been charged with making the agency’s decision; [Judge Finlay opined courts don’t sign lease-option contracts of this nature. But ‘masters’ are sometimes appointed to perform similar functions, often in bankruptcy proceedings.] (2) whether the action is one which historically has been performed by courts; [Courts have long appointed receivers for disputed property in an action.] (3) whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability, and (4) whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators.” [Here, Judge Finlay found it did not.]
Common law certiorari has not been available to review legislative, executive, ministerial, or administrative acts that were not judicial or at least quasi-judicial in nature. “Unfortunately,” as the Washington Supreme Court has remarked, “the lines of demarcating the respective territories of the three branches of government cannot be set down with a surveyor’s precision.” Where the actions involved are those of a municipal legislative body, the Colorado Court has said: [More fodder for the ‘discretion’ rule.]
“In order to support a finding that action of a municipal legislative body is quasi-judicial, all of the following factors must exist: (1) a state or local law requiring that the body give adequate notice to the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time the concerned citizens must be given an opportunity to be heard and present evidence; [Citizens were permitted only to comment on the language of the proposed lease-option contract, but not to give ‘evidence’.] and (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law.” [This last never happened. Jay Hupp argued the Port was doing citizens a favor by allowing them to comment on the lease-option language, not because it was mandatory.]
Within such guide-lines it can be said that the term “quasi-judicial” has been given a very broad interpretation for the purposes of certiorari law, and it has frequently been indicated that the right to certiorari is to be liberally construed, not narrowed “in doubtful cases by denominating the action sought to be reviewed as legislative instead of judicial.” [But it remains *discretionary*.]
The writ of certiorari does not run against the acts of private parties or organizations, even when their activities might reasonably be described as “judicial.” [Here is possible reversible error. Concerned Citizens challenged the actions of the Port, not Adage. So how is it that Adage was permitted to ‘join’ the action when it is a private party? Perhaps the error would be considered ‘harmless’ in that Judge Finlay would have ruled against Concerned Citizens in any event given the facts of the case, making such an appeal argument ‘moot’. On the other hand, can it be said the Adage attorneys did not influence the Judge’s decision? It they did, the question of how moot their inclusion was remains an open one.]
Statutory certiorari in some states enables courts in certiorari to review actions other than “judicial” and”quasi-judicial” ones. So, too, under broad constitutional language, some state supreme courts hold that they have jurisdiction to review in certiorari “even ministerial acts of public officers.” [This action should have been filed (as was permissible) before the Washington State Supreme Court (a court of original jurisdiction in such actions) where, presumably, the Justices would better appreciate the legal complexities and nuances of such a novel application of an extraordinary writ, not in a small town Superior Court more familiar with petty criminal proceedings, small claims, and no asset divorces. (Note to Mr. Bricklin, esq.: Don’t bring your fine china to a Mason County picnic.)]
The grant and denial of application for licenses and permits has ordinarily been seen as a “quasi-judicial” action, but in some instances where there was no need for a hearing and no legal guides restricted the public official, courts have refused to so label the action. [Commissioner Hupp stated this was so, that the rule in these types of contract negotiations was secrecy.] Suspension and revocation of licenses and permits have customarily been accepted as “quasi-judicial” activities, especially where they affected substantial property or other rights of the holders.
Matters Reviewed by Certiorari — Generally
Common law certiorari is not an equivalent of the writ of appeal, and provides only a limited judicial review, not being available generally to correct substantive errors made within the jurisdiction of the tribunal below.
In the United States, certiorari is available everywhere to review the acts of judicial or quasi-judicial tribunals acting without jurisdiction.
In virtually all of the country, certiorari is available, even where the inferior tribunal has jurisdiction in the traditional sense, but where the tribunal below does not have power or authority to act in the particular instance or in the manner employed. [Question: Does the Port have the authority to encourage, permit, aid, and abet chemical trespass?…a virtual certainty if Adage has its way.]
Where the tribunal below has denied a party “natural justice” or procedural proprieties to his serious detriment, certiorari often issues. [Property value deprecation seems serious enough, but we don’t need to wait until a mushroom cloud appears to protect ourselves from the imminent harm its precursor foreshadows. Petty drug dealers are routinely sent to prison for possessing precursor chemicals. The public need not wait until the trigger is pulled before seeking relief.]
For errors of law apparent on the face of the record from the tribunal below, even non-jurisdictional ones, common law courts have often granted certiorari, and at times influenced by statutory language, courts issue certiorari when the tribunal below has “proceeded illegally.” [Where’s the smoking gun we need?]
Justice Shields of the Tennessee Supreme Court remarked in 1902: “The cases in which it will lie can not be defined. To do so would be to destroy its comprehensiveness and limit its usefulness.” There has always, in common law countries, been an understanding that the writ of certiorari should be available when a party to litigation was seriously injured by the denial of justice in an inferior tribunal, and the writ remains available in the United States for failures and miscarriage of justice. [But *discretionary*!]
Matters Reviewed by Certiorari — Lack of Jurisdiction
In common law, only errors on the face of the record which were said to be “jurisdictional” were reviewable by certiorari, it being commonly said that the writ “never extended to the merits.” Certiorari can issue everywhere for lack of jurisdiction. Lack of jurisdiction is most readily established, and certiorari becomes available, when there is no jurisdiction either over the subject matter of the litigation, or over the defendant in the proceedings below.
In the law of certiorari, however, “lack of jurisdiction” is frequently found when the tribunal below lacks power to perform a particular act under the circumstances prevailing.
When a tribunal of limited jurisdiction has power to act only upon the establishment of a certain set of facts which are necessary for the foundation of its jurisdiction, these are “jurisdictional facts” and certiorari issues when they are not evident in the record from the inferior tribunal.
Matters Reviewed by Certiorari — Excess of Jurisdiction
Courts are uniformly agreed that certiorari is proper where a tribbunal engaged in judicial or quasi-judicial action in proceeding “in excess of jurisdiction.” Stated generally, excess jurisdiction as distinguished from absence of jurisdiction exists when an act is within the general jurisdiction of a tribunal, but denied to it in the specific instance because of either limitations or conditions imposed by constitution, statute or rules of higher courts.
For disregard of procedural requirements governing their actions, inferior tribunals, boards and officers performing judicial and quasi-judicial actions are often reversed in certiorari.
For mere technical or formal errors not prejudicial to the applicant or having caused him substantial injury, certiorari is customarily refused. [Substantial injury had occurred, but was it brought to the Court’s attention? (lost home sales) Now, it may be refused to be considered as the parties knew (or should have) of it and had an opportunity to present it before a final determination was reached. Note: If you’re going to engage in a knife fight…bring a knife!]
Matters Reviewed by Certiorari — Illegalities
American courts, at times, apply a “fundamental illegality rule,” and issue the writ of certiorari when an inferior tribunal has been guilty of errors of such magnitude, even though it was acting within its jurisdiction generally.
Certiorari has been recognized as proper when inferior tribunals denied applicants their constitutional rights, and as proper to review constitutional errors generally.
Statutes frequently authorize review by certiorari when an inferior tribunal has “acted illegally” or has not “regularly pursued its authority.” In these jurisdictions, any illegal action, procedural or substantive, has justified review by certiorari.
Acting arbitrarily or capriciously is illegal action, not in the regular pursuit of authority, and, consequently such actions by inferior tribunals, boards and officers are reviewed and quashed in certiorari. Illegality is present when the inferior tribunal has applied the wrong law. There is also illegality for purpose of certiorari review when there is a lack of substantial evidence in the tribunal below to support its judgment or order.
In some jurisdictions, an abuse of discretion by the lower tribunal constitutes sufficient illegality to justify review and quashing in certiorari. In common law jurisdictions, certiorari generally issues for errors apparent on the record.
Matters Reviewed In Certiorari — Whether a Failure of Justice Would Result
Courts readily acknowledge the propriety of issuing the writ of certiorari, or its statutory equivalent, when without it there would be “a partial or total failure of justice.” The New Hampshire Court states that certiorari “will issue when the substantial ends of justice so requires.” Modern certiorari in Arizona is authorized out of a “concern to see that essential justice is done.”
Statutes at times empower courts to issue certiorari, not only for lack of jurisdiction in the tribunal below, but “also when, in the judgment of the court, it is deemed necessary to prevent a miscarriage of justice.” “The interest of justice” shall determine when certiorari issues, according to the New Jersey Rules and the Supreme Court. [But discretionary]
It can be said that justice is denied when any fundamental right is withheld by inferior tribunals, and the Washington courts indicate that certiorari is proper whenever there is a “violation of fundamental rights” by the tribunal below.
Pre-Conditions to Issuance of Certiorari — Absence of Another Adequate Remedy
By the weight of authority, certiorari is refused when the applicant has another plain, speedy, and fully adequate remedy. Where an appeal is fully adequate, certiorari is thus denied. Certiorari generally is denied when an appeal is lost through the failure of the petitioner to have prosecuted his appeal with diligence, but where a right to appeal is lost through no fault of the applicant for certiorari, the writ issues.
When a statute creating a right provides for an exclusive remedy for its enforcement, certiorari is denied.
To be an adequate alternative to the writ of certiorari, the other suggested remedy must be equally speedy, convenient and effective. Certiorari has issued where there was another remedy that was theoretically adequate, but would not under the circumstances aid the petitioner. [Mr. Bricklin, esq. argued the SEPA appeal provisions would not be a meaningful or speedy remedy for Concerned Citizens. Judge Finlay erred by ruling certiorari was properly refused on the basis of another available remedy under the statutory guidelines of SEPA. But was it ‘reversible’ error?…doubtful. The legal question arises that although certiorari is ‘discretionary’, a Judge must give their reasoning for making their determination. If that reasoning is legally fallacious, is the decision reversible?…or is it harmless because the outcome would have remained the same without it? The latter is likely the case. Appellate Courts routinely discount harmless error.]
Since the general rule indicated above is but an aspect of the discretionary power of the courts dealing with certiorari applications, it is well accepted that certiorari is proper at times, even though another remedy would be adequate. Various exceptions to the general rule have been acknowledged. Thus, it has been held by the Massachusetts Court that the availability of mandamus does not prevent the issuance of certiorari, since both are extraordinary remedies. Where the judgment of the inferior court was clearly void on its face, courts have at times granted certiorari even though other adequate alternative remedies were available. The courts in India grant the writ of certiorari, even though other adequate remedies are available, where there is a violation by an inferior tribunal of some fundamental principle of justice. Furthermore, there is ample evidence that courts “have elected to exercise (their) discretion and to grant certiorari, notwithstanding the availability of another remedy, where the circumstances have been unusual or exceptional, or in order to prevent unusual hardship, or where not to act might result in irreparable injury or loss.
In a few American states, statutes or rules of court provide that “the writ shall not be denied or annulled because the plaintiff has another plain, speedy, or adequate remedy.”
Pre-Conditions to Issuance of Certiorari — Other
By the general rule, certiorari only issues where the judgments or proceedings in the inferior tribunal are final. However, a final order is not necessary under some certiorari statutes, and even elsewhere, courts have shown increasing willingness to review interlocutory orders in certiorari. [This would be such an instance, if the Judge had been willing to entertain the notion.]
Certiorari is denied when the applicant’s rights are doubtful. It is similarly refused when the order or judgment protested has resulted in only inconsequential harm to the applicant. The New York Cour typically states:
Before allowing or acting upon the writ, the court should be satisfied that it is essential to prevent some substantial injury to the applicant…It should seldom, if ever, be allowed to enable a party to take advantage of mere technical objections. [In the absence of actual harm being brought to the Court’s attention, Judge Finlay found the ‘harm’ alleged by Concerned Citizens to be too hypothetical, speculative, and insufficiently imminent/immediate for injunctive relief. Just how far down the track an oncoming locomotive has to be for it to qualify as academic is, to say the least, highly subjective.]
Applicants who have unclean hands are denied certiorari. Certiorari is denied when the granting of it would work injustice, and it is said that the aid of the writ should never be granted “unless necessary to do substantial justice.” When there has been no miscarriage of justice in the proceedings below, the writ is denied. The Alabama Court states: “If no injustice has been done, or is likely to be done, on account of the matter complained of, the writ should be denied.” It has been said that “a judgment will not be quashed on certiorari, even though erroneous or void, unless it appears from the petition that the petitioner has a defense to the action.”
In passing upon applications for certiorari, courts will consider any public inconvenience that will result from grant of the writ, and the writ is denied when it would result in inextricable confusion in public affairs, or would be useless.
While a court will deny certiorari when it believes the application premature — the Minnesota Court stating: “A writ of certiorari will not be issued to prevent anticipated wrongs,” a New Jersey court reported in 1877 that “it is a frequent practice for the writ to go, while yet the final stay that completes the injury is but threatened.” [Here the courts appear conflicted. What’s Washington Courts’ take on anticipated harm?]
Abstract, academic, and hypothetical questions are not reviewed in certiorari.
Courts, at times, have said that it is a precondition to certiorari that the error protested was properly raised before the inferior tribunal. However, this should not be seen as a rigid rule, and courts readily recognize exceptions when the issue could not have been raised below or when, for any reason, justice requires disregard of the rule.
Since the denial of an application for a writ of certiorari is not a decision on the merits, res judicata does not apply, but courts are not receptive to entertaining multiple applications for certiorari based solely upon grounds earlier adjudicated. [Note: A fundamental practice rule is NEVER p*ss off the Judge. It’s not in the WA Rules Of Court–it doesn’t need to be.]
Although Mr. Bricklin’s motion might well have prevailed before a more experienced and sophisticated Judge/Panel, it’s now spilled milk. Any appeal would be expensive, involve considerable delay, and would likely fail. The standards for finding abuse of discretion in a Judge’s ruling are very high. The Courts favor finality. Future actions of this nature involving constitutional issues, extraordinary writs, extraordinary circumstances, and seldom seen motions/legal strategies are best heard by more experienced sophisticated judges than we have in Mason County. The most senior local judge is Tim Sheldon’s sister, for Christ’s sake! Judge Finlay grew up in Canada before becoming a U.S. citizen and was a practicing attorney before becoming naturalized. The majority of her experience is in criminal law. Roy Cohn (Senator McCarthy’s chief counsel) once said it best: “I don’t care what the law says, just tell me who the judge is!” There’s a lot of truth in that dictum. Mason County is a region where the local Sheriff thinks he needs a TANK and he’s approved black ninja uniforms for his deputies. One of the major reasons half of local residents aren’t in our jail is because it’s too small.
We can’t match a wealthy corporation like Adage dollar for dollar. Our legal strategy needs to remain light, mobile, quick, and voluminous. Numerous plaintiffs in individual actions with frequent appearances on the motion docket are in order. Do not take a weaker force to attack the stronger enemy in a frontal attack where their strength lies. Attack from cover then quickly disappear before it can react.
Finally, do not throw all our resources into a handful of set battles. Use General Washington’s strategy to protect our community. To win this war, it is more important to preserve our army (citizen solidarity and resources) that to win any given battle. We are not holding onto any given position…we are advancing constantly. We are going to attack and defeat the enemy with 1,000 bee stings. Each citizen is going to be taught how to defend their family using light legal tactics that are fast, quickly set up, and quickly modifiable. The added benefit will be that Adage will truly have to hire locals (lawyers) to defend its empire. Think of it as the Mason County full employment act for law firms. We cannot long afford heavy set pieces (artillery) in these legal battles. We need to utilize the light resources we have INCLUDING residency! Unlike the enemy, we’re not going away and we should better know the lay of the community (who knows who and where their sympathies lie). THAT is an important asset…so use it. And don’t keep any attorneys citizens hire in the dark about it. Also, give the attorneys time to prepare…don’t hire them at the last minute and expect miracles. Preparation is critical in these courtroom dramas.