Well, thanks to COVID-19 administrative hearing matters can be certified by the Superior Court and sent up the line to the relevant Court of Appeals [COA], entered for each division with Div. II posted here.
Consider the following:
For the direct appeal transfers, no motion for discretionary review is required to be filed with the Court of Appeals. The Court of Appeals may refuse to accept direct review of an appeal if it finds that the case does not meet the relevant standard under RCW 34.05.518, and if it rejects a case under RCW 34.05.518, its refusal is not subject to further appellate review.
The Court of Appeals recently adopted a General Order to ensure proper implementation of SB 5225. Thurston County Superior Court also recently adopted an Emergency Local Rule (LCR 16(d)) outlining the procedure parties should utilize to request transfers under SB 5225. The Supreme Court Rules Committee approved recent amendments to RAP 6.3, RAP 9.7, and new Suggested RAP 6.4 to implement the new law. Copies are attached to assist your court in determining how it would like to handle such matters.
This means that one not need to consider the COA as a discretionary option but in certain circumstances can proceed directly to a panel of three (3) judges, which may be more efficient and beneficial. A debate between three judiciaries is preferable to a single judge’s fear and reluctance to put their neck out on the line, particularly when the public is threatened. There are costs, too, to consider, especially if you think you may land in the COA anyhow, why not take the risk?
See RCW 34.05.518 to explain that of the other party (the Department) has not consented to the transfer to COA (they may still agree), but the Superior Court finds that transfer would serve the interests of justice and not cause substantial prejudice to any party (the Superior Court case schedules are set far beyond the COA schedules—hard to imagine what that might be) and would not cause substantial prejudice to any party—then direct review will likely be granted.
By Jessica Creager – Associate Attorney