Earlier last week, the Washington Supreme Court issued a splintered decision, In re Fero, interpreting RAP 13.5(a)’s timeliness requirements for filing a motion for discretionary review of a court of appeals “decision” in the Washington Supreme Court.  (A copy of the slip opinion can be found here:  https://www.courts.wa.gov/opinions/pdf/929751.pdf.)

In Fero, the court of appeals issued a decision granting Fero’s Personal Restraint Petition on January 5, 2016, and remanding for a new trial in light of newly discovered evidence.  Slip Op. at 11-12.  The State filed a timely reconsideration motion on January 25, 2016.  On March 3, 2016, the court of appeals denied that motion.  Less than 30 days later, on April 1, 2016, the State petitioned for review.  (The petition was later properly redesignated as a motion for discretionary review, which was granted.)

At issue before the Court was the timeliness of the State’s motion for discretionary review. Both parties agreed that a party has 30 days to file a motion for discretionary review.  But the parties disagreed on the date upon which the 30-day deadline began to run.

Fero argued the clock began to run on January 5—when the court of appeals issued its decision. The State argued the clock began to run on March 3—when the court of appeals denied its reconsideration motion.

The Court analyzed what “decision” under RAP 13.5(a) initiated the 30-day filing deadline for discretionary review.

RAP 13.5(a) states:

A party seeking review by the Supreme Court of an interlocutory decision of the Court of Appeals must file a motion for discretionary review in the Supreme Court and a copy in the Court of Appeals within 30 days after the decision is filed.

Because RAP 13.5 did not define “decision,” the lead opinion looked to the “context, related rules, and rule-making scheme” to determine its meaning. Slip Op. at 13-14.

The lead opinion first turned to RAP 1.2, which governs the interpretation of the Rules of Appellate Procedure (RAPs):

These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands.

RAP 1.2(a).

The lead opinion then moved to RAP 1.2(c). RAP 1.2(c) states that the “appellate court may waive or alter the provisions of any of these rules in order to serve the ends of justice, subject to the restrictions in rule 18.8(b) and (c).”  RAP 18.8(b) states:

The appellate court will only in extraordinary circumstances and to prevent a gross miscarriage of justice extend the time within which a party must file a notice of appeal, a notice for discretionary review, a motion for discretionary review of a decision of the Court of Appeals, a petition for review, or a motion for reconsideration.

Despite RAP 1.2(c)’s express reference to the restrictions in RAP 18.8, the lead opinion never discussed how that provision restricted a court’s authority to extend the time within which a party must file a motion for discretionary review.

The lead opinion characterized Fero’s interpretation of RAP 13.5(a) as “unnecessarily rigid” and inefficient because it could require filing multiple motions in multiple courts. Slip Op. at 15.  But the lead opinion seemingly interpreted RAP 1.2 in isolation and without reference to RAP 18.8(b)’s “extraordinary circumstance” and “prevent a gross miscarriage of justice” language.  The lead opinion never seemed to harmonize RAP 1.2 with RAP 18.8.

Justice Madsen, joined by Justice Wiggins, dissented. Justice Madsen criticized the lead opinion’s results-oriented interpretation of RAP 13.5.  She noted that the lead opinion never once discussed RAP 18.8(b)’s limitations on extending the time within which a party must file a motion for discretionary review.  According to Justice Madsen, the State’s failure to timely file its motion was neither the product of extraordinary circumstances nor a gross miscarriage of justice.  Because the State failed to file its motion for discretionary review within 30 days of the court of appeals’ grant of Fero’s PRP, Justice Madsen concluded the State’s motion was untimely.  Justice Madsen called out the lead opinion for waiving the RAP 13.5(a) timely filing requirements, even though it disclaimed it was doing so. Compare Slip Op. at 15 n.5, with id. at 36 n.1.

Justice Gordon McCloud separately dissented. She agreed with the lead opinion’s conclusion that the State’s motion for discretionary review should be accepted but disagreed with the underlying conclusion that the State’s motion was timely.  Slip Op. at 41 n.1.  According to Justice Gordon McCloud, the State’s failure to timely file its motion for discretionary review constituted an extraordinary circumstance. Id.

What does Fero mean for practitioners?  After Fero, practitioners now know that the 30-day filing deadline for a motion for discretionary review in the Supreme Court starts ticking either from the date of the court of appeals’ decision on the merits or the date reconsideration is denied.