It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. The appellate court commissioner can then simply choose from the available options and grant or deny discretionary review if the commissioner concludes that such review is warranted. This approach creates continued uncertainty and may cause litigants with meritorious petitions for review to not request such relief (given the cost of doing so and uncertain application of the applicable standards), while litigants with undeserving petitions for review (but greater resources) request such relief because there is no clear indication that such relief will be denied. Thus, there is a compelling need for clarity. This Article begins with a survey of Washington case law applying RAP 2.3(b)(1) and (b)(2) standards. It then applies basic principles of statutory interpretation to the RAP, as well as considering the legislative history of the rule to evaluate this precedent before concluding that subsections (b)(1) and (b)(2) should properly apply to distinct situations and that review under subsection (b)(2) should be granted only in the context of a court order having immediate effects outside the judicial process, such as a preliminary injunction, an order requiring disclosure of privileged communications, or an order to divulge a trade secret or other confidential information.
Judge Stephen Dwyer, The Confusing Standards for Discretionary Review in Washington and a Proposed Framework for Clarity, 38 SEATTLE U. L. REV. 91 (2014).