![handle is hein.journals/wlro97 and id is 1 raw text is:
THE FINALITY OF UNMODIFIED APPELLATE
COMMISSIONER RULINGS IN WASHINGTON STATE
Aurora R. Bearse*
Abstract: In Washington appellate courts, unelected court commissioners handle most of
the motion practice. Some motions are minor and mostly procedural, but other motions touch
on the scope of the appeal or its merits. Because commissioners have the power to shape the
course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally
appeal any commissioner decision to a panel of elected judges, via what is called a motion to
modify under RAP 17.7. If a panel modifies a commissioner's ruling, the panel's decision
becomes the final decision of the court on that issue. Similarly, multiple opinions recognize
that an unmodified commissioner ruling also becomes the final decision on issues raised in a
motion. Nevertheless, at times, appellate panels have ignored or amended earlier unmodified
commissioner motion rulings, often without detailed explanation. This Essay explores opinions
in which panels considered the court bound by unmodified commissioner rulings and when
they did not. It reviews in detail those opinions where panels ignored or altered unmodified
commissioner rulings and the reasons panels gave for doing so, if any. And it concludes with
a recommendation that absent a clearly articulated and compelling reason, an appellate panel
should follow the rule that a commissioner's unmodified ruling is the court's own-a concept
that this Essay calls the rule of ruling finality.
INTRODUCTION
In the Washington State Court of Appeals, appellate commissioners
handle most of the motion practice. Although they are unelected creatures
of the appellate court rules,' their decisions on motions can have a
significant effect on the outcome of an appeal. So to preserve the right to
The author serves as a commissioner for Division Two of the Washington State Court of Appeals.
Before her appointment, Commissioner Bearse was an administrative law judge for the Washington
State Office of Administrative Hearings. She was also a staff attorney for Division Two, an assistant
appellate federal public defender, and an associate securities litigation attorney at Weil, Gotshal &
Manges LLC. She clerked for Judge Robert R. Beezer (9th Cir.) and Judge William H. Walls (DNJ).
Opinions expressed in this Essay are not an official position of the court of appeals.
1. Wolfe v. Wolfe, 99 Wash. 2d 531, 534-35, 663 P.2d 469, 471 (1983) (describing the creation of
the commissioner position) (The Supreme Court established the position of Commissioner in 1976
by the Rules of Appellate Procedure [(RAP)] and defined it further in Court of Appeals Administrative
Rule (CAR) 16(c). The Commissioner has broad authority to hear and decide motions authorized by
RAP 17.2 and 18.9(b) as well as any additional motions that may be assigned to that officer by the
Court of Appeals. CAR 16(c)(1). The Court of Appeals Administrative Rules also provide that the
duties of the Commissioner may be increased or altered by the Court of Appeals and that all duties
carried out by the Commissioner are for the benefit of the court as a whole. CAR 16(c)(7).).
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