Comment: State’s high court ignores precedent in writing its rules

By Seth Fine / For The Herald

The Washington state Supreme Court on May 11 once again freed itself from a limitation on its power. The court overturned the conviction of Theodore Rhone for a robbery committed 20 years earlier. In doing so, the court did not even mention the legal restrictions on taking such action.

Under the Washington Constitution, courts usually lack inherent authority to overturn convictions that have been affirmed on appeal. Before 1947, such power only existed under rare circumstances. In that year, the state Legislature granted courts a new power to overturn final convictions based on constitutional error.

Originally, there was no time limit on that power. This created problems. Victims and their survivors were harmed when final convictions were overturned many years later. After long delays, witnesses and evidence were often unavailable. This frequently made re-trial impossible. Additionally, courts sometimes “changed the rules after the game was over.” They created new legal rules and applied them to trials that had taken place before those rules existed.

In 1989, the Legislature addressed these problems. It set a time limit: convictions can only be challenged within a year after they become final on appeal. The Legislature also established some exceptions. Under one exception, convictions can be overturned based on a significant change in the law. This is only allowed, however, if the court determines that the change is retroactively applicable. It is very rare for courts to establish new constitutional rules that are retroactive.

In the Rhone case, however, the Supreme Court ignored this limitation. Rhone, who is Black was convicted of robbing a fast-food restaurant in 2003. In selecting the jury for trial, the prosecutor excused a Black juror. Under then-established law, no explanation was required for such action unless a defendant could show a pattern of racial discrimination. Since no such showing had been made, the trial judge ruled that no explanation was necessary.

On appeal, the defendant asked the court to create a new rule that would require an explanation when the last member of a racial group is excused from a jury. The court refused to create such a rule. Adhering to existing law, the court upheld the conviction. The conviction became final in 2010.

In later cases, the court created new procedural rules governing challenges to jurors that belong to racial minorities. Rhone then asked the court to overturn his conviction based on such rules. Under established law, such action was beyond the court’s power. The time limit for Rhone’s challenge had expired years before. Although there had been a significant change in the law, it did not satisfy the standards for retroactive application. Nor was there any other applicable exception to the statutory time limit.

The court nonetheless set aside the conviction. As a practical matter, this probably sets Rhone free. After 20 years, it is highly unlikely that he can be tried again for his robbery.

In taking this action, the court did not mention the limitations on its authority. Instead, the court said that it was “recalling the mandate.” The court has previously held, however, that this procedural device is unavailable under comparable circumstances. In the Rhone decision, the Court essentially acknowledged this, saying that it was waiving the appellate rules “in the interests of justice.” In other words, the court claimed the power to ignore a valid statute, whenever the court believes that “justice” requires it to do so.

Three years ago, the justices of the Washington state Supreme Court said that they would strike down “even the most venerable precedent” in order to end “systemic racial injustice.” Precedent, however, is what limits the power of courts. As the Rhone decision shows, the court does not appear to recognize any limitations on its power to achieve its policy goals

Seth Fine is a lawyer with 41 years’ experience in appellate litigation. He has handled more than 100 cases before the Washington state Supreme Court.