HomeMy WebLinkAbout1-AK - 2019 02 22 JEFFCO Motion to Address Improper Brief - FINAL
No. 51500-8-II
From Jefferson County Superior Court No. No. 06-2-00348-8
COURT OF APPEALS, DIVISION II OF THE STATE OF
WASHINGTON
JEFFERSON COUNTY,
Respondent
v.
MICHAEL ANDERSON,
Appellant.
MOTION FOR ORDER TO REQUIRE THAT APPELLANT’S
REPLY BRIEF BE RETURNED FOR CORRECTION OR
REPLACEMENT WITHIN A SPECIFIED TIME OR,
ALTERNITIVELY, TO AUTHORIZE A SUR-REPLY BRIEF
JEFFERSON COUNTY PROSECUTING ATTORNEY’S OFFICE
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
P.O. Box 1220
Port Townsend, WA 98368
(360) 385-9219 (Direct)
Attorneys for Respondent Jefferson County
ii
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................................... ii
I. IDENTITY OF MOVING PARTY ............................................................................ 1
II. STATEMENT OF RELIEF SOUGHT ....................................................................... 1
III. FACTS RELEVANT TO MOTION .......................................................................... 1
A. Anderson’s Reply Brief Contains One Appendix Clearly Not in the Record
and One Appendix that May Not Be in the Record. ....................................... 1
B. Anderson Unsuccessfully Sought a Stay of this Case Pending Appeal of the
District Court Infraction Case. ........................................................................ 2
C. Anderson’s Reply Brief Contains Argument Based on Evidence Not in the
Record. ............................................................................................................ 2
D. Anderson’s Reply Brief Relies on Other Facts without Reference to the
Record. ............................................................................................................ 3
IV. GROUNDS FOR RELIEF AND ARGUMENT ........................................................ 3
A. Anderson’s Reply Brief is an Improper Brief because it Violates RAP
10.3(a)(6), 10.3(a)(8) and 10.3(c). .................................................................. 4
B. RAP 10.1(h) Authorizes the Court to Allow Briefs Not Otherwise Listed in
Rule 10.1. ........................................................................................................ 5
V. CONCLUSION .......................................................................................................... 5
CERTIFICATE OF SERVICE ................................................................................... 7
APPENDIX
Appendix 1—The Court’s January 23, 2019 Order ................................................... 2
Appendix 2—Proposed Order Granting Motion ........................................................ 4
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I. IDENTITY OF MOVING PARTY
Respondent, Jefferson County (the County), asks for the relief sought in Section II.
II. STATEMENT OF RELIEF SOUGHT
On February 20, 2019, Appellant Michael Anderson (Anderson) filed an improper
reply brief that failed to comply with Title 10 of the Rules of Appellate Procedure (RAP).
Accordingly, pursuant to RAP 10.7, the County moves the court for an order that
Anderson’s reply brief be returned for correction or replacement within a specified time.
The correction that is necessary is removing any appendix that is not in the record,
removing any argument based on an appendix not in the record, and removing any claimed
facts for which there is no record citation. Because Anderson’s reply brief was filed
pursuant to an after-the-fact order allowing extended time, the time for correction should be
short. In the alternative, pursuant to RAP 10.1(h), the County moves the court for an order
authorizing a sur-reply brief of no more than 10 pages, to be filed no earlier than April 5,
2019, due to counsel for the County’s pre-planned vacation.
III. FACTS RELEVANT TO MOTION
A. Anderson’s Reply Brief Contains One Appendix Clearly Not in the Record and
One Appendix that May Not Be in the Record.
Anderson attached an Appendix 1 to his reply brief. The citation to Appendix 1 in
Anderson’s reply brief on page 4 contains no reference to the record. That is because
Appendix 1 is findings of fact and conclusions of law from a Jefferson County district court
infraction case decided after this appeal was filed. Accordingly, Appendix 1 not in the
record for this appeal.
Anderson’s reply brief also attaches Appendix 2, a September 24, 2009 letter from
the environmental consulting firm of Ecology and Environment, without any reference to
the record. Thus, from the reply brief, it is not possible to tell whether Appendix 2 is in the
record.
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B. Anderson Unsuccessfully Sought a Stay of this Case Pending Appeal of the
District Court Infraction Case.
The Jefferson County district court infraction case from which Appendix 1 to
Anderson’s reply brief comes is the same infraction case about which Anderson
unsuccessfully sought a stay of the present case. This court denied Anderson’s motion on
January 23, 2019:
Michael Anderson moves to stay COA No. 51500-8-II until the
Jefferson County Superior court issues a decision in his appeal of a limited
jurisdiction court's judgment. RAP 3.3(b). Once the superior court issues its
decision, Anderson would like the present and future appeals consolidated.
Jefferson County objects. It argues that the status of the future appeal is
speculative, because it would not be an appeal as of right. RAP 2.3(d). This
court denies Anderson's motion because the superior court has not yet heard
its appeal and because, even once it is decided, it will not automatically be
heard by this court.
January 23, 2019 Order, 1 (attached as Appendix 1). This court then ordered Anderson to
file his reply 14 days after the order. Id.
Anderson filed his reply brief late, on February 21, 2018, then filed a motion to
extend to authorize the late filing of his reply brief. The County did not oppose the motion
to extend. This court allowed the late filing by order issued on February 21, 2019.
C. Anderson’s Reply Brief Contains Argument Based on Evidence Not in the
Record.
Anderson’s reply brief also contains argument based on Appendix 1, starting at the
last paragraph on page 3 (“Further Jefferson County has taken the position that …”) and
ending on page five up to Section B. (“This definition could apply to many older vehicles
… is subjected to fine and impound.”) and in the last paragraph of page 13 (“In September
2018 …). This argument could not have been presented to the superior court prior to this
appeal because Appendix 1 was not issued until after this appeal was filed.
Similarly, the reply brief contains argument based on Appendix 2, in the first full
paragraph on page 11 (“The County and Department of Ecology …”) and ending on page
12, where there is no reference to the record.
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D. Anderson’s Reply Brief Relies on Other Facts without Reference to the Record.
Multiple times in the reply brief, Anderson asserts facts without reference to the
record. These failures to refer to the record include but are not limited to statements based
on the appendices discussed above. For instance:
• There is no reference to the record to support Anderson’s statements about his
decision not to post a bond. Reply brief, 2-3 (starting in the last full paragraph of
page 2). Anderson’s decision not to post bond occurred after the orders he
appealed here were issued.
• There is no reference to the record to support Anderson’s statements about his
claimed concern for the environment, including Chimacum Creek. Reply Brief,
page 11 (part of the last paragraph on page 10).
• There is no reference to the record to support Anderson’s statements about his
claim that he could not afford cleaning up environmental contamination. Reply
brief, 12 (in the first full paragraph).
• There is no reference to the record to support Anderson’s statements that
Anderson’s attorney “successfully demonstrated” that Anderson had a legal non-
conforming use a year before the claim he was violating the 2012 injunction.
Reply brief, 12 (at the end of the second full paragraph).
• There is no reference to the record to support Anderson’s statements about the
kind of person his lawyer says he is, what his lawyer says the county wants and
what he is now doing to spruce up the property. Reply brief, 13 (in the first full
paragraph).
IV. GROUNDS FOR RELIEF AND ARGUMENT
An issue, theory or argument not presented in a lower court will not be considered
on appeal. Herberg v. Swartz, 89 Wn.2d 916, 925, 578 P.2d 17, 22 (1978); Olson Eng’g,
Inc. v. KeyBank Nat. Ass’n, 171 Wn. App. 57, 73, 286 P.3d 390, 398 (2012). An issue
raised and argued for the first time in a reply brief is too late to warrant consideration.
Davis v. Blumenstein, 432 P.3d 1251, 1259 (Wash. Ct. App. 2019); Bert Kuty Revocable
Living Tr. ex rel. Nakano v. Mullen, 175 Wn. App. 292, 309, 306 P.3d 994, 1002 (2013)
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Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549, 553 (1992).
Anderson’s reply brief violates this fundamental rule.
RAP 10.3 provides requirements for briefs that implement the fundamental rule.
Anderson’s reply brief fails to comply with RAP 10.3, so it is an improper brief. RAP 10.7
contains the rule for improper briefs. “If a party submits a brief that fails to comply with
the requirements of Title 10, the appellate court, on its own initiative or on the motion of a
party, may (1) order the brief returned for correction or replacement within a specified time,
(2) order the brief stricken from the files with leave to file a new brief within a specified
time, or (3) accept the brief.” RAP 10.7.
A. Anderson’s Reply Brief is an Improper Brief because it Violates RAP
10.3(a)(6), 10.3(a)(8) and 10.3(c).
RAP 10.3(c) requires that a reply brief conform with both RAP 10.3(a)(6) and (8).
RAP 10.3(c) also requires that a reply brief “be limited to a response to the issues in the
brief to which the reply brief is directed.” RAP 10.3(c).
RAP 10.3(a)(6) requires “references to relevant parts of the record.” Anderson’s
reply brief fails to refer to the record, as discussed in Section III.C., above. Self-serving
statements in a brief that are unsupported in the record will not be considered. Hous. Auth.
of Grant Cty. v. Newbigging, 105 Wn. App. 178, 184–85, 19 P.3d 1081, 1085 (2001); State
v. Falling, 50 Wash.App. 47, 52 n. 3, 747 P.2d 1119 (1987). Many, if not all, of
Anderson’s statements without citation to the record are self-serving statements.
RAP 10.3(a)(8) prohibits an appendix to a brief that includes “materials not
contained in the record for review without permission from the appellate court.”1 Anderson
has not obtained permission from the court to include an appendix of material not in the
record. In Harbison v. Garden Valley Outfitters, Inc., 69 Wn. App. 590, 849 P.2d 669
(1993), an appellant made a motion to include materials not in the record, but then included
an appendix containing the materials before the motion was considered by the court. The
court admonished the appellant for inappropriately including the materials not of record
without informing the court. Id., 69 Wn. App. at 594–95, 849 P.2d at 672. What Anderson
did is worse. Like the appellant in Harbison, Anderson’s reply brief does not mention that
1 There is an exception in RAP 10.4(c) that does not apply for the presentation of “an issue requires study of a
statute, rule, regulation, jury instruction, finding of fact, exhibit, or the like.”
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any materials in the appendices are outside the record. But unlike the appellant in
Harbison, Anderson failed to make a motion to include materials outside the record. On
top of that, after having lost the motion to stay, Anderson attached as Appendix 1 to his
reply brief the later-decided findings of fact and conclusions of law from the district court
infraction case. Arguing from Anderson’s Appendix 1—which is not in the record—
ignores the court’s ruling against Anderson on the motion to stay and puts the County at a
disadvantage as it prepares for oral argument.
Accordingly, court should enter an order that the reply brief be returned for
correction or replacement within a specified time. The correction that is necessary is
removing any appendix that is not in the record, removing any argument based on an
appendix not in the record, and removing any claimed facts for which there is no record
citation. Because Anderson’s reply brief was filed pursuant to an after-the-fact order
allowing extended time, the time for correction should be short.
B. RAP 10.1(h) Authorizes the Court to Allow Briefs Not Otherwise Listed in
Rule 10.1.
The County has not had an opportunity to respond to the extraneous arguments
made for the first time in Anderson’s reply brief. Therefore, if the court decides not to
require correction of Anderson’s reply brief, the court should allow the County to respond
to the material not in the record in a sur-reply brief. The court can authorize a sur-reply
brief pursuant to RAP 10.1(h) which states, “The appellate court may in a particular case,
on its own motion or on motion of a party, authorize or direct the filing of briefs on the
merits other than those listed in this rule.” RAP 10.1(h) (emphasis added). The County
believes a sur-reply of no more than 10 pages would be sufficient.
Counsel for the County has a long-planned two week vacation out of the country
starting March 8, 2019 and requests that any sur-reply allowed have a filing date of no
earlier than April 5, 2019.
V. CONCLUSION
Pursuant to RAP 10.7, the court should enter an order that Anderson’s improper
reply brief be returned for correction or replacement within a specified time. Anderson’s
reply brief violates RAP 10.3(a)(6), 10.3(a)(8), and 10.3(c) because it:
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• Attaches an appendix that is neither in the record nor authorized by the court;
• Contains self-serving statements that are unsupported in the record; and,
• Contains argument that is not limited to a response to the issues in the brief to which
the reply brief is directed.
Accordingly, the correction that is necessary is removing any appendix that is not in the
record, removing any argument based on an appendix not in the record, and removing any
claimed facts for which there is no record citation. Because Anderson’s reply brief was
filed pursuant to an after-the-fact order allowing extended time, the time for correction
should be short. A proposed order is attached as Appendix 2.
In the alternative, the court should authorize the County to file a sur-reply of no
more than 10 pages, to be filed no earlier than April 5, 2018.
Dated this 22nd day of February 2019
Respectfully submitted,
_____________________________________
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
for Jefferson County
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CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of February 2019, I caused to be served MOTION FOR
ORDER TO REQUIRE THAT APPELLANT’S REPLY BRIEF BE RETURNED FOR
CORRECTION OR REPLACEMENT WITHIN A SPECIFIED TIME OR,
ALTERNITIVELY, TO AUTHORIZE A SUR-REPLY BRIEF on Behalf of Respondent
Jefferson County, Washington on the following party at the following address:
Joan Best,
2072 Victoria Ave,
Port Townsend, WA 98368-7327
Email: joanbest-lawyer@earthlink.net
Attorneys for Appellant Michael Anderson
By: U.S. Postal Service, ordinary first-class mail.
PROSECUTING ATTORNEY FOR JEFFERSON COUNTY
By:
Philip C. Hunsucker, WSBA #48692
Chief Civil Deputy Prosecuting Attorney
Attorneys for Respondent Jefferson County
1
APPENDIX
Pursuant to RAP 17.3, attached to this motion are:
Appendix 1—The Court’s January 23, 2019 Order ……………………………..……….2
Appendix 2—Proposed Order Granting Motion .………………………………………...4
2
Appendix 1—The Court’s January 23, 2019 Order
Washington State Court of Appeals
Division Two
950 Broadway, Suite 300, Tacoma, Washington 98402-4454
Derek Byrne, Clerk/Administrator (253) 593-2970 (253) 593-2806 (Fax)
General Orders, Calendar Dates, and General Information at http://www.courts.wa.gov/courts OFFICE HOURS: 9-12, 1-4.
January 23, 2019
Joan Best (via email) Philip Carl Hunsucker (via email)
Attorney at Law Chief Civil Deputy Prosecuting Attorney
2072 Victoria Ave PO Box 1220
Port Townsend, WA 98368-7327 Port Townsend, WA 98368-0920
joanbest-lawyer@earthlink.net phunsucker@co.jefferson.wa.us
CASE #: 51500-8-II/Jefferson County, Respondent v. Michael Anderson, Appellant
Counsel:
On the above date, this court entered the following notation ruling:
A RULING BY COMMISSIONER BEARSE:
Michael Anderson moves to stay COA No. 51500-8-II until the Jefferson County
Superior court issues a decision in his appeal of a limited jurisdiction court's judgment.
RAP 3.3(b). Once the superior court issues its decision, Anderson would like the present
and future appeals consolidated. Jefferson County objects. It argues that the status of the
future appeal is speculative, because it would not be an appeal as of right. RAP 2.3(d). This
court denies Anderson's motion because the superior court has not yet heard its appeal and
because, even once it is decided, it will not automatically be heard by this court.
Appellant's reply brief is due 14 days from the date of this ruling.
Very truly yours,
Derek M. Byrne
Court Clerk
3
4
Appendix 2—Proposed Order Granting Motion
Washington State Court of Appeals
Division Two
950 Broadway, Suite 300, Tacoma, Washington 98402-4454
Derek Byrne, Clerk/Administrator (253) 593-2970 (253) 593-2806 (Fax)
General Orders, Calendar Dates, and General Information at http://www.courts.wa.gov/courts OFFICE HOURS: 9-12, 1-4.
February ___, 2019
Joan Best (via email) Philip Carl Hunsucker (via email)
Attorney at Law Chief Civil Deputy Prosecuting Attorney
2072 Victoria Ave PO Box 1220
Port Townsend, WA 98368-7327 Port Townsend, WA 98368-0920
joanbest-lawyer@earthlink.net phunsucker@co.jefferson.wa.us
CASE #: 51500-8-II/Jefferson County, Respondent v. Michael Anderson, Appellant
Counsel:
On the above date, this court entered the following notation ruling:
A RULING BY COMMISSIONER BEARSE:
Pursuant to RAP 10.7, Jefferson County moves the the court for an order that
Anderson’s reply brief be returned for correction or replacement within a specified time. In
the alternative, pursuant to RAP 10.1(h), the County moves the court for an order
authorizing a sur-reply brief of no more than 10 pages, to be filed no earlier than April 5,
2019.
The County's motion is granted and the County's alternative motion is denied. Anderson
filed an improper brief in violation of RAP 10.3(a)(6), 10.3(a)(8) and 10.3(c). Anderson
must file a corrected brief that removes any appendix that is not in the record, removes any
argument based on an appendix not in the record, and removes any facts for which there is
no citation to the clerk's papers or the report of proceedings.
Anderson's corrected brief must be filed within 10 days of this order.
Very truly yours,
Derek M. Byrne
Court Clerk
PROPOSED ORDER
[PROPOSED ORDER]
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JEFFERSON COUNTY PROSECUTING ATTORNEY'S OFFICE
February 22, 2019 - 12:32 PM
Transmittal Information
Filed with Court:Court of Appeals Division II
Appellate Court Case Number: 51500-8
Appellate Court Case Title:Jefferson County, Respondent v. Michael Anderson, Appellant
Superior Court Case Number:06-2-00348-8
The following documents have been uploaded:
515008_Motion_20190222123147D2692097_8462.pdf
This File Contains:
Motion 1 - Other
The Original File Name was 2019 02 22 JEFFCO Motion to Address Improper Brief - FINAL.pdf
A copy of the uploaded files will be sent to:
joanbest-lawyer@earthlink.net
phunsucker@hgnlaw.com
Comments:
Sender Name: Laura Mikelson - Email: lmikelson@co.jefferson.wa.us
Filing on Behalf of: Philip Carl Hunsucker - Email: phunsucker@co.jefferson.wa.us (Alternate Email: )
Address:
PO Box 1220
Port Townsend, WA, 98368
Phone: (360) 385-9180
Note: The Filing Id is 20190222123147D2692097