In re Pers. Restraint of Arnold , 190 Wash. 2d 136 ( 2018 )

This opinion was filed for record
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SUSAN L. CARLSON
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SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
NO. 94544-6
In the Matter of the Personal Restraint of
EDDIE D. ARNOLD,
EN BANC
Petitioner.
Filed 15
GORDON McCLOUD,J.—^Eddie Dean Arnold challenges his conviction for
failure to register as a sex offender, in violation of ROW 9A.44.130. He argues—
and the Court of Appeals agreed—^that he was not required to register because his
1988 conviction of statutory rape in violation of a statute amended in 1979, was not
a "sex offense" within the meaning of the current sex offender registration statute.
We disagree. The prior sex offense of which Arnold was convicted meets the two
critical prerequisites to a countable "sex offense" listed in former RCW
9.94A.030(46)(b)(2012):(1) that prior conviction was based on a statute that was
'in effect . . . prior to July 1, 1976" and (2) that prior conviction was based on a
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
statute that is "comparable" to a current "sex offense" as defined in former RCW
9.94A.030(46)(a)(2012).^
The Court of Appeals, Division Three, reached a contrary conclusion in part
because it felt bound by prior decisions of the two other divisions of the Court of
Appeals. In re Pers. Restraint ofArnold, 198 Wash. App. 842, 396 P.3d 375 (2017).
Division Three labeled this deference to a prior out-of-division decision a rule of
"horizontal stare decisis." Id. at 846-48. We reject this rule. It conflicts with the
statutes establishing the powers and duties of the Court of Appeals and our court; it
conflicts with court rules on those topics, it conflicts with prior decisions, and it
would tend to diminish the robust, adversarial development of the law that is the
gem of our current approach. We therefore reverse.
Facts
This case involves statutory interpretation of the failure-to-register statute,
RCW 9A.44.130. That statute requires offenders who have been convicted of a "sex
offense" to register as sex offenders at certain times, and it depends on RCW
9.94A.030 for the definition of a "sex offense" that triggers the registration
requirement. RCW 9A.44.130(l)(a), .128(10)(a). That statute, former RCW
'Amold was charged with failure to register in 2013; therefore we refer to former
RCW 9.94A.030(46)(2012)for the definition of"sex offense." This definition was moved
to RCW 9.94A.030(47) in 2015. Laws of 2015, ch. 261, § 12. However, the analysis
remains the same for the current statute. See LAWS OF 2016, ch. 81, § 16.
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In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
9.94A.030(46) (2012), includes within the definition of "sex offense" all felony
violations of chapter 9A.44 RCW as well as several other categories. For example,
it includes federal and out-of-state convictions that would be classified as sex
offenses in this state. Notably, that statute also includes "[a]ny conviction for a
felony offense in effect at any time prior to July 1, 1976, that is comparable to a
felony classified as a sex offense in (a) of this subsection." Former RCW
9.94A.44.030(46)(b)(2012). This last subsection is the one at issue here, given the
date of Arnold's prior conviction.
On June 27, 1988, Arnold pleaded guilty to a second degree statutory rape
committed in 1987 in violation of former RCW 9A.44.080 (1979). Resp. to Pers.
Restraint Pet., Attach, at A-2.
Shortly after Arnold's 1988 guilty plea, the legislature repealed that statutory
rape statute and the other statutes defining the three degrees of statutory rape in
former RCW 9A.44.070,.080, and .090 (1979), and replaced them all with statutes
criminalizing three degrees of the crime of rape of a child: RCW 9A.44.073, .076,
and .079. See Substitute H.B. 1333, ch. 145, §§ 2-4, 24, 26, 50th Leg., Reg. Sess.
(Wash. 1988).
Then, in 1990, the legislature enacted RCW 9A.44.130, which required
certain sex offenders to register. Second Substitute S.B. 6259, ch. 3, § 402, 51st
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
Leg., Reg. Sess.(Wash. 1990). Arnold has been convicted five times of failure to
register as a sex offender, but he is challenging only his most recent conviction here.
Resp. to Pers. Restraint Pet., Attach, at C-1.
In 2011, Division One decided State v. Taylor, which held that offenders—
like Arnold—who were convicted under former ROW 9A.44.070, .080, and .090
(1979), do not have to register as sex offenders because the period when those crimes
were in effect was not covered by the failure-to-register statute. In other words,those
convictions fell within a statutory time period "gap" in the registration requirement.
162 Wash. App. 791, 799, 259 P.3d 289(2011).
Nevertheless, in 2013, the State charged Arnold with failure to register and
first degree trafficking in stolen property. Resp. to Pers. Restraint Pet., Attach, at D-
1, E-1. In March 2015, Arnold pleaded guilty to failure to register and second degree
trafficking in stolen property. Id. at D-3 to D-8, E-3 to E-8. The trial court accepted
the plea agreement and imposed a 51-month sentence on June 4, 2015. Id. at E-9 to
E-20.
Two weeks after the sentencing hearing, the Spokane County Sheriffs Office
sent Arnold a letter informing him that he was relieved of his duty to register as a
sex offender because of Taylor. Id. at F-1.
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
Procedural History
Shortly after receiving the sheriffs letter, Arnold timely moved to withdraw
his guilty plea under CrR 7.8. Mot. for Withdrawal of Guilty Plea, State v. Arnold,
No. 13-1-03641-1 (Spokane County Super. Ct., Wash. Aug. 6, 2015). Arnold stated
that he was not required to register and was unaware of Taylor when he pleaded
guilty. Id. at 2-3. The trial court transferred the motion to the Court of Appeals for
consideration as a personal restraint petition. Order Transferring Case to Court of
Appeals,State v. Arnold, No. 13-1-03641-1 (Spokane County Super. Ct., Wash. Jan.
19, 2016).
The Court of Appeals, Division Three, issued its decision on April 25, 2017.
198 Wash. App. 842. That decision by the three-judge panel contained four separate
opinions: a majority, a separate concurrence, the majority author's concurrence, and
a dissent. The opinion, though fractured, held that Arnold did not have a statutory
obligation to register as a sex offender. That opinion also articulated a new
"horizontal stare decisis" standard, stating, "Regardless of whether Taylor and \In
Personal Restraint of] Wheeler" were incorrectly decided, parting company at this
point would create unjustified harm by rendering the applicable law impermissibly
vague." Id. at 848.
2 188 Wash. App. 613, 354 P.3d 950(2015).
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In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
We granted review to resolve the conflicting opinions on the interpretation of
the registration statute and the conflicting opinions on whether stare decisis applies
between or among divisions of our Court of Appeals.
Analysis
I. Under the current statutory framework, Arnold is required to register as
a sex offender
In 2013, Arnold was charged with failure to register as a sex offender in
violation ofRCW 9A.44.130(l)(a). That subsection provides, in relevant part.
Any adult or juvenile residing ... in this state who has been found to
have committed or has been convicted of any sex offense . . . shall
register with the county sherifffor the county ofthe person's residence.
(Emphasis added.) The chapter defines "sex offense" in RCW 9A.44.128(10):
"Sex offense" means:
(a) Any offense defined as a sex offense by RCW 9.94A.030 ...
The cross-referenced former RCW 9.94A.030(46)(2012) stated:
"Sex offense" means:
(a)(i) A felony that is a violation of chapter 9A.44 RCW [sex
offenses] other than RCW 9A.44.132 [failure to register as sex offender
or kidnapping offender—^refusal to provide DNA];
(v) A felony violation of RCW 9A.44.132(1)(failure to register)
ifthe person has been convicted ofviolating RCW 9A.44.132(1)(failure
to register) on at least one prior occasion;
^ Arnold was charged with failure to register due to his 1988 second degree statutory
rape conviction. Based on former RCW 9.94A.030(46)(a)(v)(2012), it appears as though
6
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
(b) Any convictionfor afelony offense in effect at any time prior
to July 1, 1976, that is comparable to afelony classified as a sex offense
in (a) ofthis subsection.
(Emphasis added.)
In 1988, Arnold was charged under former RCW 9A.44.080 (1979) with
second degree statutory rape. This conviction is not listed in former RCW
9.94A.030(46)(a)(2012), which listed only crimes that were currently on the books.
The question for us is whether it is included in former RCW 9.94A.030(46)(b)
(2012). To fall within subsection (b)'s coverage, the conviction triggering the duty
to register has to be based on a statute that(1) was "in effect. . . prior to 1976" and
(2)is "comparable" to a current offense listed in former RCW 9.94A.030(46)(a). As
discussed below, Arnold's conviction meets both prerequisites.
A. Former RCW9A.44.080 was in effect before July 1, 1976
The first prerequisite is that the crime of conviction—^here, former RCW
9A.44.080 (1979)—^must have been in effect "prior to July 1, 1976." Former
9.94A.030(46)(b)(2012). The offense of which Arnold was convicted in 1988 was
amended in 1979. It provided:
Amold could have been charged with failure to register due to his prior convictions for
violating RCW 9A.44.132(1). Amold also has failure to register convictions from 2007,
2004, 2003, and 2000—all of which Occurred prior to 2012 and would independently
support a failure to register charge.
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
(1) A person over sixteen years of age is guilty of statutory rape
in the second degree when such person engages in sexual intercourse
with another person, not married to the perpetrator, who is eleven years
of age or older, but less than fourteen years old.
(2) Statutory rape in the second degree is a class B felony.
Former 9A.44.080 (1979).
A pre-July 1, 1976 statute, former RCW 9.79.210 (1975),'^ provided:
(1) A person over sixteen years of age is guilty of statutory rape
in the second degree when such person engages in sexual intercourse
with another person, not married to the perpetrator, who is eleven years
of age or older but less than fourteen years old.
(2) Statutory rape in the second degree is a felony, and shall be
punished by imprisonment in the state penitentiary for not more than
ten years.
There is no debate that the elements ofthese statutes are the same.^ The 1979 statute
under which Arnold was convicted was thus in effect prior to July 1, 1976. Simple
recodification ofthe offense number did not change the statute's elements.^
^ This statute was effective on September 8, 1975. LAWS OF 1975, at ii (effective
date of laws).
^ Wash. Supreme Court oral argument. In re Pers. Restraint ofArnold, No. 94544-
6 (Jan. 11, 2018), at 21 min., 13 sec. through 21 min., 39 see., audio recording by TVW,
Washington State's Public Affairs Network, http://www.tvw.org.
® It is important to note the differences between Amold's conviction and In re
Personal Restraint of Thompson, 141 Wash. 2d 712, 10 P.3d 380 (2000). This court in
Thompson held that Thompson's conviction was invalid on its face because it violated the
ex post facto clause—Thompson was charged with first degree rape of a child, which was
not a crime until almost two years after the offense occurred.Id. at 716;see WASH.CONST,
art. I, § 10, el. 1. There was a similar offense on the books before, but its elements were
different. Id. at 728. The elements of the 1975 crime and the 1979 crime here, in contrast,
are identical.
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In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
B. Former RCW9A.44.080(1979) is comparable to a current offense
listed informer RCW 9.94A.030(46)(a)
The second prerequisite to classification as a "sex offense" triggering
registration requirements in former RCW 9.94A.030(46)(b)(2012) is that the prior
conviction be "comparable to a felony classified as a sex offense in (a) of this
subsection," in other words, to a felony listed in former RCW 9.94A.030(46)(a)
(2012).^
Former RCW 9.94A.030(46)(a) (2012) lists these potentially comparable
felonies:
(i) A felony that is a violation of chapter 9A.44 RCW other than
RCW 9A.44.132;
(ii) A violation of RCW 9A.64.020;
(iii) A felony that is a violation ofchapter 9.68A RCW other than
RCW 9.68A.080;
(iv) A felony that is, under chapter 9A.28 RCW, a criminal
attempt, criminal solicitation, or criminal conspiracy to commit such
crimes; or
(v) A felony violation ofRCW 9A.44.132(1)(failure to register)
if the person has been convicted of violating RCW 9A.44.132(1)
(failure to register) on at least one prior occasion.
^ This statute does not require that the defendant's prior offense match a particular
level offelony—Class A,B,or C—^to be "comparable." In that respect, it differs markedly
from the definition of "comparability" in the Sentencing Reform Act of 1981, RCW
9.94A.525(3).
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
We need go no further than subsection (i) because former RCW 9A.44.080
(1979)is comparable to several ofthe "sex offenses" listed in current chapter 9A.44
RCW. To determine whether the prior conviction statute and the current chapter
9A.44 RCW statute are comparable, we start with the elements of those crimes.^
Despite differences in language, the elements of Arnold's 1988 conviction are the
same as, or encompass, one or more of the following chapter 9A.44 RCW felonies,
depending on the age of the child: RCW 9A.44.073 (rape of a child in the first
degree), RCW 9A.44.076 (rape of a child in the second degree), RCW 9A.44.079
(rape of a child in the third degree), RCW 9A.44.083 (child molestation in the first
degree), RCW 9A.44.086 (child molestation in the second degree), or RCW
9A.44.089 (child molestation in the third degree). In fact, there is no set offacts that
would support a conviction under former RCW 9A.44.080 (1979) that would not
also support a conviction of some felony under current chapter 9A.44 RCW.
Indeed, Arnold does not argue to the contrary. He seems to concede that
former RCW 9A.44.080 (1979) could also be charged as some felony listed in
^ In re Pers. Restraint ofLavery, 154 Wash. 2d 249, 255, 111 P.Bd 837(2005)(citing
State V. Morley, 134 Wash. 2d 588, 605-06, 952 P.2d 167(1998); see also State v. Stockwell,
159 Wash. 2d 394, 397, 150 P.3d 82(2007)(using the Lavery comparability test to hold that
rape of a child in the first degree is comparable to statutory rape ofa child in the first degree
under the Persistent Offender Accountability Act's comparability clause, RCW
9.94A.030(33)).
10
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
chapter 9A.44 RCW, depending on the age of the child. Instead, he argues that
former RCW 9A.44.080 (1979) is not "comparable" under the analysis set forth in
Taylor.
C. Contrary to the holdings in Taylor and Wheeler, the "repeal" of
former RCW 9A.44.080 (1979) does not change the analysis
required byformer RCW 9.94.030(46)(b)(2012)
The Court of Appeals in Taylor read the comparability requirement
differently. It read former RCW 9.94A.030(46)(b)(2012)'s requirement that a prior
conviction "is comparable" to a current chapter 9A.44 RCW felony as a requirement
that the prior conviction be under a currently existing—"is," not"was"—statute. For
that reason, it ruled that former RCW 9.94A.030(46)(b)"did not apply the duty to
register to crimes not presently listed in chapter 9A.44 RCW," and called this lack
of coverage a "gap" in the registration requirement. Taylor, 162 Wash. App. at 798-
79. Applying that holding to the case before it, the Taylor court held that since Taylor
pleaded guilty to statutory rape in the third degree in 1988 in violation of former
RCW 9A.44.090, which was amended in 1979, Taylor was exempt from the
registration requirement. It agreed with Taylor that the sex offender registry statute
did not apply to his conviction because former RCW 9A.44.090 (1979) was not a
currently existing statute and was not scooped into the registration requirement by
the reference to pre-July 1, 1976 crimes because it was a post-1976 crime: "[TJhere
11
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
is no provision, comparable to what was done for the pre-1976 convictions, for
offenses listed in chapter 9A.44 RCW that existed after 1976 but were subsequently
repealed." Taylor, 162 Wash. App. at 799. In other words, the Taylor court held that
since former RCW 9.94A.030(46)(b)explicitly included statutes existing before July
1, 1976, a court could compare those to a current chapter 9A.44 RCW felony, but
could not compare statutes existing after July 1, 1976 because they were not
explicitly listed.
Four years later, the court in Wheeler agreed with that interpretation. 188 Wn.
App. 613. It ruled that former RCW 9.94A.030(33) (1997), whose language is
similar to former RCW 9.94A.030(46)(a)(2012) language we are addressing here,
says "z5"(not was)—so the court must compare two currently existing statutes. Id.
at 620. Wheeler, like Arnold, was convicted under a prior statute, not a currently
existing statute. The Wheeler court therefore concluded that the repealed statutes
could not be comparable and Wheeler had no duty to register. Id. at 620-21.
We disagree. The Taylor and Wheeler courts seem to collapse the question of
whether the defendant was convicted of violating a pre-July 1, 1976 statute with the
question of whether the defendant was convicted of something comparable to a
current chapter 9A.44 RCW felony. As to the first question,it is clear that the statutes
under which Taylor, Wheeler, and Arnold were convicted all existed prior to 1976.
12
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
See supra Section LA. Because the statutes existed prior to July 1, 1976, the
backward-looking inquiry offormer RCW 9.94A.030(46)(b)(2012)is fulfilled, and
the court must proceed to the question of comparability, see supra, at Part LB. As to
that question, former RCW 9.94A.030(46)(b) (2012)'s use of the phrase "is
comparable" cannot possibly bar the court from comparing the sex crime of
conviction(which is identical to a pre-July 1, 1976 crime) with a current sex felony.
We already know that we can compare Arnold's violation of the 1979 statute to the
current crime—^the fact that the 1979 statute was identical to a pre-July 1,1976 crime
tells us that. The only remaining question is how that 1979 statute matches up against
a current chapter 9A.44 RCW felony.
For example. State v. Stockwell compared former RCW 9A.44.070(1979)—
statutory rape in the first degree, which was repealed at the same time as Arnold's
1988 rape conviction—with RCW 9A.44.073, rape of a child in the first degree, to
determine whether Stockwell met the requirements of the Persistent Offender
Accountability Act(POAA)ofthe Sentencing Reform Act of 1981,ch. 9.94A RCW.
159 Wash. 2d 394, 397,150 P.3d 82(2007). Like the registration statute, which defines
a "sex offense," in part, as "[a]ny conviction . . . that is comparable to a felony
classified as a sex offense in (a)ofthis subsection," former RCW 9.94A.030(46)(b)
(2012)(emphasis added),the POAA defines a "persistent offender" as someone who
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In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
"[h]as . . . been convicted as an offender on at least one occasion . . . under prior
Washington law that is comparable to the offenses listed in(b)(i) ofthis subsection."
RCW 9.94A.030(38)(b)(ii)(emphasis added). In Stockwell, we stated that statutory
rape in the first degree and rape of a child in the first degree are legally comparable.
Stockwell, 159 Wash. 2d at 400. The comparability analysis required in the sex offender
registration statute does not requires a different interpretation of"is" from that used
in our Stockwell decision.
The sex offender registration statute, RCW 9A.44.130, therefore requires
Arnold to register because of his 1988 conviction for violating former RCW
9A.44.080(1979).
II. One division of the Court of Appeals should give respectful
consideration to decisions of another division, but should not apply
stare decisis to that prior decision
The members of the Division Three panel deciding this case did not all
disagree with this approach. But they declared that they were bound by decisions of
other divisions of the Court of Appeals to the contrary. The lead opinion in Arnold
declined to "upend settled expectations throughout the state by rejecting" prior
decisions ofDivisions One and Two,and therefore followed the reasoning presented
in Division One's Taylor, 162 Wash. App. 791, and Division Two's Wheeler, 188 Wash.
14
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
App. 613. 198 Wash. App. at 849. Three ofthe four Arnold opinions call this required
deference "horizontal stare decisis."
Each opinion provides a different description of "horizontal stare decisis."
The majority refers to "horizontal stare decisis" but states, "[W]e are not prepared
to resolve the question of exactly how stare decisis applies in the current context,
involving decisions issued by other divisions." Arnold, 198 Wash. App. at 847-48.
Without deciding the contours ofthis new rule, the majority concludes that the harm
created by disagreeing with Taylor and Wheeler would be too great. Id. The first
concurrence does not mention "horizontal stare decisis," and instead states,"When
it comes to whether our Supreme Court's 'incorrect and harmful' standard applies
in this court, I agree with the reasoning of Grisby v. Herzog"^ that it does not."Id. at
850 (Siddoway, J., concurring). The second concurrence goes into much greater
detail about "horizontal stare decisis," concluding that the divisions of the Court of
Appeals should "follow the Supreme Court's lead in recognizing the importance of
both the 'incorrect' and 'harmful' prongs of stare decisis." Id. at 853-54 (Pennell, J.
concurring). The dissent's author "accepts the majority's [horizontal stare decisis]
9 190 Wash. App. 786, 808-09 & n.6, 362 P.3d 763 (2015).
15
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
rule," and "dissent[s] because the holdings of Taylor and Wheeler are incorrect and
harmful." Id. at 855-56 (footnotes omitted).
We reject any kind of "horizontal stare decisis" between or among the
divisions of the Court of Appeals. Statutes, court rules, prior case law of the Court
of Appeals, and prior decisions of this court all compel a contrary conclusion.
First, the Court of Appeals exists within a framework defined by both
Washington Constitution article IV, section 30 and chapter 2.06 RCW (Court of
Appeals). When the Court of Appeals was created, the legislature defined it as a
single court. But it also addressed the question of whether divisions of that single
court could issue decisions that were in conflict. It assumed that such conflicts would
arise. Rather than requiring the Court of Appeals to resolve those conflicts by one
panel racing to a decision, or a second panel deferring to a prior decision, the Court
of Appeals placed the duty to resolve those conflicts in the hands of this court,
stating:
[Cjases involving substantive issues on which there is a direct conflict
among prevailing decisions of panels of the court [of appeals] or
16
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
between decisions of the supreme court... shall be appealed directly
to the supreme court.
RCW 2.06.030(e). Thus, under the statute creating the Court of Appeals, conflicts
are resolved not by stare decisis within that court, but by review in our court.
Our court rules say the same thing. Both RAP 4.2'° and 13.4" address the
process of obtaining review by this court. They explicitly state this court has a duty
RAP 4.2,"DIRECT REVIEW OF SUPERIOR COURT DECISION BY SUPREME
COURT," states:
(a) Type of Cases Reviewed Directly. A party may seek review in
the Supreme Court ofa decision ofa superior court which is subject to review
as provided in Title 2 only in the following types of cases:
(3) Conflicting Decisions. A case involving an issue in which there is
a conflict among decisions of the Court of Appeals or an inconsistency in
decisions of the Supreme Court.
" RAP 13.4, "DISCRETIONARY REVIEW OF DECISION TERMINATING REVIEW,'
states:
(b) Considerations Governing Acceptance of Review. A petition
for review will be accepted by the Supreme Court only:
(2) If the decision of the Court of Appeals is in conflict with a
published decision of the Court of Appeals.
17
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
to resolve conflicts within the Court of Appeals. If one division were required to
defer to the decisions of another division, there would be no need for such a rule.
Washington court decisions follow this statute and those court rules. We
recognize when there are conflicts in the Court of Appeals. We resolve them by
granting review, not by telling the later panel to adhere to a decision of an earlier
panel. See, e.g., State v. Weatherwax, 188 Wash. 2d 139, 143, 392 P.3d 1054 (2017)
("This lack of statutory guidance has produced a conflict in the Court of Appeals.");
State V. Larson, 184 Wash. 2d 843, 847, 365 P.3d 740(2015)("We accepted review to
resolve this conflict within the Court of Appeals between Division One and Division
Two . . . ."); State v. Jones, 172 Wash. 2d 236, 239, 257 P.3d 616(2011)("We affirm
the decision of Division Two ... and disavow Division Three's holding.").
Although Division Three's decision relies largely on cases from this court,
none of them discusses the relationship between the divisions of the Court of
Appeals. Instead, they address the role of stare decisis in this court. Specifically,
the Court of Appeals' opinion cites to our statement in In re Rights to Waters of
Stranger Creek that stare decisis requires a "clear showing that an established rule
is incorrect and harmful before it is abandoned." 77 Wash. 2d 649, 653, 466 P.2d 508
The cited cases also include arguments for an intradivision applieation of the
doctrine of stare decisis, not an interdivision application. See, e.g.. State v. Stalker, 152
Wash. App. 805, 810-12, 219 P.3d 722(2009).
18
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
(1970). But that discussion in Stranger Creek was about overturning the precedent
established by a prior Supreme Court case—^not a split in the Court of Appeals
divisions.
Previous Court of Appeals decisions have come to the same conclusion. In
Grisby, that court held,"The various panels of the Court of Appeals strive not to be
in conflict with each other because, like all courts, we respect the doctrine of stare
decisis." 190 Wash. App. at 807. But while endorsing the value of consistency, the
Court of Appeals—even in Grisby—has still ruled that prior Court of Appeals
decisions constitute persuasive, not binding, authority on other divisions ofthe Court
of Appeals. See, e.g., McClarty v. Totem Elec., 119 Wn. App. 453,469 n.8, 81 P.3d
901 (2003) (noting that while a decision from Division One was not binding
authority, it "can still be persuasive"), rev'd on other grounds, 157 Wash. 2d 214, 137
P.3d 844 (2006). Grisby itself continued its analysis to state.
Where "the decision ofthe Court of Appeals is in conflict with another
decision of the Court of Appeals," a basis exists for a petition for
discretionary review by the Supreme Court. RAP 13.4(b)(2). Ifthe most
recent Court of Appeals opinion overruled conflicting Court ofAppeals
decisions and replaced them as binding precedent and controlling
authority, no decisions would be in conflict and RAP 13.4(b)(2) would
no longer serve any purpose as a basis for discretionary review. The
Supreme Court settles the law when Court of Appeals decisions are in
19
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
conflict. It follows that two inconsistent opinions of the Court of
Appeals may exist at the same time.
190 Wn. App. at 809(footnote omitted).
In fact,"horizontal stare decisis" is not discussed in Washington cases before
Arnold. The decisions discussing that theory were issued after the Arnold decision
and all rejected that theory. State v. Dennis, 200 Wash. App. 654, 658 n.2, 402 P.3d
943 (2017)("Dennis cites . . . Arnold . . . for its holding that we are bound by
horizontal stare decisis to the decisions of our sister divisions. We respectfully
disagree that Payseno [v. Kitsap County, 186 Wash. App. 465, 346 P.3d 784 (2015)]
dictates our holding in this case. Grisby . . . , 190 Wn. App. [at] 808-11 . . .(The
doctrine of stare decisis does not preclude one panel from the court of appeals from
stating a holding that is inconsistent with another panel within the same division."));
State V. Vazquez, 200 Wn. App. 220,226 n.4, 402 P.3d 276(2017)("Our precedents
do not provide an agreed stare decisis analysis that governs requests to revisit prior
appellate court decisions."); Swanson Hay Co. v. Emp't Sec. Dep't, 1 Wash. App. 2d
174,209,404 P.3d 517(2017)("As for the issue of whether we are required to apply
the doctrine of stare decisis and our Supreme Court's 'incorrect and harmful'
standard before disagreeing with Division One,there is room for debate on that issue.
. . . This author has concluded that we are not."); Worthington v. WestNET, No.
48590-7-II, slip op. at 28 n.8 (Wash. Ct. App. Sept. 19, 2017) (unpublished),
20
In re Pers. Restraint ofArnold(Eddie D.), No. 94544-6
https://www.courts.wa.gOv/opinions/pdf/D2%2048590-7-
II%200rder%20Amending%200pinion.pdf (noting Worthington did not provide
any argument or citation to legal authority to support his horizontal stare decisis
argument).
As the amicus brief from the Washington Appellate Lawyers Association
(WALA)explains, the divisions of the Court of Appeals have traditionally treated
decisions from other divisions as persuasive rather than binding because it allows
for "rigorous debate" and "improves the quality of appellate advocacy and the
quality ofjudicial decision making." Amicus Curiae Br. of WALA at 5-6.
This is not to imply that the appellate court's concern with uniformity is
misplaced. The United States Circuit Courts of Appeals deal with similar issues of
consistency—both intracircuit and intercircuit conflicts—and have generally
determined that one panel of a United States Circuit Court of Appeals should not be
in conflict with another within that same circuit.'^ However, this procedural
For examples in the Ninth Circuit, see Hedlund v. Ryan, 854 F.3d 557, 591-92
(9th Cir. 2017)(Bea, J., concurring)("My agreement on this point should not be construed
as a concession that \State v.] McKinneyY, 185 Ariz. 567, 917 P.2d 124 (1996))] was
correctly decided. It was not. But I recognize that, as a three-judge panel, we are bound to
follow McKinney until it is overruled by the Supreme Court of a future en banc panel of
our court. ... As a result, I concur in the majority opinion in full."); Avagyan v. Holder,
646 F.3d 672, 677 (9th Cir. 2011)("A three-judge panel cannot reconsider or overrule
circuit precedent unless 'an intervening Supreme Court decision undermines an existing
precedent of the Ninth Circuit, and both cases are closely on point.'" (quoting Norita v.
Commonwealth, 331 F.3d 690 (9th Cir. 2003))); see also Reilly v. City ofHarrisburg, 858
21
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
difference is due in part to the en banc process, which allows for review by a larger
panel of circuit court judges.''^ Rather than this federal en banc process, this court
resolves conflicts within the Court of Appeals. While intracircuit conflicts at the
federal level are discouraged, intercircuit conflicts occur with some frequency'^ and.
F.3d 173, 177(3d Cir. 2017)("'the holding of a panel in a precedential opinion is binding
on subsequent panels. Thus, no subsequent panel overrules the holding in a preeedential
opinion of a previous panel. Court en bane eonsideration is required to do so.' Policy of
Avoiding Intra-circuit Conflict ofPrecedent, Intemal Operating Proeedures of the Third
Cireuit Court of Appeals § 9.1."); United States v. Puentes-Hurtado, 794 F.3d 1278, 1287
(11th Cir. 2015)("prior panel preeedent rule requires that, where there are two or more
inconsistent circuit decisions, we 'follow the earliest one'"(quoting Hurth v. Mitchem,400
F.3d 857, 862(11th Cir. 2005))); Mader v. United States, 654 F.3d 794,800(8th Cir. 2011)
("We definitively rule today, in aeeordance with the almost universal praetiee in other
federal eircuits, that when faeed with conflieting panel opinions, the earliest opinion must
be followed."(eitation omitted)).
See, e.g.. United States v. Gasca-Ruiz, 852 F.3d 1167-68(9th Cir. 2017)(en bane)
("[w]e took this ease en bane to resolve an intra-eireuit eonfliet").
See, for example, the 2016 Supreme Court opinions resolving intereireuit
disputes: Green v. Brennan, U.S. , 136 S. Ct. 1769, 195 L. Ed. 2d 44(2016); Husky
International Electronics, Inc. v. Ritz, U.S. , 136 S. Ct. 1581, 194 L. Ed. 2d 655
(2016); Lockhart v. United States, U.S. , 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016);
Mathis V. United States, U.S. , 136 S. Ct. 2243, 195 L.Ed. 2d 604(2016); Menominee
Indian Tribe of Wisconsin v. United States, U.S. , 136 S. Ct. 750, 193 L. Ed. 2d 652
(2016); Nichols v. United States, U.S. , 136 S. Ct. 1113, 194 L. Ed. 2d 324 (2016);
Simmons v. Himmelreich, U.S. , 136 S. Ct. 1843, 195 L. Ed. 2d 106 (2016); United
States V. Bryant, U.S. , 136 S. Ct. 1954, 195 L. Ed. 2d 317 (2016); and Voisine v.
United States, _U.S. _, 136 S. Ct. 2272, 195 L. Ed. 2d 736 (2016).
22
In re Pars. Restraint ofArnold (Eddie D.), No. 94544-6
like our own court, the United States Supreme Court also considers these conflicts
in its review of petitions for a writ of certiorari. See Sup. Ct. R. 10.
To be sure, this approach can lead to conflicting decisions. For example, a
single statewide agency can face conflicting obligations in different divisions. This
court addressed a similar issue in In re Personal Restraint ofSmith, 139 Wash. 2d 199,
986 P.2d 131 (1999). In Smith, we interpreted a statute addressing how to calculate
a convicted prisoner's earned early release time. A single, prior Division Three
opinion had addressed the same issue and ruled against the Department of
Corrections (DOC). DOC followed that decision in that individual Division Three
case—but declined to change its statewide policy. Our court criticized DOC for that
decision, holding that DOC should have followed that prior Division Three opinion
partly because there were no other published Washington appellate court decisions
that addressed those circumstances. Id. at 203 n.3. Statewide agencies and other
entities cannot choose to ignore a published judicial decision. We recognize that the
reality of conflicting decisions will create some confusion. However, our current
system ofrigorous debate at the intermediate appellate level creates the best structure
for the development of Washington common law.
23
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
Conclusion
RCW 9A.44.130 includes convictions for violation of former RCW
9A.44.080(1979)within its definition of"sex offense." Arnold is therefore required
to register as a sex offender under that statute. In addition, one division ofthe Court
of Appeals should give respectful consideration to the decisions of other divisions
ofthe same Court ofAppeals but one division is not bound by the decision ofanother
division.
We therefore reverse.
24
In re Pers. Restraint ofArnold (Eddie D.), No. 94544-6
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WE CONCUR:
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