Jason West v. State Of Washington ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 80325-5-I
)
Respondent, )
) DIVISION ONE
v. )
)
JASON CURTIS WEST, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — After the State initially charged Jason West with a felony in
superior court, it refiled misdemeanor charges in district court and dismissed the
superior court proceeding. The district court then denied West’s motion to dismiss the
misdemeanor charges. West sought and was denied a writ of review or writ of
prohibition in the superior court. West appeals, arguing that the district court lacked
authority to hear his case because the State violated the priority of action and
mandatory joinder rules. We disagree, and affirm.
I. FACTS
West, the owner of Budget Auto Wrecking, was involved in a confrontation with a
customer after other employees accused the customer of stealing an auto part. The
Citations and pin cites are based on the Westlaw online version of the cited material.
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State charged West in the King County Superior Court with attempted robbery in the
first degree—a felony.
West was arraigned in superior court on August 10, 2017, and entered a plea of
not guilty. In December 2018 the parties jointly moved to continue with an omnibus
hearing on March 15, 2019, and with a speedy trial expiration date of May 15, 2019.
The court set a case setting hearing for April 22, 2019.
On April 17, 2019, the State filed misdemeanor charges against West for assault
in the fourth degree and theft in the third degree in King County District Court. The
misdemeanor charges were based on the same conduct as the original felony charge.
The State notified defense counsel of its intent on the same day:
After staffing this matter with my supervisor and members of our district
court, we have decided to proceed with this prosecution in our district
court and dismiss Mr. West’s felony here in Superior Court. I have been
informed that district court has filed A4 and T3 today and I will dismiss the
felony case soon.
West responded, and after noting the superior court hearing set for April 22,
asked “I assume you are planning to obtain a dismissal prior to that hearing?” West
asked that the State “please forward a copy of any paperwork you intend to submit to
the [district] court.” The State responded “I’ll do that tomorrow and will send you the
order.”
The following day, April 18, 2019, the State moved ex parte for the superior court
to dismiss the felony charges without prejudice. The court dismissed the charges. The
signed order was provided to West. West did not seek reconsideration or further relief
from the superior court.
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On April 29, 2019, West moved in district court for dismissal of the misdemeanor
charges. West argued that the district court lacked jurisdiction because the State
violated the doctrine of priority of action and the mandatory joinder rules. West also
argued that the State’s misconduct required dismissal under CrRLJ 8.3(b). After oral
argument, on May 9, 2019, the district court denied West’s motion to dismiss. The court
concluded that the State did not violate the doctrine of priority of action or the
mandatory joinder rule. The court also determined that West had not shown that he had
been prejudiced to the extent that his right to a fair trial had been materially affected and
dismissed West’s motion under CrRLJ 8.3(b).
West filed an application for a writ of review or writ of prohibition in the King
County Superior Court. He argued that the district court lacked jurisdiction over his
case because: (1) the State violated the priority of action rule, (2) the State violated the
mandatory joinder rule, and (3) the State violated due process by obtaining the
dismissal from superior court ex parte. On May 14, 2019, the superior court ordered the
district court to certify its record and established a briefing schedule. The court further
ordered that it would determine if oral argument was necessary after receipt of the
briefs.
On July 17, 2019, the superior court denied West’s application for the writs.
The court found that West failed to show that “(1) the District Court exceeded its
authority or acted illegally, and (2) no appeal nor any plain, speedy, and adequate
remedy at law exists.” The court determined that because of the thoroughness of the
briefing, oral argument was unnecessary.
West appealed and we granted discretionary review.
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II. ANALYSIS
West argues that the superior court erred in denying his application for a writ of
review or prohibition because the district court exceeded its jurisdiction when it failed to
dismiss the misdemeanor charges. West avers that dismissal was required under both
the priority of action rule and mandatory joinder rule. We disagree.
A statutory writ of review is an extraordinary remedy. Dep’t of Labor & Indus. v.
Bd. of Indus. Ins. Appeals, 186 Wn. App. 240, 244, 347 P.3d 63 (2015). Our review of
the superior court’s order is de novo. Dep’t of Labor & Indus., 186 Wn. App. at 244.
We review the record of the lower tribunal, not the record of the superior court acting in
its appellate capacity. Dep’t of Labor & Indus., 186 Wn. App. at 244. Under RCW
7.16.040, a superior court may grant a statutory writ only if (1) a lower court exceeded
its jurisdiction or acted illegally and (2) there is no adequate remedy of law.
Both requirements must be met. Dep’t of Labor & Indus., 186 Wn. App. at 244.
A writ of prohibition arrests the proceedings of a tribunal when it lacks
jurisdiction. RCW 7.16.290. A writ of prohibition is a drastic measure that a court may
only issue when the (1) court is clearly and inarguably acting in a matter where it lacks
jurisdiction and (2) there is not an adequate remedy by appeal or otherwise. Barnes v.
Thomas, 96 Wn.2d 316, 318, 635 P.2d 135 (1981). “Statutory writs should be granted
sparingly when used as a method of review of interlocutory decisions of courts of limited
jurisdiction.” City of Seattle v. Williams, 101 Wn.2d 445, 455, 680 P.2d 1051 (1984).
A. Ex Parte Dismissal of Superior Court Charges
West first argues that the superior court erred in not addressing his challenge to
the ex parte dismissal of the superior court felony charges. He avers that due process
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required notice and an opportunity to be heard. Because West’s claim is not properly
before us, we do not address it. 1
While West was not provided notice prior to the State obtaining its ex parte
dismissal, West was provided with the superior court’s order shortly after its entry.
Instead of seeking reconsideration or other relief from the superior court, West moved in
district court to dismiss the district court charges. West then sought a writ of review or
prohibition from the superior court, raising for the first time the earlier superior court
action dismissing the felony charge ex parte.
A writ of review or prohibition is limited to review of actions by inferior courts or
tribunals. Neither the superior court, nor this court, have authority to review the superior
court order dismissing the felony charge using a statutory writ. RCW 7.16.040; RCW
7.16.300. Because the superior court was limited to reviewing the district court’s
actions, it did not err by not considering West’s due process claim.
B. Priority of Action
West next argues that the district court exceeded its jurisdiction in not dismissing
the misdemeanor charges because the State violated the priority of action rule.
The priority of action rule, also known as the first in time rule, states that “‘the
court which first gains jurisdiction of a cause retains the exclusive authority to deal with
the action until the controversy is resolved.’” State v. Stevens County Dist. Court
Judge, 194 Wn.2d 898, 903, 453 P.3d 984 (2019) (quoting Sherwin v. Arveson, 96
1 In State v. Taylor, 150 Wn.2d 599, 80 P.3d 605 (2003), our Supreme Court questioned ex parte
presentation of orders of dismissals, noting “Although we frown upon ex parte contacts, this issue will not
be reviewed because it was not properly presented to this court.” Taylor, 150 Wn.2d at 603, n.2. See
also State v. I.N.A., 9 Wn. App. 2d 422, 424-26, 446 P.3d 175 (2019) (rejecting the State’s action
obtaining post sentencing findings of fact and conclusion of law ex parte).
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Wn.2d 77, 80, 633 P.2d 1335 (1981)). This rule applies if the two cases involved are
identical as to (1) subject matter; (2) parties; and (3) relief. Stevens County, 194 Wn.2d
at 903. The rule is intended “to prevent unseemly, expensive, and dangerous conflicts
of jurisdiction and process.” Sherwin, 96 Wn.2d at 80.
For the priority of action rule to apply, “the cases must be identical ‘such that a
decision of the controversy by one tribunal would, as res judicata, bar further
proceedings in the other tribunal.’” Stevens County, 194 Wn.2d at 903 (quoting City of
Yakima v. Int’l Ass’n of Fire Fighters, 117 Wn.2d 655, 675, 818 P.2d 1076 (1991)).
West correctly argues that a final adjudication in superior court might bar future litigation
in district court. But West ignores that, by the time the district court heard his motion to
dismiss, the superior court case had been dismissed without prejudice, and thus there
was no other action that could lead to a final judgment on the merits. Thus, the priority
of action rule does not apply.
West’s reliance on State v. Chapman, 131 Wash. 581, 582, 230 P. 833 (1924) is
misplaced. In Chapman, the defendant was first charged in district court with a gross
misdemeanor involving fraud. After arraignment in district court, the defendant was
again charged with the same crime in the superior court. 131 Wash. at 612. After the
district court proceeding was dismissed, the defendant moved for dismissal of the
superior court proceeding. The Supreme Court concluded that because the State
elected to dismiss the first action, the State was barred from further prosecution by
RCW 10.43.010. State v. Chapman, 131 Wash. at 585, see also State v. Cummings,
87 Wn.2d 612, 617, 555 P.2d 835 (1976) (“Since the prosecutor has elected to dismiss
the complaint which was first filed . . . further pursuit of the petitioner for the offense
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charged is barred under RCW 10.43.010.”). Under former RCW 10.43.010, dismissal of
a charge of a misdemeanor or gross misdemeanor barred a subsequent prosecution for
the same misdemeanor or gross misdemeanor. RCW 10.43.010 has been repealed,
however, and is no longer in effect. Thus, the Supreme Court’s reasoning in Chapman
and Cummings no longer applies.
C. Mandatory Joinder
West next argues that the district court exceeded its jurisdiction in not dismissing
the misdemeanor charges because the State violated the mandatory joinder rule.
Under the mandatory joinder rule, two or more offenses must be joined if they are
related offenses, which are two or more offenses within the jurisdiction and venue of the
same court that are based on the same conduct. CrR 4.3.1(b)(1); State v. Gamble, 168
Wn.2d 161, 167-68, 225 P.3d 973 (2010). Offenses are from the same conduct if they
are based on a single criminal incident or episode. Gamble, 168 Wn.2d at 168. “A
defendant who has been tried for one offense may thereafter move to dismiss a charge
for a related offense.” CrR 4.3.1(b)(3).
West relies on State v. Dixon, 42 Wn. App. 315, 711 P.2d 1046 (1985) to support
his argument. In Dixon, the defendant was charged with a misdemeanor of aiming or
discharging a firearm, which was later dismissed. Dixon, 42 Wn. App. at 316. The
defendant was then charged with being a convicted felon in possession of a firearm.
Dixon, 42 Wn. App. at 316. This court held that mandatory joinder was violated
because, under former CrR 4.3(c), the defendant was effectively tried because the State
initiated legal proceedings, but was unable to present evidence because it failed to
subpoena its only witness. Dixon, 42 Wn. App. at 318. When it dismissed the
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misdemeanor case, the State did not contemplate a felony charge, and did not seek a
continuance. Dixon, 42 Wn. App. at 318.
Unlike Dixon, West was never tried for the felony charge. There were no findings
by the superior court that had a prelusive effect on the trial in district court. Where in
Dixon, the State did not intend to file another charge when it dismissed the case, here,
the State first filed the misdemeanor charges in district court before dismissing the
superior court case. Because the mandatory joinder rules require a ruling on the merits
sufficient for prejudice to attach, West cannot demonstrate that the State violated the
rule.
The district court had proper jurisdiction in West’s misdemeanor case. Because
West cannot demonstrate that the superior court exceeded its authority or acted
illegally, the superior court did not err in denying the requested writ of review or
prohibition. 2
Affirmed.
WE CONCUR:
2West also argues that the superior court erred when it did not hold a hearing before denying the
writ. Because our review is de novo, and we hold that a writ was not appropriate, we do not address this
argument.
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