§ 16.2 Basis for Decision

• Jurisdiction: Washington

§16.2 BASIS FOR DECISION

The appellate court may base its decision on issues raised by the parties, on issues the court raises itself, or—in certain limited circumstances—as a result of stipulation by the parties.

(1) Issues raised by the parties

The appellate court will ordinarily decide a case solely "on the basis of the issues set forth by the parties in their briefs." RAP 12.1(a). See Salstrom's Vehicles, Inc. v. Dep't of Motor Vehicles, 87 Wn.2d 686, 555 P.2d 1361 (1976). This rule emphasizes the importance of careful briefing. The appellate court, for example, will normally decline to consider an issue raised by a party for the first time at oral argument, even if the issue is of constitutional magnitude. State v. Johnson, 119 Wn.2d 167, 170-71, 829 P.2d 1082 (1992); State v. Hultenschmidt, 87 Wn.2d 212, 550 P.2d 1155 (1976).

For a discussion of how the scope of review is affected by whether claimed errors have been raised in the trial court, see Chapter 11 of this deskbook.

Raising an issue in a brief may not guarantee review, for the appellate courts have declined to consider issues that were raised but not "adequately briefed," particularly on constitutional issues. See, e.g., Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 169, 876 P.2d 435 (1994); State v. Mayes, 20 Wn. App. 184, 579 P.2d 999, review denied, 91 Wn.2d 1001 (1978). Because appellate courts rely heavily on the parties' briefs, the court may also withdraw or reconsider an opinion that addresses an issue that was inadequately briefed by the parties. See Wilson Sporting Goods Co .v. Pedersen, 76 Wn. App. 300, 308 n.7, 886 P.2d 203 (1994).

The appellate court will not ordinarily base its decision on issues raised only by amicus curiae. State v. Hirschfelder, 170 Wn.2d 536, 552, 242 P.3d 876 (2010); Schuster v. Schuster, 90 Wn.2d 626, 585 P.2d 130 (1978). However, the rule is permissive; the court may consider a new issue raised by amicus if the court chooses to do so. Thus, when the law to be applied to the new issue was settled and the question was its application to the facts of the case, the court has considered an issue raised only by amicus. City of Tacoma v. Luvene, 118 Wn.2d 826, 832-33, 827 P.2d 1374 (1992) (preemption of municipal drug ordinance considered when raised only by amicus).

(2) Issues raised by the court

The appellate court will occasionally conclude that the proper disposition of a case requires study of an issue not raised by the parties. See RAP 12.1(b). The Supreme Court in particular is unlikely to ignore controlling law simply because the parties have not properly briefed the case before it:

Courts should not be confined by the issues framed or theories advanced by the parties if the parties ignore the mandate of a statute or an established precedent. A case brought before this court should be governed by the applicable law even though the attorneys representing the parties are unable or unwilling to argue it.

Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 623, 465 P.2d 657 (1970). The court's authority under RAP 1.2(c) to "perform those acts which are proper to secure fair and orderly review" includes the authority to decide a case on the basis of an issue not raised by the parties. State v. Aho,...