§ 20.9 Recall of Mandate

• Jurisdiction: Washington

§20.9 RECALL OF MANDATE

RAP 12.9 establishes limited exceptions to the general rule that the appellate court loses authority once the mandate issues. The mandate or certificate of finality may be recalled by the appellate court to enforce its prior decision or to change or modify its earlier decision.

(1) To assure compliance with earlier decision

RAP 12.9(a) provides that the question of compliance by the trial court with an appellate court decision may be raised either by a motion to recall the mandate or by initiating a separate review. The integrity of the appellate process would be substantially impaired if the appellate court had no means to require the trial court to comply with decisions of the court. Recalling the mandate is one way to assure compliance. RAP 12.9 confirms a practice that developed without a rule under prior decisional law. Robert Morton Organ Co. v. Armour,179 Wash. 392, 38 P.2d 257 (1934); State v. Superior Court in and for Lincoln Cnty.,146 Wash. 679, 264 P. 988 (1928); Marchel v. Bunger,15 Wn. App. 182, 547 P.2d 921 (1976).

The question of compliance by the trial court may be raised by motion to recall the mandate under RAP 12.9(a). The regular motion procedure governs. See Chapter 16. Alternatively, the party questioning the trial court action may initiate a separate review of the trial court decision entered after the mandate issues. RAP 12.9(a). The advantage of the motion procedure is that it may be faster to seek relief by motion than by initiating a separate review proceeding. On the other hand, because a motion to recall the mandate is an unusual procedure that is rarely seen by the appellate court, the appellate court may be reluctant to act. Notwithstanding the delay, initiation of a separate review may assure a decision on the issue of whether the trial court complied with the earlier appellate court opinion.

The circumstances will determine whether to move to recall the mandate or to initiate a new review proceeding. If the appellate court decision directs the trial court to take action without extensive proceedings or a new trial, the motion procedure may be more appropriate. The motion procedure may also be more appropriate if speed is of the essence, or if the particular composition of the appellate panel is important. On the other hand, if the mandate calls for a new trial or other extensive proceedings at the trial court, it will probably be more appropriate to file a new review proceeding following the conclusion of the remand proceedings.

Practice Tip: Prudent counsel should both file a motion to recall the mandate and file a timely notice of appeal or notice of discretionary review from the particular judgment or order to obtain appellate review of a decision that runs afoul of the appellate court mandate. The motion and the notice should be directed to the appellate court that issued the final decision under the mandate See,

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