Chapter §81.6 Analysis



This section analyzes the application of CR 81.

(1)Application of CR 81(a)

Under CR 81(a), whether the Superior Court Civil Rules apply depends on (1) whether the proceeding is a "special proceeding" and (2) whether an irreconcilable conflict exists between the civil rules and a specific statutory provision or rule governing "special proceedings." See, e.g., State v. Higgins, 75 Wn.2d 110, 118, 449 P.2d 393 (1969) (analyzing whether civil rules governing jury interrogatories conflict with statutory provisions governing eminent domain proceedings). Whether aproceeding is a" special proceeding" can be of great importance because, under CR 81(b), a conflicting statute or rule relating to procedure in a "general" as opposed to a "special" proceeding will be superseded by the civil rules.

Unfortunately, CR 81(a) does not define the term "special proceedings." Hoagland v. Mt. Vernon Sch. Dist. No. 320, 23 Wn.App. 650, 653, 597 P.2d 1376 (1979), aff'd, 95 Wn.2d 424, 623 P.2d 1156 (1981). However, "[t]he generally accepted reference to special proceedings concerns attachment, certiorari, mandamus, prohibition and others incorporated under Title 7, RCW." Id.

Moreover, the Washington Supreme Court defines "special proceedings" to "include only those proceedings created or completely transformed by the legislature. This would include actions unknown to common law (such as attachment, mandamus, or certiorari), as well as those where the legislature has exercised its police power and entirely changed the remedies available (such as the workers' compensation system)." Putman v. Wenatchee Valley Med. Ctr., P.S., 166 Wn.2d 974, 982, 216 P.3d 374 (2009) (finding that medical malpractice claims are not "special proceedings," because they are "fundamentally negligence claims, rooted in the common law tradition," even though the "legislature has made some changes ...."); see also Mahomet v. Hartford Ins. Co., 3 Wn.App. 560,564-65,477P.2d191 (1970) (explaining that garnishment is a statutory remedy and there is no provision for it at common law).

Even if the cause of action did not exist at common law, however, for a "special proceeding" to arise, the enabling statute must also prescribe the use of special procedures that the legislature intends to be "exclusive of all others." Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 105, 117P.3d1117 (2005). If the enabling statute does not do so, claims brought pursuant to the statute...

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