By Richard B. Sanders

Justice, Supreme Court of Washington State

The City of Seattle charged Jacob with DUI based, in part, on the results of a Breathalyzer test. The machine used to determine Jacob’s blood alcohol content had been calibrated using a control alcohol solution certified by Ann Marie Gordon.

Law enforcement officials use alcohol solutions to determine if the Breathalyzer machines measure accurate alcohol levels. Gordon was the former manager of the Washington State Toxicology Laboratory.

Gordon resigned from her position after it came to light she certified solutions that she did not independently test and, later, other lab workers falsified records to cover up the misconduct.

Jacob and the City stipulated that an evidentiary ruling in an unrelated yet nearly identical case — City of Seattle v. Kennedy, No. 496912 (Seattle Mun. Ct. 2008) (Holifield, J.) — would apply to Jacob. The Kennedy matter concerned Gordon’s misconduct. The Kennedy court found Gordon signed alcohol solution certifications “even though she did not test each of those solutions.”

The court also found widespread “governmental misconduct and an attempt to cover up this governmental misconduct.” The court held the misconduct “egregious” and “the worst kind of governmental misconduct imaginable.”   It found Kennedy suffered “actual prejudice” as a result of the misconduct.

Instead of dismissing the prosecution pursuant to CrRLJ 8.3(b),3 the court suppressed the Breathalyzer evidence. Id. at 23-24, ¶¶ 10-15. It stated, “CrRLJ 8.3(b) allows the court to dismiss under these circumstances. . . . However, the court may, in the alternative, suppress evidence if doing so would eliminate the prejudice and allow the defendants’ [sic] to have a fair trial.” The court cited several cases, including State v. Busig, 119 Wn. App. 381, 81 P.3d 143 (2003), and City of Seattle v. Orwick, 113 Wn.2d 823, 784 P.2d 161 (1989), to support this proposition. Pursuant to the agreement between Jacob and the City regarding the outcome of Kennedy, and based on the blanket suppression, the Breathalyzer evidence in Jacob’s case was also suppressed.

The City sought a writ of review in superior court. It argued only dismissal — not suppression — was available under CrRLJ 8.3(b). The superior court denied the City’s motion.   The superior court’s ruling stated, “Motion For Writ of Review is Denied. The Court finds that Trial Court’s Ruling is a clear legal error. The City has failed to meet its burden.”

The City sought discretionary review in the Court of Appeals, which granted review. The Court of Appeals reversed the superior court and held that the City was entitled to a writ of review for the municipal court’s legal error. City of Seattle v. Holifield, 150 Wn. App. 213, 228, 208 P.3d 24 (2009). It also construed CrRLJ 8.3(b) to permit only dismissal for governmental misconduct. Id. at 222-23. Jacob sought discretionary review here, which we granted. City of Seattle v. Holifield, 167 Wn.2d 1001, 220 P.3d 207 (2009).

ANALYSIS

8. Suppression pursuant to CrRLJ 8.3(b)

Pursuant to CrRLJ 8.3(b), a court of limited jurisdiction has discretion to dismiss a criminal prosecution that is tarnished by governmental misconduct if the misconduct prejudiced the defendant’s rights and materially affected the defendant’s right to a fair trial. The rule reads:

The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order. CrRLJ 8.3(b).

We review a lower court’s interpretation of a court rule de novo. Spokane County v. Specialty Auto & Truck Painting, Inc., 153 Wn.2d 238, 244, 103 P.3d 792 (2004) (citing City of Seattle v. Guay, 150 Wn.2d 288, 76 P.3d 231 (2003)).

Statutory Constructionwrit of

Our interpretation of a court rule relies upon principles of statutory construction. Id. at 249. To interpret a statute, we first look to its plain language. State v. Gonzalez, 168 Wn.2d 256, 271, 226 P.3d 131 (2010) (citing State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007)). If the plain language is subject to one interpretation only, our inquiry ends because plain language does not require construction. Id.

Dismissal “is an extraordinary remedy, one to which a trial court should turn only as a last resort.” State v. Wilson, 149 Wn.2d 1, 12, 65 P.3d 657 (2003) (emphasis added). Trial courts should consider “’intermediate remedial steps'” before ordering the extraordinary remedy of dismissal. Id. (quoting State v. Koerber, 85 Wn. App. 1, 4, 931 P.2d 904 (1996)). We have stated unequivocally that “[d]ismissal is unwarranted in cases where suppression of evidence may eliminate whatever prejudice is caused by governmental misconduct.” State v. Marks, 114 Wn.2d 724, 730, 790 P.2d 138 (1990) (citing City of Seattle v. Orwick, 113 Wn.2d 823, 784 P.2d 161 (1989)); accord United States v. Morrison, 449 U.S. 361, 366, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981) (“[W]e have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.”).

The City contends the trial court erred when it suppressed the Breathalyzer results, rather than dismiss the prosecution outright. It asserts dismissal is the sole remedy pursuant to CrRLJ 8.3(b). Our precedent suggests otherwise.

In Wilson, we held dismissal of a criminal prosecution pursuant to Superior Court Criminal Rule (CrR) 8.3(b) 6 should be used “only as a last resort.” 149 Wn.2d at 12. The language of CrR 8.3(b) is identical to CrRLJ 8.3(b), the rule before us here. In Wilson the superior court dismissed robbery and attempted robbery charges due to governmental misconduct. 149 Wn.2d at 6. The Court of Appeals reversed. We affirmed the Court of Appeals because we found dismissal under the rule to be inappropriate. Id. at 12. We emphasized that the trial judge erred by dismissing the case outright instead of taking ameliorative action. “The trial judge in each case ignored ‘intermediate remedial steps’ when it ordered the ‘extraordinary remedy of dismissal.'” Id. (quoting Koerber, 85 Wn. App. at 4). We stated that the lower court abused its discretion by failing to consider a “less extreme alternative[]” to dismissal. Id. at 12.

We addressed a similar dilemma in Marks, 114 Wn.2d 724. Marks involved a former version of CrR 8.3(b), but the rule contained the same pertinent phrase: “may dismiss.”7 Relying on the then-recently decided case of City of Seattle v. Orwick, 113 Wn.2d 823, 784 P.2d 161 (1989), we held that “[d]ismissal is unwarranted in cases where suppression of evidence may eliminate whatever prejudice is caused by governmental misconduct.” Marks, 114 Wn.2d at 730.

The municipal court relied on the Court of Appeals case of Busig to suppress, rather than dismiss, the prosecution. Busig does not undertake an in-depth analysis of suppression versus dismissal, as Wilson, Marks, and Orwick do, but it does clearly contemplate suppression as an alternative to dismissal. See Busig, 119 Wn. App. at 390 (“neither dismissal nor suppression of the evidence under CrR 8.3(b) was justified” for the alleged government misconduct8 (emphasis added)); see also State v. McReynolds, 104 Wn. App. 560, 579, 17 P.3d 608 (2000) (“Dismissal is not justified when suppression of evidence will eliminate whatever prejudice is caused by the action or misconduct.”).

There is no tension between our precedent and the plain language of CrRLJ 8.3(b). The rule says that the court “may” go to the extreme measure of dismissal. It sets the outer bounds of the court’s discretion and power. Nothing in the plain language of the rule prohibits other less severe remedies within those bounds. The rule does not limit the court’s discretion. Here suppression presents an appropriate, less severe remedy than dismissal under CrRLJ 8.3(b).

Suppression stands as an “intermediate remedial step” and a “less extreme alternative” that avoids the “extraordinary remedy of dismissal.” Wilson, 149 Wn.2d at 12; see also Marks, 114 Wn.2d at 730.

The trial judge found governmental misconduct and prejudice that materially affected Jacob’s right to a fair trial. Because the trial court had the power to suppress rather than dismiss the Breathalyzer evidence pursuant to CrRLJ 8.3(b), the trial court did not err. We reverse the Court of Appeals and conclude suppression was a proper intermediate remedial step.

Writ of Review

A writ of review is an extraordinary remedy granted by statute, State ex rel. Gebenini v. Wright, 43 Wn.2d 829, 830, 264 P.2d 1091 (1953). It “should be granted sparingly.” City of Seattle v. Williams, 101 Wn.2d 445, 455, 680 P.2d 1051 (1984).

We review the superior court’s decision whether to grant a writ of review de novo. Commanda v. Cary, 143 Wn.2d 651, 654, 23 P.3d 1086 (2001) (citing Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995)).

It is well established that the meaning of a statute is a question of law we also review de novo. Lake v. Woodcreek Homeowners Ass’n, 168 Wn.2d 694, 704, 229 P.3d 791 (2010). Our goal in interpreting a statute is to carry out the legislature’s intent. Burns v. City of Seattle, 161 Wn.2d 129, 140, 164 P.3d 475 (2007). As noted in the preceding section, we first examine a statute’s plain language. Gonzalez, 168 Wn.2d at 263. If a statute is unambiguous after a review of its plain meaning, our inquiry is at an end. Id. A statute is ambiguous, however, when it is “‘susceptible to two or more reasonable interpretations,’ but ‘a statute is not ambiguous merely because different interpretations are conceivable.'” Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P.3d 308 (2009) (quoting State v. Hahn, 83 Wn. App. 825, 831, 924 P.2d 392 (1996)).

The legislature has established factors governing whether a writ of review should issue. See RCW 7.16.040.9 Two independent prongs must be satisfied before a court can grant a statutory writ of review. The writ shall issue when an inferior tribunal has (1) exceeded its authority or acted illegally, and (2) no appeal nor any plain, speedy, and adequate remedy at law exists. “Unless both elements are present, the superior court has no jurisdiction for review.” Commanda, 143 Wn.2d at 655. The statute governing writs of review provides in full:

Grobe granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the grounds for granting writ. A writ of review shall common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law. RCW 7.16.040.

The phrase “acting illegally” in the first prong of RCW 7.16.040 is far from a model of clarity. For example, the phrase could mean only an excess of jurisdiction; more broadly, it could also signify any erroneous or faulty ruling of the trial court. It is susceptible to two or more reasonable interpretations and, accordingly, it is ambiguous. Estate of Haselwood, 166 Wn.2d at 498. While we have encountered the phrase before, we have not settled its meaning. See, e.g., Commanda, 143 Wn.2d at 655-56 (mentioning the phrase “acting illegally,” but in dicta).

Jacob contends the City should be able to obtain a writ of review “only . . . when the lower court decision is a patent error such that the ruling is so obviously against the course of common law as to essentially result in an excess of jurisdiction.”

The City, on the other hand, argues petitioners should be able to obtain a writ of review to correct any error of law.

To date the Court of Appeals has conducted the most in-depth analyses of the words “acting illegally” for purposes of RCW 7.16.040. A conflict exists regarding whether the phrase means merely a legal error or something more.

Court of Appeals Divisions One and Two have held writs may lie to correct clear errors of law. Division Three has embraced a more stringent approach. State v. Epler, 93 Wn. App. 520, 969 P.2d 498 (1999) (Div. Three) and City of Seattle v. Keene, 108 Wn. App. 630, 31 P.3d 1234 (2001) (Div. One) provide the most recent and penetrating examinations; they also disagree. But both followed closely on the heels of Washington Public Employees Ass’n v. Washington Personnel Resources Board, 91 Wn. App. 640, 959 P.2d 143 (1998) (WPEA) (Div. Two).

The WPEA court held statutory writs of review can lie to remedy errors of law. It found the phrase “acting illegally” cannot mean only acts that exceed the court’s jurisdiction, because such an interpretation would render other phrases in RCW 7.16.040 redundant. Division Two observed:

To interpret “acting illegally” narrowly to include only acts that violated procedural requirements would render the phrase       superfluous; “acting illegally” would merely describe conduct already encompassed within the statutes’ phrases “exceeded jurisdiction” or “erroneous or void proceeding.” RCW 7.16.040.

But we are not to interpret statutes so as to render any language superfluous. Thus, we assume that the Legislature intended the phrase ‘acting illegally’ to include acts in addition to those already   encompassed in “exceeded jurisdiction” or “erroneous or void proceedings.”

WPEA, 91 Wn. App. at 653.

In Epler, Division Three denied relief to a petitioner alleging clear error of law. At trial Epler moved to dismiss a DUI charge pursuant to CrRLJ 8.3(b).

After the trial court denied his motion, Epler sought a writ of review in superior court. His affidavit alleged that the district court committed a “‘clear error at law, [for] which there is no remedy.'” Epler, 93 Wn. App. at 522 (alteration in original). The superior court granted the writ and dismissed the DUI with prejudice. Id.

On discretionary review, the Court of Appeals commented that a writ of review could not issue to correct errors of law because a lower court does not act illegally by committing legal error. Id. at 525. Instead, the court limited writs to cases where the lower court exceeded its jurisdiction. “[A] merely erroneous ruling is not an act in excess of the court’s jurisdiction, and therefore no writ lies.” Id. at 524 (emphasis omitted).

The Epler court’s discussion of whether a court’s legal error satisfies the “acting illegally” prong of RCW 7.16.040 is dicta. See Keene, 108 Wn. App. At 635. Epler was decided on other grounds; namely, the availability of appeal under the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ). Epler, 93 Wn. App. at 525.

If an adequate remedy at law exists, the second prong of RCW 7.16.040 fails and the writ cannot lie. Accordingly, Epler’s brief discussion of the first prong of RCW 7.16.040 — i.e., whether the trial court exceeded its jurisdiction or acted illegally — had no role in deciding the case.

Moreover, Epler relies on cases that discuss the writ of prohibition — not the writ of review — to arrive at its result. Its precedential value in this area is not robust.

Division One followed WPEA to arrive at its decision in Keene. The court squarely addressed whether, for purposes of RCW 7.16.040, a court “act[s] illegally” when it commits an error of law. It held that correcting a legal error is, in fact, the sole purpose of a writ of review. Keene, 108 Wn. App. at 639-40.

“Neither a writ of mandate nor a writ of prohibition is authorized to correct errors of law. The writ of review, on the other hand, is for just that purpose.” Id.

Keene specifically rejected Epler’s assertions to the contrary. Id. at 632.

Keene cited with approval our case of Williams, 101 Wn.2d 445, in which we upheld, after reviewing substantive errors of law, a writ for interlocutory review of an order denying a jury trial. While the Williams court indicated interlocutory writs should issue sparingly, it nonetheless implicitly authorized their use to correct errors of law when appropriate. Id. At 455.

Jacob contends our holding in Commanda precludes permitting writs of review to remedy mere legal errors. He cites the following language (which the court borrowed from Epler):

“If the court has subject matter jurisdiction, a merely erroneous ruling is not an act in excess of the court’s jurisdiction, and therefore no writ lies. The court’s exercise of discretion is not reviewable by extraordinary writ.”

He suggests the Court of Appeals decision must surrender to our precedent. Id. Commanda discusses “a merely erroneous ruling” in a section of the opinion that summarizes the City’s argument. Commanda, 143 Wn.2d at 655-56. The language paraphrases the City’s position; it does not reflect the position of the court.

While none of these opinions serves as a silver bullet for the issue before us, we find their discussions helpful in arriving at a workable standard. We recognize that the phrase “acting illegally” is ambiguous.

Our purpose is to construe the statute to effect the legislature’s intent. With this in mind, we believe the purpose served by a writ of review is sufficiently similar to that served by interlocutory review that the criteria should inform each other. After all, “the only method of review of interlocutory decisions in courts of limited jurisdiction is still the statutory writ.” Williams, 101 Wn.2d at 455.

We hold that, for purposes of RCW 7.16.040, an inferior tribunal, board or officer, exercising judicial functions, acts illegally when that tribunal, board, or officer (1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court.

We borrowed this formula from our rule governing interlocutory review, see RAP 13.5(b), and that governing discretionary review of a trial court decision. See RAP 2.3(b).14

These standards for granting the statutory writ of review under the “acting illegally” prong lie somewhere between the standards sought by each party here.

They are not so strict that the writ applies merely to cases that exceed jurisdiction. Nor are they are so lax that the writ applies only to correct mere errors of law. In any event, these standards are “specific and stringent.” Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541, 1545 (1986).

They are also “simple and straightforward.” Id. at 1554.

They also make sense from a historical perspective. When this court adopted the RAPs in 1976, they “completely replaced all prior rules governing appellate procedure.” Id. at 1541; see RAP 2.1(b).15

In fact, [t]he former procedures for seeking review, particularly interlocutory review, “by extraordinary writs of review, certiorari, mandamus, prohibition, and other writs formerly considered necessary and proper to the complete exercise of appellate and revisory jurisdiction,” were superseded.

The drafters’ comment explains that the intent behind this change was to simplify and clarify this part of appellate practice. As the comment notes, “[r]eview by way of extraordinary writ under the former rules has been the most confusing of all the appellate procedures, and precedent for almost any arguable position can be found.” Crooks, supra, at 1541 (footnotes omitted) (emphasis added) (quoting former RAP 2.1(b) & cmt. b (1976)).

By applying the standards espoused in the RAPs to courts of limited jurisdiction, we ensure the principles governing review are consistent throughout the review process. It would make little sense to apply a much different standard, because the RAPs themselves were adopted, in part, to streamline and clarify the writ morass. Id. Most importantly, these standards comply with our overarching dogma regarding writs of review, namely, that they are extraordinary remedies granted sparingly. Williams, 101 Wn.2d at 455.

Finally, we note that these standards do not conflict with the other grounds articulated in RCW 7.16.040. They are also not redundant. The writ may still issue independently of the “acting illegally” grounds if an inferior tribunal, board, or officer (1) exceeds its jurisdiction, (2) to correct erroneous or void proceedings, or (3) a proceeding not according to the course of the common law, and if there is no appeal nor any plain, speedy, and adequate remedy at law. See RCW 7.16.040.

CONCLUSION

We reverse the Court of Appeals on both issues before us. We hold that (1) suppression is an available remedy pursuant to CrRLJ 8.3(b), and (2) writs of review shall issue according to the standards articulated in RAP 13.5(b) and RAP 2.3(b)(1) — (3). Here, suppression was proper but even if it were not, it would constitute at most a mere error of law that, without more, would not justify issuance of a writ of review. We reverse.

The case is City of Seattle v. Holifield, No. 83277-3.