by WANDA PIERCE, Guardian, and other persons similarly situated,




















No. 67680-1



SANDERS, J. (dissenting)—I dissent from the December 2, 1999 Order on Remand.\Fn.1

\Fn.1—See appendix.

This order is inconsistent with the Rules of Appellate Procedure and is contrary to law—in form and substance. Appellate rules shape the form and substance of our procedure and must be impartially, uniformly, and consistently applied, regardless of the identity of the parties and gravity of the interest they represent. If the application of the rule is proper for these litigants, it should be published to insure consistency and dispel any notion of ad hoc decisionmaking.


This case arose after a class of plaintiffs, of whom young Danny Keffeler is the representative, challenged the practice of the Department of Social and Health Services (DSHS) to become the representative payee of those foster children in Washington State entitled to federal social security benefits. In practice DSHS reimburses the state for welfare money expended for the care and maintenance of the foster children by seizing the foster children’s federal benefits. This DSHS practice is authorized by statute, RCW 74.13.060, and regulation, WAC 388-70-069. Whether the practice is inconsistent with federal law is the only issue.

On summary judgment the trial court below held DSHS’ reimbursement scheme runs afoul of, and is thus pre-empted by, an unequivocal federal policy broadly barring alienation of a social security beneficiary’s entitlement. See 42 U.S.C. § 407(a).\Fn.2

\Fn.2—Which provides, in pertinent part,

(a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a) (1994).

DSHS appealed the trial court’s entry of summary judgment on behalf of the plaintiff class to present the narrow legal issue of whether DSHS’ practice surmounts the high bar of § 407(a) and the accompanying Social Security Administration regulations, see 20 C.F.R. §§ 404.2001(a), 404.2035(a).


However, rather than apply the well-settled principles of summary judgment review to the question before us, a majority of this court has voted to fashion an ad hoc order to remand this case to the trial court for further fact-finding.

That majority claims this unprecedented procedure is authorized by RAP 9.11(a); however, this rule provides:

(a) Remedy Limited. The appellate court may direct that additional evidence on the merits of the case be taken before the decision of a case on review if: (1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party’s failure to present the evidence to the trial court, (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.

Under subsection (b) of this rule we may direct the trial court to take additional evidence not contained in the appellate record and make findings of fact based thereupon only if all six of the factors set forth in RAP 9.11(a) are met. Washington Fed’n of State Employees, Council 28 v. State, 99 Wn.2d 878, 884, 665 P.2d 1337 (1983). At best this is an "extraordinary" maneuver, id., as we may seek additional evidence only in "unusual circumstances." Mission Ins. Co. v. Guarantee Ins. Co. 37 Wn. App. 695, 702, 683 P.2d 215 (1984). Nothing, however, marks the appellate review of the trial court’s order granting summary judgment in this case extraordinary or unusual, aside from the majority’s aberrant procedure.

None of the RAP 9.11 factors are met. Looking at RAP 9.11(a)(1)-(3), I cannot conceive how our disposition of the trial court's summary judgment ruling turns on how many litigants make up the class, and for how long (proposed order 2(a)-(c), (f)), or even on a detailed schematic of the state's use of federal funds (proposed order 2(d)-(e)). DSHS' practice is sufficiently described by an agency officer. Clerk’s Papers at 120. RCW 74.13.060, and its implementing regulation, WAC 388-70-069, provides a clear enough view to resolve the precise issue before us: Whether this practice runs afoul of 42 U.S.C. § 407. Such is purely a question of law.

Running through the remaining RAP 9.11 factors, 9.11(a)(4)-(5) do not apply, and 9.11(a)(6), which allows additional evidence if "it would be inequitable to decide the case solely on the evidence already taken in the trial court," is expressly foreclosed by CR 56 and RAP 9.12.\Fn.3

\Fn.3—RAP 9.12 sets forth:

On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trail court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court by stipulation of counsel.

Under RAP 9.12, when reviewing a summary judgment, we may only consider the record before the trial court and we review the evidence contained in that record de novo. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). On review of a summary judgment we may not defer to a trial court's findings of fact at all. Indeed it is a long-standing rule that findings of fact in summary judgment proceedings are deemed superfluous and will not be reviewed on appeal. See, e.g., Hamilton v. Huggins, 70 Wn. App. 842, 848-49, 855 P.2d 1216 (1993) ("The function of a summary judgment proceeding is to determine whether a genuine issue of material fact exists. It is not, as appears to have happened here, to resolve issues of fact or to arrive at conclusions based thereon.").

Since RAP 9.12 and CR 56(c) limit our review to the record before us, if a majority of this court believes this record contains facts and inferences giving rise to a genuine issue of material fact, the only proper course is to reverse and remand for trial.

Indeed that is exactly what, in result, the court's order does. In order to take evidence on which to make findings, the trial court would have to hold a trial, or evidentiary hearings tantamount to a trial, in which evidence will be offered and received from witnesses after the appropriate laying of foundations. CR 52(a). Credibility and conflicting evidence will be weighed and measured—something wholly inconsistent with the very nature of a summary judgment proceeding.

If there is any authority for ramming this square peg of trial court fact-finding into the round hole of appellate summary judgment review, I am not aware of it, and the majority doesn’t cite it.


If there is no genuine issue of material fact in the record before us and the respondent is entitled to prevail as a matter of law, the only lawful course available to this court is affirmance of the trial court's order. A review of the record persuades me the trial court’s order should in fact be affirmed because it is clear enough 42 U.S.C. § 407 and its accompanying regulations forbid the practice DSHS employs to reimburse the state for foster child expenditures out of the children’s social security benefits.

Such a holding is consistent with—indeed, compelled by the logic of—federal case law on this subject. See Bennett v. Arkansas, 485 U.S. 395, 397-98, 108 S. Ct. 1204, 99 L. Ed. 2d 455 (1988) (no "implied exception" to § 407 for the care and maintenance of benefit recipients "given the express language of § 407(a) and the clear intent of Congress that Social Security benefits not be attachable"); Brinkman v. Rahm, 878 F.2d 263 (9th Cir. 1989) (Washington DSHS may not under § 407(a) deduct SSA benefits as reimbursement for the costs of care and maintenance of involuntarily committed mental health patients in state hospitals); Crawford v. Gould, 56 F.3d 1162 (9th Cir. 1995) (section 407(a) prevents California from reimbursing itself for care and maintenance expenditures from state mental hospital patients’ SSA benefits).

Because, as a matter of law, 42 U.S.C. § 407(a) preempts DSHS’ reimbursement procedure and the state statutory-regulatory scheme that permits it, the only correct disposition of this case is to affirm the trial court’s order. That this result will cost the government money is no reason to avoid it, nor for an impartial judiciary to even hesitate in the discharge of its duty. Nor is this disposition dependent upon any facts not in the record now before the court, and especially not dependent upon a trial court fact finding mission apparently deployed to ferret out facts not in the record before us which the parties themselves have not seen sufficiently material to provide.

Remanding for fact-finding while we postpone our review of a summary judgment flies in the face of the rules of civil procedure and unnecessarily delays a just resolution to the legitimate claims of Danny Keffeler and the numerous other foster children of Washington State whose social security benefits have been treated by DSHS as swill for the public trough.


Pursuant to Supreme Court Internal Rule II-7, I have requested the majority to publish its order and this dissenting opinion. However, the invitation was summarily declined.

I find this action particularly troubling in its own right.

The refusal to publish means not only that public access to the opinion will be discouraged but, more importantly, the opinion will be robbed of its precedential effect. Future parties will be precluded from even citing it. Cf. RAP 10.4(h) ("A party may not cite as an authority an unpublished opinion of the Court of Appeals."). Commentators have explained the pitfalls of such a practice. Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit, in his recent article, "Unpublished Opinions: A Comment," 1 Journal of Appellate Practice and Process 219, 221 (1999), explains:

The court is saying that it is not bound by its unpublished opinions. In general, of course, the court on which I sit, like all courts in common-law countries, recognizes the doctrine of precedent. A court should not, without very good reasons publicly acknowledged, depart from past holdings. . . . If we mark an opinion as unpublished, it is not precedent. We are free to disregard it without even saying so. Even more striking, if we decided a case directly on point yesterday, lawyers may not even remind us of this fact. The bar is gagged. We are perfectly free to depart from past opinions if they are unpublished, and whether to publish them is entirely our own choice.

Id. at 221. The practice, explains Judge Arnold, may have devastating psychological effects on the judiciary.

If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. . . . or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug.

Id. at 223. Other scholars have observed:

The published judicial opinion is the "heart of the common law system." . . . . Courts ensure the legitimacy of their decisions by preparing and publishing opinions that explain and justify their reasoning.

Martha J. Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 Am. U. L. Rev. 757, 758 n.48 (1995) (citations omitted).

The core reasons for publication are judicial accountability and uniformity in the impartial meting out of justice. But the majority in this proceeding has defenestrated these two values.

The common law maxim, "Cessante ratione legis cessat ipsa lex"—"When the reason for the law ceases, the law itself ceases"—is a propos. If the majority will not justify its abrogation of the rules of civil procedure in this case with at least the assurance it is willing to abide by the resulting precedent, it strikes a heavy hammer at the integrity of the rules themselves and the system of justice which they are designed to promote. The rule of law is too important to be so lightly sacrificed in the shadows of an unpublished opinion. And the luxury of avoidance of precedent bears too high a price for our even-handed system of justice to pay. These foster children are no less entitled to the law’s jealous protection than any other of our other citizens.

Secret Sanders Index