Dkt-7.1-03.04.2013-Opening-Brief1

NO. 12-35886

United States Court of Appeals for the Ninth Circuit

HERBERT BURKART, individually; TANJA M BURKART, individually and

the marital community thereof and SCOTT E. STAFNE,

Plaintiffs-Appellants,

v.

GLOBAL ADVISORY GROUP, INC., a Washington corporation,

Defendant,

and

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation; BAC HOME LOANS SERVICING, LP, a foreign corporation;

BANK OF AMERICA NA, a national bank; BANK OF AMERICA CORPORATION, a Delaware corporation; COUNTRYWIDE FINANCIAL

CORPORATION, a Delaware corporation; COUNTRYWIDE HOME LOANS, INC., a New York corporation; LINDA GREEN DOES 1-10,

Defendants-Appellees. _____________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE, NO. CV-01921-RAJ

HONORABLE RICHARD A. JONES

BRIEF FOR PLAINTIFFS-APPELLANTS

STAFNE LAW FIRM

Attorneys for Plaintiffs-Appellants 17207 155th Avenue NE Arlington, Washington 98223 (360) 403-8700

Case: 12-35886 03/04/2013 ID: 8536473 DktEntry: 7-1 Page: 1 of 47 (1 of 134)

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..........................................iii I. STATEMENT OF JURISDICTION ...............................1 II. ISSUES PRESENTED FOR REVIEW .............................1 III. REVIEWABILITY AND STANDARD OF REVIEW ....................2 IV. STATEMENT OF THE CASE ...................................3 V. STATEMENT OF FACTS ......................................4 VI. SUMMARY OF ARGUMENT .....................................8 VII. ARGUMENT ................................................9 A. This Court should grant review of this appeal

pursuant to the collateral order doctrine. ..........9 B. The District Courts order requiring the

Burkarts and their counsel to consider an unpublished decision distinguishing Washington Supreme Court precedent infringes upon the rights and protections afforded them by the principles of Federalism and Dual Sovereignty inherent in the Constitution .......................15

C. The federal district courts order requiring appellants to consider an unpublished decision as if it were part of Washingtons common law creates federal common law in derivation of the United States Constitution .........................22

D. The Guarantee Clause of the United States Constitution guarantees a republican form of government to the states and not following state law as it has been construed by the states highest court inhibits Washingtons rights to self-government by a republican form of government. .....................................26

1. What is a republican form of government.........27


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2. The Federal Governments instruction, through a federal judge, to consider a nonprecedential Court of Appeals decision that attempts to distinguish the Washington State Supreme Courts decision in Bain, where the federal government had no constitutional power to do so, harms the Constitutions guarantee to a republican form of government..............................31

E. This Court should certify the following

question (or some variation thereof) to the Washington Supreme Court for review:

Does the Supreme Court contemplate that federal district courts will consider and cite to unpublished state Court of Appeals opinions when attempting to adjudicate the meaning of statutes which have not been resolved by the Supreme Court?.................32

VIII. CONCLUSION...............................................35 IX. REQUEST FOR ORAL ARGUMENT..................................35


iii

TABLE OF AUTHORITIES Page(s) Cases: Anastasoff v. United States,

223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).............................13

Arizona v. United States, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012).............15, 16

Bain v. Metro. Mortg. Grp., 175 Wn.2d 83, 285 P.3d 34 (2012)......................passim

Baker v. Carr, 369 U.S. 186 (1962).......................................31

Beaton v. JPMorgan Chase Bank N.A., 2012 U.S. Dist. LEXIS 35988................................7

Bond v. United States, ___ U.S. ___, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011)..............................19, 20

Brodie v Northwest Trustee Servs, 2012 U.S. Dist. LEXIS 139451 (E.D. Wash. Sept. 27, 2012)............................7, 19

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943).......21

Burgess v. Capital One Bank (USA), N.A., 2010 U.S. Dist. LEXIS 42375................................7

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)...............................30

Cobbledick v United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940).........10

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) .....19

Copley Press, Inc. v. Higuera-Guerrero (In re Copley Press, Inc.), 518 F.3d 1022 (9th Cir. 2008).............................10

County of Lane v. Oregon, 74 U.S. (7 Wall.) 71 (1869)...............................26

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994) ... 10


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Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (2000)......................................10

Dwyer v. J.I. Kislak Mortgage Corp., 103 Wn. App. 542, 13 P.3d 240 (2000), review denied, 143 Wn.2d 1024, 29 P.3d 717 (2001).........................6

Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).........23

Grant v. First Horizon Home Loans, 2012 Wash. App. LEXIS 1246......................7, 8, 33, 34

Gregory v. Ashcroft, 501 U.S. 452, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991)....................................................15

Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 495, 198 P.3d 1021 (2009)...................12, 22

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)......................6, 13, 20

Huddleston v. Dwyer, 322 U.S. 232, 64 S. Ct. 1015, 88 L. Ed. 1246 (1944).......22

In re Duncan, 139 U.S. 449 (1891)...................................30, 31

Kenneth W. Brooks Trust A v. Pac. Media LLC, 111 Wn. App. 393, 44 P.3d 938 (2002).......................6

Kitsap County Deputy Sheriff's Guild v. Kitsap County, 148 Wn. App. 907, 201 P.3d 396, 2009.......................6

Klem v. Wash. Mut. Bank, Supreme Court Cause No. 87105-1 (February 28, 2013)...17, 33

Krienke v. Chase Home Fin., LLC, 2007 Wash. App. LEXIS 2668.................................6

Lehman Bros. v. Schein, 416 U.S. 386, 94 S. Ct. 1741, 40 L. Ed. 215 (1974) .23, 32, 35

Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959)......21

Massey v. BAC Home Loans Servicing LP, 2012 U.S. Dist. LEXIS 154256...............................7

Mickelson v. Chase Home Fin. LLC, 2011 U.S. Dist. LEXIS 131818..............................32


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Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).............................30

New York v. United States, 505 U.S. 144, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992)................................................19, 20

Parents Involved Cmty. Schs v. Order Seattle Sch. Dist., 294 F.3d 1085 (2002)..............................25, 32, 35

Peterson v. Citibank, N.A., 2012 Wash. App. Lexis 2017 (Wash. Ct. App. Sept. 17, 2012).......................passim

Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991)....................................................22

Schroeder v. Excelsior Mgmt. Grp., LLC, Supreme Court Cause No. 86433-1 (February 28, 2012)...17, 33

Selkowitz v. Litton Loan Servicing, LP, 2010 U.S. Dist. LEXIS 105086.............................6-7

St. John v. Nw. Tr. Sevrs., Inc., No. C11-5382BHS, 2011 WL 4543658, 2011 U.S. Dist. Lexis 111690 (W.D. Wash. Sept. 29, 2011, Dismissal Order)..........................................19

State v. Fitzpatrick, 5 Wn. App. 661, 491 P.2d 262 (1971)........................5

Texas v. White, 74 U.S. (7 Wall.) 700 (1869)..............................26

Thepvongsa v. Reg'l Tr. Servs. Corp., 2011 U.S. Dist. LEXIS 7853.................................7

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995)....................................................15

United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995).................................................20-21

United States v. Romero-Ochoa, 554 F.3d 833 (2009)........................................9

Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973).........................29


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Vawter v. Quality Loan Serv. Corp., 2010 U.S. Dist. LEXIS 138172...............................7

Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 836 (2006).......11

Wilson v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 9814.................................4

Statutes & Other Authorities: U.S. Const. art. IV, 4.......................................26 28 U.S.C. 1291.............................................1, 3 Wash. Const. art. 4 5.........................................9 Wash. Const. art. 4 30(1).....................................9 RCW 2.06 Ch................................................21, 25 RCW 2.06.040....................................................9 RCW 61.24.030 (7)(a)...........................................19 RCW 61.24.030 (8)(l)...........................................19 RCW Ch. 2.60....................................................9 RCW Ch. 19.86..................................................15 Wash. Rev. Code 2.06.040......................................5 Wash. Rule of Appellate Procedure 12.2(d).......................8 Wash. Rule of Appellate Procedure 12.2(e).......................8 Wash. Rule of Appellate Procedure 12.3(d)...............9, 24, 34 Wash. Rule of Appellate Procedure 12.3(e)......................34 Washington General Rule 14.1................................8, 22 Washington General Rule 14.1(a).......................5, 6, 9, 24 Ninth Circuit Rule 36-3........................................14 FRAP 32.1...............................................6, 12, 14 Brutus I, New York Journal, (Oct. 18, 1787), reprinted in

13 The Documentary History of the Ratification of the Constitution and the Bill of Rights 411 (M. Jensen, J. Kaminski, G. Saladino & R. Leffler eds. 1976-86)......29

3 Elliot's Debates, 396........................................28


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4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 328 (J. Elliot ed. 1881)......28

Cleveland, David R., Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions. 10 J. App. Prac. & Process, 61 (2009)...........12

First Inaugural Address by President Thomas Jefferson (Mar. 4, 1801), reprinted in 1 The Founders' Constitution, 140.........................................29

J. Adams, Defence of the Constitutions of Government of the United States (1787), reprinted in 1 The Founders' Constitution, 119...............................30

J. Locke, Second Treatise of Government 149 (C.B. Macpherson ed. 1980) (6th ed. London 1764)................27

Jones Merritt, D., The Guarantee Clause and State Autonomy: Federalism For A Third Century, 88 Colum. L. Rev. 1 (Jan. 1988).............................16, 26, 27

Letter from Benjamin Rush to John Adams, (July 21, 1789) reprinted in 1 The Founders' Constitution 142 (P. Kurland & R. Lerner eds. 1987)........................29

The Federalist No. 10, 62 (J. Madison) (J. Cooke ed. 1961)..........................27

The Federalist No. 10, 62-64 (J. Madison) (J. Cooke ed. 1961).........................30

The Federalist No. 22, 139 (A. Hamilton) (J. Cooke ed. 1961).........................28

The Federalist No. 28, 179 (A. Hamilton) (J. Cooke ed. 1961).........................17




The Federalist No. 57, 384 (J. Madison or A. Hamilton) (J. Cooke ed. 1961)...........28

W. Everdell, The End of Kings (1983)...........................27


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I. STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to the collateral

order doctrine of 28 U.S.C. 1291.

The Order dismissing the complaint without prejudice was

issued on September 28, 2012. A copy this Order is attached at

pages 3-14 of Volume 1 of the Excerpts of Record (Vol. 1 ER).

The notice of appeal regarding that order was timely filed on

October 25, 2012. Volume 2 of the Excerpts of Record (Vol. 2

ER), pp. 17-18.

The Court sua sponte issued an Order dismissing complaint

without prejudice for failure to prosecute on October 30, 2012.

Vol 1 ER, pp. 1-2. Appellants timely filed an amended notice of

appeal on October 31, 2012 so as to include this order in their

appeal. Vol. 2, ER, pp. 17-18.

II. ISSUES PRESENTED FOR REVIEW A. Whether the collateral order doctrine of 28 U.S.C. 1291

applies where a federal district court issues a decision

granting a motion to dismiss without prejudice, but directs

the plaintiff and his attorney to consider an unpublished

opinion of the Court of Appeals in preparing a new

complaint? (Short Answer YES)

B. Whether the Federal District Court erred by requiring

Appellants to consider an unpublished Washington State


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Court of Appeals opinion when refiling a new complaint

stating a state causes of action? (Short Answer YES)

C. Whether this Court should certify the following question

(or a variation thereof) to the Supreme Court of Washington

for resolution:

Does the Supreme Court contemplate that federal

district courts will consider and cite to

unpublished state Court of Appeals opinions when

attempting to adjudicate the meaning of statutes

which have not been resolved by the Supreme Court?

(Short Answer - YES)

III. REVIEWABILITY AND STANDARD OF REVIEW This is an appeal by Burkarts and their attorney regarding

the federal district courts order dismissing Burkarts

complaint without prejudice conditioned on their filing another

complaint that considered an unpublished and nonprecedential

Court of Appeals decision purporting to distinguish a holding by

the Washington Supreme Court in Bain v. Metro. Mortg. Grp., 175

Wn.2d 83, 285 P.3d 34 (2012).

The bolded and italicized last sentence of the following

portion of the District Courts decision is the only part of the

District Courts order which is being appealed.

The CPA claim is at least plausibly stated. Among the reasons that the CPA claim is plausible is that the Burkarts can plausibly point to an injurythey contend


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they incurred late fees and other charges as a result of BofA's misconduct in the loan modification process. If the Burkarts' attempt to replead their CPA theory, they must eliminate their 9-page list of allegations ( 13.1-13.37), most of which have nothing to do with them, in favor of allegations that specify what Defendants did to them in violation of the CPA. They must also consider Peterson v Citibank, N.A., 2012 Wash App. Lexis 2017 Wash. Ct App. Sept. 17, 2012)(applying Bain and dismissing CPA claim against MERS).

Vol. 1 ER, p. 10.

The District Courts collateral order requiring Burkarts

and their counsel to file a new complaint considering Peterson,

an unpublished and nonprecedential case, occurred sua sponte and

was not addressed below by any of the parties before the order

was rendered.

The standard of review for each issue is stated and briefed

at the beginning of the argument related to each issue.

Briefly, the standard of review for jurisdiction under the

collateral order doctrine of 28 U.S.C. 1291 is de novo. The

standard of review for the District Courts compliance with the

Constitution is also de novo. The standard of review for

certification to the Supreme Court of Washington is abuse of

discretion.

IV. STATEMENT OF CASE

In its decision, the court conditioned Burkharts right to

submit an amended complaint on the requirement that they

consider an unpublished, nonprecedential state Court of Appeals


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decision. In this regard the District Court ordered appellants:

must consider Peterson v Citibank, N.A., 2012 Wash App. Lexis

2017 Wash. Ct App. Sept. 17, 2012)(applying Bain and dismissing

CPA claim against MERS).1 (Emphasis Supplied) Vol. 1 ER, p. 10.

V. STATEMENT OF FACTS

The District Court ordered as part of its decision

dismissing plaintiff Burkarts complaint without prejudice that

Burkart and his attorney must prepare a new complaint which took

into account an unpublished opinion which distinguished the

Supreme Courts decision in Bain. Vol. 1 ER, p. 10. Bain held

that MERS system Deed of Trust Act violations presumptively

violated Washingtons Consumer Protection Act. See Bain, 175

Wn.2d at 115-19.2

1 Shepards identifies the decision being appealed as following Peterson. Peterson, an unpublished decision which purports to distinguish Bain, is also cited in Wilson v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 9814 1

2 The Burkharts and their counsel believed Peterson v Citibank, N.A., supra., effectively eviscerated Bains CPA holdings by reasoning that where a borrower was in default the cause of their damages was not any unfair or deceptive practice, but the failure to pay their bills. It did not even matter to the Court of Appeals that the borrowers did not know who they may have owed money to because they owed the money to someone. Nor do the Petersons assert that there was no party entitled to foreclose on the property. Peterson v Citibank, N.A., supra., at *11-12. This fact is not in the record below, but appellants contend is a reasonable inference from their refusing to comply with and appeal of the District Courts order. 2


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The following facts are not in the record before the

District Court as the issue which is being appealed pursuant to

the collateral order doctrine is one which did not arise until

the District Court issued its decision. Appellants ask this

Court to take judicial notice pursuant to Fed. R. Evid. 201 of

the following facts which apply to the issues now before this

Court as a result of this appeal. To the extent this Court

declines to take judicial notice of the following facts,

appellants request this Court consider the following as

argument.

Unpublished decisions are not a part of the common law of

the State of Washington.

In enacting [Wash. Rev. Code 2.06.040] the legislature recognized that opinions which do not have sufficient precedential value to affect the common law of our state should not be published. To continue the publication of cases which merely restate well established principles of the law fills up our book shelves, complicates legal research and will inevitably adversely affect the computerization of the case law of our state. We therefore hold that unpublished opinions of the Court of Appeals will not be considered in the Court of Appeals and should not be considered in the trial courts. They do not become a part of the common law of the State of Washington.

State v. Fitzpatrick, 5 Wn. App. 661, 668, 491 P.2d 262 (1971).

Washington General Rule 14.1(a) states: A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those


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opinions not published in the Washington Appellate Reports.

Wash. General Rule 14.1(a)(emphasis added)3.

Attorneys practicing law in Washington cannot cite unpublished

court of appeals decisions in a Washington court. Kitsap

County Deputy Sheriff's Guild v. Kitsap County, 148 Wn. App.

907, 911, 201 P.3d 396, 2009; Kenneth W. Brooks Trust A v. Pac.

Media LLC, 111 Wn. App. 393, 44 P.3d 938 (2002)(imposing $100

sanction on attorney citing an unpublished decision); Dwyer v.

J.I. Kislak Mortgage Corp., 103 Wn. App. 542, 548-49, 13 P.3d

240 (2000), review denied, 143 Wn.2d 1024, 29 P.3d 717 (2001).

(imposing $500 sanction on attorney for citing an unpublished

decision.)

As is indicated by the District Courts order appealed

here, federal district court judges sitting in Washington

routinely cite to unpublished decisions of the Washington Court

of Appeals in attempting to discern the meaning of Washington

substantive law. See e.g. Krienke v. Chase Home Fin., LLC, 2007 Wash. App. LEXIS 2668 (unpublished decision Washington Court of

Appeals decision) which has been followed as if it represented

Washington common law in multiple federal court decisions; to

wit: Selkowitz v. Litton Loan Servicing, LP, 2010 U.S. Dist. 3 This Circuit, like the State of Washington, held prior to the enactment of FRAP 32.1 that it could decide not to make precedential rulings and prohibit citation to unpublished decisions. See Hart v. Massanari, 266 F.3d 1155, 1179 (9th Cir. 2001). See also infra.


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LEXIS 105086; Vawter v. Quality Loan Serv. Corp., 2010 U.S.

Dist. LEXIS 138172; Thepvongsa v. Reg'l Tr. Servs. Corp., 2011

U.S. Dist. LEXIS 7853; Beaton v. JPMorgan Chase Bank N.A., 2012

U.S. Dist. LEXIS 35988; Brodie v. Northwest Trustee Servs., 2012

U.S. Dist. LEXIS 139451; Massey v. BAC Home Loans Servicing LP,

2012 U.S. Dist. LEXIS 154256; Burgess v. Capital One Bank

(USA), N.A., 2010 U.S. Dist. LEXIS 42375.

Recently, several Washington attorneys have grown so

concerned about a federal usurpation of Washington States

common law related to non-judicial foreclosures of real property

they have filed an amicus brief supporting Washington Supreme

Court review of the unpublished case of Grant v. First Horizon

Home Loans, 2012 Wash. App. LEXIS 1246. In their brief

Homeowners Attorney asked the Supreme Court to adopt as

precedent the Court of Appeals holding that

Under the deeds of trust act (DTA), chapter 61.25 RCW, the trustee must have proof that the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust before issuing a notice of trustee's sale.4

4 This unpublished holding is directly at odds with Brodie v. Northwest Trustee Servs., 2012 U.S. Dist. LEXIS 139451, where a federal district court claimed:

4the Deed of Trust Act ("DTA") does not require a lender to prove ownership of the note to the borrower before initiating foreclosure proceedings; rather, the DTA merely requires a foreclosing lender to demonstrate its ownership of the note to the trustee.

4


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Homeowners Attorneys also asked the Washington Supreme

Court to review of Grants claim that his case should have been

published pursuant to RAP 12.2(d) and (e).5

VI. SUMMARY OF ARGUMENT

The Trial Court ordered that: [t]hey [Burkarts] must also

consider Peterson v. Citibank, N.A. That opinion is

unpublished, not intended to be precedent in Washington, and

cannot be cited to Washington Courts. See General Rule 14.1. The

directive of the District Court was to prepare a complaint based

on a nonprecedential ruling which Burkarts counsel believed was

incorrectly decided. The Federal Courts order is consistent

with Washington federal district courts proclivity to treat

unpublished decisions construing the Deed of Trust Act, RCW Ch.

64.21 (DTA), as precedent, rather than certifying unresolved

issues to the Washington Supreme Court.

Under the doctrines, standards, policies and principles

relating to Federalism, the States authority to create common

law in their own jurisdictions, and the U.S. Constitutions

Guarantee of a Republican form of government, Federal Courts

5 By way of full disclosure, Burkarts attorney here, an appellant herein, is one of the group Homeowners Attorneys who filed the previously mentioned amicus brief in Grant and also filed an amicus brief in Bain. Homeowners Attorneys challenged in Bain, among other things, the rationale of federal authority in this traditional area of state law, see 2011 WA. S. Ct. Briefs 517238; 2012 S. Ct. Briefs Lexis 36. 5


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must apply Washingtons General Rule 14.1(a), which eliminates

unpublished cases from Washingtons common law, when resolution

of a case requires the application of state substantive law

related to the taking of real property.

The federal district courts directive to ignore state law

imperils a substantial public interest and the particular

constitutional values set forth in the above paragraph and

described more fully in Parts B, C, and D hereof.

Finally, to the extent the application General Rule 14.1

(a) is unclear (and it may be given the tension between Wa.

Const. Art. 4 Section 30 (1) and (5) and RCW 2.06.040 and Wash.

Rule of Appellate Procedure 12.3(d)) this Court should certify

the issue of the purpose and role of unpublished decisions with

regard to the development of state substantive law to the

Washington Supreme Court pursuant to RCW Ch. 2.60.

VII. ARGUMENT

A. This Court should grant review of this appeal pursuant to the collateral order doctrine.

Determination of collateral order jurisdiction is an issue

of law which involves de novo review. United States v. Romero-

Ochoa, 554 F.3d 833, 835(2009).

Under the collateral order doctrine, a litigant may appeal

from a narrow class of decisions that do not terminate the

litigation, but must, in the interest of achieving a healthy


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legal system, nonetheless be treated as final. Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct.

1992; 128 L. Ed. 2d 842 (1994)(quoting Cobbledick v United

States, 309 U.S. 323, 326, 60 S.Ct.540, 84 L.Ed 783 (1940).

[Emphasis Supplied]

To be immediately appealable, a collateral decision "must

conclusively determine the disputed question, resolve an

important issue completely separate from the merits of the

action, and be effectively unreviewable on appeal from a final

judgment." See Copley Press, Inc. v. Higuera-Guerrero (In re

Copley Press, Inc.), 518 F.3d 1022, 1025 (9th Cir. 2008); Does I

thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1066-7

(2000).

In this case the first factor is met because the order in

question conclusively requires Burkart and his attorney to

consider an unpublished case as if it were a part of

Washingtons common law as a condition to the filing of a new

complaint. Moreover, the general practice of the Washington

federal district courts is to treat unpublished Court of Appeals

decisions as precedent; notwithstanding Washington courts have

declared they are not and should not be treated as precedent.

See infra.

The second requirement is met here because the issue of

whether plaintiffs must consider Peterson v. Citibank under the


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constitutional provisions addressed herein in order to re-file

their complaint is a separate issue from the causes of action

the Burkharts wanted litigated in their lawsuit. This appeal

involves an order on its face that directs them to prepare a

complaint based on state law as construed by a judicial

precedent which does not exist. A federal requirement that

litigants and their attorneys rely on unpublished decisions in

preparing complaints asserting state causes of action is a

category of federal court orders which merits immediate

consideration because it encroaches upon federalism, the states

power to make common law, and the Constitutions guarantee of a

republican government. Delaying review of this category of case

until the entry of final judgment would imperil a substantial

public interest and particular values of a high order. Will v

Hallock, 546 U.S. 345, 352-53, 126 S.Ct. 952, 163 L.Ed. 836

(2006). See Parts B, C, and D, infra. The third prong of the collateral order doctrine requires

determining whether the federal district courts order requiring

the consideration of an unpublished opinion will be reviewable

on appeal. Such order will not be reviewable on appeal because

at that point the case will have been resolved and the complaint

will have fallen out of the case with the preparation of the

final pretrial order.


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In addition to the important federal constitutional issues identified above and more fully discussed below, the impact of

federal courts use of nonprecedential opinions has significant

unwanted and unintended consequences on the evolution of

Washington States substantive law because it is the state

Supreme Court which ultimately must construe the meaning of a

state statute. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d

495, 198 P.3d 1021 (2009).

The effect of unpublished decisions has stirred

considerable debate over time. Disputes about judicial

precedent date back to 1700s. Cleveland, David R., Overturning

the Last Stone: The Final Step in Returning Precedential Status

to All Opinions. 10 J. App. Prac. & Process, 61, 115-119 (2009).

This appeal revisits a debate the federal judiciary most

recently engaged in between 2000 and 2006. This appeal requires

this Court review the debate through a reverse prism which

places ultimate value upon Washingtons sovereignty vis a vis

the federal courts power as part of the National government to

appropriately determine state law. In this context the national

government through the federal courts must respect Washingtons

efforts to enforce a substantively identical rule this Court

required be followed until the United States Supreme Court

enacted FRAP 32.1.


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As the judges of this panel might recall in 2000 the Eighth

Circuit held that Courts of Appeals had a constitutional duty to

follow precedent, even if unpublished. Anastasoff v. United

States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.

3d 1054 (8th Cir., 2000). Other Circuits, including this one,

disagreed; declaring that the decision to make precedent is a

matter of judicial policy. See e.g., Hart v. Massanari, 266

F.3d 1155, 1179 (9th Cir. 2001). In response to the Eighth

Circuits decision that even unpublished decisions constitute

precedent Judge Kozinski responded:

Unlike the Anastasoff court, we are unable to find within Article III of the Constitution a requirement that all case dispositions and orders issued by appellate courts be binding authority. On the contrary, we believe that an inherent aspect of our function as Article III judges is managing precedent to develop a coherent body of circuit law to govern litigation in our court and the other courts of this circuit. We agree with Anastasoff that we--and all courts--must follow the law. But we do not think that this means we must also make binding law every time we issue a merits decision. The common law has long recognized that certain types of cases do not deserve to be authorities, and that one important aspect of the judicial function is separating the cases that should be precedent from those that should not. Without clearer guidance than that offered in Anastasoff, we see no constitutional basis for abdicating this important aspect of our judicial responsibility.

Hart v. Massanari, 266 F.3d 1155, 1179 (9th Cir. 2001).

In 2006, the United States Supreme Court prohibited federal

courts of appeal from banning citation to federal court


14

unpublished decisions issued after January 1, 2007. See FRAP

32.1 (added April 12, 2006, eff. Dec. 1, 2006). The rule still

requires that cases decided before that time not be cited. Id.

FRAP 32.1 now states:

[a] court may not prohibit or restrict the citation of federal judicial opinions, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, non-precedential, not precedent, or the like; and (ii) issued on or after January 1, 2007.

FRAP 32.1 (emphasis added).

Ninth Circuit Rule 36-3, now states:

(a) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion. (b) Citation of Unpublished Dispositions and Orders Issued on or after January 1, 2007. Unpublished dispositions and orders of this Court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1.

Fed. Rules of Appellate Procedure Ninth Circuit Rule 36-3 (July

1, 2012)(emphasis supplied).

However, because of the federal nature of our government

FRAP 32.1 and Ninth Circuit Rule 36-3 do not solve the problem

posed in this case when a federal official, i.e. judge, orders

state plaintiffs and their attorney to consider a state Court of

Appeals unpublished decision which purports to alter a clear

holding of the Washington Supreme Court in their favor. Bain,

as the panel knows, is a Washington Supreme Court case


15

construing Washingtons DTA (a state statute relating to the

nonjudicial foreclosure of real estate in Washington and which

was enacted under the provisions of the Washington Constitution)

and Washingtons Consumer Protection Act, RCW Ch. 19.86 (CPA).

In summary, the federal courts order dismissing the

Burkarts complaint without prejudice to the refiling of a

complaint that considers an unpublished and nonprecedential

ruling distinguishing Bain (a Washington Supreme Court decision

in Burkarts favor) involves a collateral order which must be

reviewed to maintain a healthy legal system under the United

States Constitution; a legal system in which the States are

given the power to create and construe state law.

B. The District Courts order requiring the Burkarts and their counsel to consider an unpublished decision distinguishing Washington Supreme Court precedent infringes upon the rights and protections afforded them by the principles of Federalism and Dual Sovereignty inherent in the Constitution.

Federalism, central to the constitutional design, adopts

the principle that both the National and State Governments have

elements of sovereignty the other is bound to respect. Arizona

v. United States, 132 S. Ct. 2492, 2500, 183 L. Ed. 2d 351

(2012). See also, Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.

Ct. 2395, 115 L. Ed. 2d 410 (1991); U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 838, 115 S. Ct. 1842, 131 L. Ed. 2d 881

(1995) (Kennedy, J., concurring). From the existence of two

sovereigns follows the possibility that laws can be in conflict


16

or at cross-purposes. Arizona v. United States, 132 S. Ct. at

2500.

James Madison argued in The Federalist that the division of

power between national and state governments would check abuses

of governmental power. The Federalist No. 51, at 351 (J.

Madison) (J. Cooke ed. 1961). Madison contended that "[i]n the

compound republic of America a double security arises to the

rights of the people. Id. The different governments will

controul each other, at the same time that each will be

controuled by itself." Id.

Thomas Jefferson stated similar beliefs in a letter he

wrote in 1816. See Jones Merritt, D., The Guarantee Clause and

State Autonomy: Federalism For A Third Century, 88 Colum. L. Rev

1, 22 (Jan., 1988)(internal quotations and citations omitted).

In that letter Jefferson wrote:

[T]he way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to . . . . It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best . . . . The elementary republics of the wards, the county republics, the State republics, and the republic of the Union, would form a gradation of authorities, standing each on the basis of law, holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government.

Id.


17

Alexander Hamilton, coauthor of The Federalist, agreed

federalism would restrain governmental tyranny. See The

Federalist No. 28, at 179 (A. Hamilton) (J. Cooke ed. 1961).

Hamilton predicted that dual sovereignty would keep both the

state and federal government in check. He noted that, Power

being almost always the rival of power, the general government

will at all times stand ready to check the usurpations of the

state governments, and these [state governments] will have the

same disposition towards the general government." Id. at 179.

[Emphasis Supplied] Hamilton wrote further and said that [i]t

may safely be received as an axiom in our political system that

the state governments will, in all possible contingencies,

afford complete security against invasions of the public liberty

by the national authority." Id. at 179-80.

Appellant homeowners and their counsel (an officer of the

court) complain here not about the dismissal without prejudice

of their complaint, but only the District Courts order to re-

write their complaint based on consideration of a case that has

no precedential value with regard to state law and reaches a

result inconsistent with Bain and other recent Washington

Supreme Court rulings construing the CPA. See e.g. Klem v.

Wash. Mut. Bank, Supreme Court Cause No. 87105-1 (February 28,

2013); Schroeder v. Excelsior Mgmt. Grp., LLC, Supreme Court

Cause No. 86433-1 (February 28, 2012)(No mention of party being


18

in default to someone, whoever that may be, vitiating the right

to bring CPA claims as is stated in the unpublished and

nonprecedential Peterson Court of Appeals decision.) This

attempt by the federal court to frame the presentation of state

law issues by litigants and counsel is a direct affront on state

sovereignty and states judicial power to control the

development of state substantive law which offends no enumerated

power of the National Government.

While an objection to a federal courts direct instruction

to consider a specific unpublished, nonprecedential state court

of appeals case might seem a little thing to those with national

interests, like federal courts, national banks, servicers, and

stock markets; it is of great concern to local people who see

each day federal courts purporting to enforce the DTA. This

concern is magnified when Washingtons own Supreme Court faults

the federal district courts previous long term construction of

the DTA (which may have resulted in the inappropriate

nonjudicial foreclosure of tens of thousands of homes in

Washington) for failing to even consider the language of the

DTA.6 Bain, 175 Wn.2d at 109-10.

6 Even following Bain, there is evidence that federal courts prefer to follow their own rulings; rather than those enunciated by the Washington Supreme Court. For example, in Bain a unanimous Supreme Court finds federal courts rejection of a show me the note defense unhelpful where judge did not meaningfully consider the specific language of the DTA. See


19

Federalism is more than an exercise in setting the boundary

between different institutions of government for their own

integrity. Bond v. United States, ___ U.S. ___, 131 S. Ct. 2355,

2364, 180 L. Ed. 2d 269 (2011). State sovereignty is not just

an end in itself: 'Rather, federalism secures to citizens the

liberties that derive from the diffusion of sovereign power.'

Id. (Citing, New York v. United States, 505 U.S. 144, 181, 112

S. Ct. 2408, 120 L. Ed. 2d 120 (1992) (quoting, Coleman v.

Thompson, 501 U.S. 722, 759, 111 S. Ct. 2546, 115 L. Ed. 2d 640

(1991) (Blackmun, J., dissenting))). Federalism, by design,

also protects the liberty of all persons within a State by

ensuring that laws enacted in excess of delegated governmental

power cannot direct or control their actions. Bond, at 2364. By

denying any one government complete jurisdiction over all the

concerns of public life, federalism protects the liberty of the

individual from arbitrary power. When government acts in excess

of its lawful powers, liberty (and property) are at stake. Id.

Bain, at 109, which rejects St. John V Nw. Tr. Sevrs., Inc., No.C11-5382BHS, 2011 WL 4543658, 2011 U.S. Dist. Lexis 111690(W.D. Wash. Sept. 29, 2011, Dismissal Order) (unpublished) show me the note analysis. Nonetheless, in Brodie v Northwest Trustee Servs, 2012 U.S. Dist. LEXIS 139451 (E.D. Wash. Sept. 27, 2012) the federal District Court relies on show me the note defense in dismissing claims by borrower that s/he was entitled to disclosure of note owner under RCW 61.24.030 (7)(a) and (8)(l). 6


20

Importantly, when, as here, the constitutional structure of

our Government that protects individual liberty (and property)

is compromised, individuals who suffer otherwise justiciable

injury may object. Id., at 2365. Just as it is appropriate for

an individual, in a proper case, to invoke separation-of-powers

or checks-and-balances constraints, so too may appellants here

challenge a court order issued in contravention of

constitutional principles of federalism. That claim need not

depend on the vicarious assertion of a State's constitutional

interests, even if a State's constitutional interests are, as

here, also implicated. Id. See also infra.

Furthermore, by design the principles of limited national

powers and state sovereignty are intertwined. Id., at 2366.

While neither principle originates in the Tenth Amendment, both

are expressed by it. Id. Impermissible interference with state

sovereignty relating to a judicial policy similar to one that

this Circuit claimed for itself in Hart v. Massanari, supra, is

not within the enumerated powers of the National Government.

The District Courts action, i.e. order, exceeds the National

Government's enumerated powers with regard to its own Courts and

therefore undermines the sovereign interests of States in

creating their common law and laws with regard to interpreting

state statutes. Cf. Bond, at 2364 (citing, New York, 505 U.S.

144, 155-159, 112 S. Ct. 2408, 120 L. Ed. 2d 120; United State


21

v. Lopez, 514 U.S. 549, 564, 115 S. Ct. 1624, 131 L. Ed. 2d 626

(1995)). Federal courts have no power to create state or

federal common law; yet appear to be successfully attempting to

determine the common law of Washington and other states with

regards to interests in land; which has generally been conceded

to be an area of state concern. Louisiana Power & Light Co. v.

Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959);

Cf. Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L.

Ed. 1424 (1943).

In summary, the principles of federalism and dual

sovereignty require the federal courts to follow state law with

regard to the citation of unpublished state Court of Appeals

decisions. There is no enumerated power in the federal

constitution or inherent power in the national government that

allows federal courts to invade a state prerogative as a

sovereign to declare how its own common law should evolve.

Where, as here, Washington has provided federal courts with

ready access to the Supreme Court for clarification of state law

issues, see RCW 2.06 Ch, federal courts should not rely upon

decisions which the state Court of Appeals has determined have

no precedential value, to determine the meaning of state

statutes or chart new areas of Washington common law.


22

C. The federal district courts order requiring appellants to consider an unpublished decision as if it were part of Washingtons common law creates federal common law in derivation of the United States Constitution

The appropriateness of a district judge's order to

consider an unpublished decision of the Washington Court of

Appeals decision distinguishing Bain under the Constitution is a

question of law, with respect to which this Court exercises de

novo review. Salve Regina College v. Russell, 499 U.S. 225, 111

S. Ct. 1217, 113 L. Ed. 2d 190 (1991).

Requiring consideration of unpublished, nonprecedential

opinions from the Court of Appeals in Washington in

contradiction of Washington General Rule 14.1 is a direct

imposition by the federal government on the development of

Washington substantive law. This is because once the Washington

Supreme Court determined how the DTA and CPA applied to MERS

four party deed of trust nonjudicial foreclosures, this

construction related back to the time of the statute's

enactment. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d at

506.

It is not only the responsibility of litigants and their

counsel to respect the Washington Supreme Courts authority

within the sovereign state of Washington; but also that of all

federal courts. See e.g., Huddleston v. Dwyer, 322 U.S. 232,

64 S.Ct. 1015, 88 L.Ed. 1246 (1944)(Federal courts are bound to


23

follow the decisions of the highest court of the state.); Lehman

Bros. v Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L. Ed.

215 (1974)(Certifying issue of state law Supreme Court of

Florida for definitive determination of applicable state law.)

See also Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S. Ct.

817, 82 L. Ed. 1188 (1938).

In Erie the Supreme Court acknowledges there is no Federal

common law. Id. at 78. Unless a matter is governed by the

Federal Constitution or by Acts of Congress, State law should be

applied to the facts of a case. Id. Whether the law of the State

has been declared by its Legislature or its highest court is not

a matter of federal concern. Id. Congress has no power to

declare substantive rules of common law applicable in a State

whether they be local in their nature or general. Id. Even more

salient to the matter at hand is that no clause in the Constitution purports to confer such a power upon the federal courts. Id. (emphasis supplied). Similarly, Federal courts, when deciding a case based on state

law, should follow the state law regarding citation of

unpublished decisions in the same manner as they would follow

any other State law affecting the substantive meaning of the

legislature. Under its General Rules, Washington, whose laws are

to be construed here, has made a choice to restrict the

development of its common law by its courts to a consideration


24

of only those cases where a panel of state Court of Appeals

Judges determine to publish a decision under the following

criteria:

(1) Whether the decision determines an unsettled or

new question of law or constitutional principle;

(2) Whether the decision modifies, clarifies or

reverses an established principle of law;

(3) Whether a decision is of general public interest

or importance; or

(4) Whether a case is in conflict with a prior opinion

of the Court of Appeals.

Wash. Rules of Appellate Procedure 12.3(d).

If the panel has not made a determination of precedential

value, then the case, matter or opinion is not to be cited as

authority as to the meaning of state law. See Wash. General Rule

14.1(a). Here, a court ordering plaintiffs and/or their attorney

to consider an unpublished opinion for purposes of filing a

complaint alleging Washington State causes of action involves

the federal court in impermissible development of Federal Common

Law relating to the statutes of a sovereign state.

If the federal court does not follow existing State law as

determined by precedent, but can cite to nonprecedential

opinions to influence the development of State law, then the

substantive law applied to a case may differ based on the venue


25

and the notions of a federal judge who has not been elected, as

are state judges, about what the common law of Washington should

be and how Washington statutes are construed.

Attempts by federal district courts with jurisdiction over

Washington State to dictate the development of state law in this

area is confusing for state residents, expensive for state

residents, and creates a plethora of problems in the lives of

everyday homeowners and their families. The evolution of the

substantive law involving issues relating to a states policy

interests in judicial decisions which affect land should not be

done by the federal government through that judiciarys

creation of state common law or interpretation of state

statutes.

If state law is not clear, federal district judges should

consider certification to the Washington Supreme Court for

answers. See Parents Involved Cmty. Schs v. Order Seattle Sch.

Dist.,294 F.3d 1085, 1086 (2002). Federal courts should not lay

the burden of clarifying the meaning of nonprecedential state

decisions upon the litigants and their counsel. If the federal

district court here really wanted consideration of a the value

of a nonprecedential, unpublished that federal court should have

certified its questions under RCW 2.06 Ch.


26

D. The Guarantee Clause of the United States Constitution guarantees a republican form of government to the states and not following state law as it has been construed by the states highest court inhibits Washingtons rights to self government by a republican form of government. U.S. Const. art. IV, 4 states that the United States

pledges to . . . guarantee to every State in this Union a

Republican Form of Government . . . . The preservation of the

States, and the maintenance of their governments, are as much

within the design and care of the Constitution as the

preservation of the Union and the maintenance of the National

Government." Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869).

Each of the states is "endowed with all the functions essential

to separate and independent existence." Id. (quoting County of

Lane v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869)) Further, "[t]he

Constitution, in all its provisions, looks to an indestructible

Union, composed of indestructible States." Texas v. White, 74

U.S. (7 Wall.) at 725. The principal role of independent state governments is to check the power of the federal government. The most obvious meaning of the language in the guarantee

clause is that the United States promises to secure each of the

states the autonomy necessary to maintain a republican form of

government. Jones Merritt, D., The Guarantee Clause and State

Autonomy: Federalism For A Third Century, 88 Colum. L. Rev 1, 22

(Jan., 1988). The guarantee clause, therefore, provides an


27

essential constitutional limit on federal interference with

state autonomy. Id., at 22-23. Both the language and the history

of the guarantee clause are consistent with this interpretation.

Id., at 23.

1. What is a republican form of government Widespread agreement exists among scholars and jurists

about the core meaning of republican government. Since at least

the 1700s, political thinkers have stressed that a republican

government is one in which the people control their rulers. See,

e.g., J. Locke, Second Treatise of Government 149 (C.B.

Macpherson ed. 1980) (6th ed. London 1764) (the people retain

the supreme power to alter legislative acts when the government

acts contrary to the ends for which government has been

established); id. at 222 (the power to choose representatives

is reserved in the people). See generally W. Everdell, The End

of Kings (1983) (tracing the history of the republican tradition

of government from its early Biblical and Homeric roots to the

present day).

James Madison authored that a republic is "a government

which derives all its powers directly or indirectly from the

great body of the people." The Federalist No. 39, at 251 (J.

Madison) (J. Cooke ed. 1961); see also, The Federalist No. 10,

at 62 (J. Madison) (J. Cooke ed. 1961) (The main character of a

republic is "the delegation of the Government . . . to a small


28

number of citizens elected by the rest"); The Federalist No. 37,

at 234 (J. Madison) (J. Cooke ed. 1961) ("The genius of

Republican liberty, seems to demand on one side, not only that

all power should be derived from the people; but, that those

entrusted with it should be kept in dependence on the people . .

. .").

Alexander Hamilton acknowledged that the "fundamental maxim

of republican government . . . requires that the sense of the

majority should prevail." The Federalist No. 22, at 139 (A.

Hamilton) (J. Cooke ed. 1961); see also, The Federalist No. 57,

at 384 (J. Madison or A. Hamilton) (J. Cooke ed. 1961) ("The

elective mode of obtaining rulers is the characteristic policy

of republican government.").

Charles Pinckney told the members of the ratifying

convention for South Carolina that a republic was a form of

government in which "the people at large either collectively or

by representation, form the legislature." 4 Debates in the

Several State Conventions on the Adoption of the Federal

Constitution 328 (J. Elliot ed. 1881); see also, 3 Elliot's

Debates, at 396 (Patrick Henry to ratifying convention of

Virginia's) ("The delegation of power to an adequate number of

representatives, and an unimpeded reversion of it back to the

people, at short periods, form the principal traits of a

republican government.").


29

Thomas Jefferson assured Congress during his first

inaugural address that "absolute acquiescence in the decisions

of the majority" is "the vital principle of republics." First

Inaugural Address by President Thomas Jefferson (Mar. 4, 1801),

reprinted in, 1 The Founders' Constitution, at 140, 141; see

also, Van Sickle v. Shanahan, 212 Kan. 426, 443, 511 P.2d 223,

237 (1973) (Framers spent little time discussing "the elements

of a republican form of government" because "there existed no

substantial disagreement between the Founding Fathers as to the

republican concepts upon which the government was to be

patterned"); Letter from Benjamin Rush to John Adams (July 21,

1789) ("[W]hen I speak of a republic I mean a government

consisting of three branches, and each derived at different

times and for different periods from the PEOPLE"), reprinted in,

1 The Founders' Constitution 142, 138 (P. Kurland & R. Lerner

eds. 1987); Brutus I, New York Journal, (Oct. 18, 1787)("In a

free republic, . . . all laws are derived from the consent of

the people . . . ."), reprinted in, 13 The Documentary History

of the Ratification of the Constitution and the Bill of Rights

411, 418 (M. Jensen, J. Kaminski, G. Saladino & R. Leffler eds.

1976-86);

Political theorists often identify republican government

with representative government. That is, the citizens of a

republic elect representatives who enact laws; they do not


30

govern through popular referenda. See, e.g., The Federalist No.

10, at 62-64 (J. Madison) (J. Cooke ed. 1961); J. Adams,

Defence of the Constitutions of Government of the United States

(1787), reprinted in, 1 The Founders' Constitution, at 119.

Importantly the use of representatives does not undermine the

fundamental point that all governmental power in a republic

derives from the people.

In the beginning of our republic Supreme Court decisions

offered a similar view of what a republican government is. In

1793, Associate Justice Wilson declared that a "short

definition" of a republican government is constructed on the

principle that that the Supreme Power resides in the body of

the people." Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 457

(1793) (opinion of Wilson, J.). Almost a century later, a

unanimous Supreme Court declared that "the distinguishing

feature" of a republican form of government "is the right of the people to choose their own officers for governmental administration, and pass their own laws." In re Duncan, 139 U.S. 449, 461 (1891)(emphasis supplied); see also, Minor v.

Happersett, 88 U.S. (21 Wall.) 162, 175-76 (1875) (the pervasive

pattern of popular participation in all state governments

existing at the time the Constitution was adopted provides

"unmistakable evidence of what was republican in form, within

the meaning of that term as employed in the Constitution").


31

Further, the Supreme Court agreed when it restated "[a]

distinguishing feature of [a republican form] of government is

that the people . . . have the right to choose their own

officials for governmental affairs and enact their own laws

pursuant to the legislative power reposed in representative

bodies." Baker v. Carr, 369 U.S. 186, 222, (1962) (Douglas, J.,

concurring)(citing, In re Duncan, 139 U.S. 449, 461, 11 S. Ct.

573; 35 L. Ed. 219 (1890)).

2. The Federal Governments instruction, through a federal judge, to consider a nonprecedential Court of Appeals decision that attempts to distinguish the Washington State Supreme Courts decision in Bain, where the federal government had no constitutional power to do so, harms the Constituions guarantee to a republican form of government. In this case a federal district court, deciding an issue of

state law, must follow state law for all parts of the decision

making process including reviewing the initial complaint.

Failure to do so interferes with the republican form of

government that Washington state is guaranteed by the United

States constitution. This is because the state officials and

judges who have made the laws regarding the citation of

unpublished cases are elected by the people of Washington.

Federal Judges are not elected by the people of Washington. If

an unelected Federal Judge, orders a citizen and his lawyer to

not follow valid laws enacted through processes determined by a

republican form of government, then such order infringes upon


32

the constitutional right and guarantee to certain laws free from

Federal influence.

E. This Court should certify the following question (or some variation thereof) to the Washington Supreme Court for review:

Does the Supreme Court contemplate that federal district courts will consider and cite to unpublished state Court of Appeals opinions when attempting to adjudicate the meaning of statutes which have not been resolved by the Supreme Court?

While all federal courts must consider the appropriateness

of certifying issues of state law to the states highest court

for resolution, the ultimate discretion to do so rests within

the sound discretion of the federal court. Lehman Bros. v

Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L. Ed. 215

(1974); Parents Involved Cmty. Schs v. Order Seattle Sch. Dist.,

294 F.3d 1085, 1086 (2002).

Federal courts were very slow in certifying issues arising

pursuant to the DTA and CPA to the Washington Supreme Court. As

the Washington Supreme Court noted in Bain the federal courts

analysis of Washingtons DTA was unhelpful because its judges

did not undertake any meaningful analysis of the DTA statute.

See Bain, 175 Wn.2d at 105-06 & 109.

Bain has not been embraced by federal courts or state 7

courts of appeal. Shepards indicates it has only been followed

7 Shepards reports that in Mickelson v. Chase Home Fin. LLC, 2011 U.S. Dist. LEXIS 131818 one federal District Court took the unusual step of criticizing the Supreme Courts ruling in Bain


33

5 times. Two of these cases were decisions handed down by the

Supreme Court itself on February 28, 2013 in Klem, supra, and

Schroeder, supra. Strangely, another case reported as following

Bain was the decision below, which also embraced Peterson, which

was one of the five cases Shepards reports as distinguishing

Bain. In any event, review of the cases citing Bain does not

suggest that federal courts have been prone to follow it in most

of the 20 Washington federal district courts which have cited

it.

As previously stated, Homeowners Attorneys are a group of

attorneys who follow foreclosure issues and filed an amicus

brief urging the Washington Supreme Court to accept review in

Grant v Horizon Loans, supra. In that brief, this attorney

group argued:

Homeowners Attorneys are concerned that Bain is not properly being applied as precedent by Washington Courts and Federal District Courts located in Washington. See e.g. Burkart v Mortgage Elec. Registration Sys., 2012 U.S. Dist. Lexis 1404794 (W.D. Wash. September 28, 2012). See also Brodie v Northwest Trustee Servs, 2012 U.S. Dist. LEXIS 139451 (E.D. Wash. Sept. 27, 2012). This problem is exacerbated by decisions construing first impression issues, like those involved here, being deemed not precedential by the COA as such unpublished decisions are later being cited by U.S. District courts as being representative of Washingtons common law. [citations omitted]. (Emphasis Supplied)

before it was handed down and then arguably decided not to follow it. Mickelson is currently on appeal to this Court.


34

In Grant Homeowners Attorneys asked the Supreme Court to

review the Court of Appeals decision not to publish its

decision as it resolved matters of first impression. Homeowners

Attorneys argued the Courts decision not to publish in Grant

facially violated RAP 12.3(d), supra.

The problems appellants face in this case resulting from

the federal government directing them to consider unpublished

decisions are made worse by the fact that Courts of Appeal do

not routinely publish decisions which resolve first impression

legal issues even though they appear instructed to do so by RAP

12.3(d) and (e). Thus, to the extent the Court of Appeals is

deciding first impression issues of state law without taking the

time to determine how the resolution should affect people as

precedent they abdicate the construction of state statutes to

the Washington Supreme Court. This is problematic to

federalism, common law, and guarantee clause issues identified

above.

Given the paradoxical nature of the problems and the

supremacy of the Washington Supreme Court to resolve the

procedures by which the states substantive law should be

construed, it makes sense to ask the Washington Supreme Court to

rule with regard to the role unpublished, nonprecedential

decisions should play with regard to the evolution of Washington


35

common law by federal courts. Lehman Bros. v Schein, surpa.;

Parents Involved Cmty. Schs v. Order Seattle Sch. Dist., supra

at 1086 (2002) ([W]e have an obligation to consider whether

novel state-law questions should be certified - and we have been

admonished in the past for failing to do so.)

VIII. CONCLUSION

This Court should grant review of the order dismissing the Burkarts complaint without prejudice under the collateral

order doctrine.

This Court should hold that the District Courts order

violated the principles of federalism, Washingtons sovereignty

with regard to the creation of its own common law, and the

Guarantee Clause of the United States Constitution.

This Court should certify the issue as to how Federal

District Courts should treat unpublished nonprecedential

opinions of the Court of Appeals when trying to discern the

meaning of Washington substantive law.

IX. REQUEST FOR ORAL ARGUMENT

Appellant Requests Oral Argument.


36

DATED March 4, 2013

STAFNE LAW FIRM

By:/s/Scott E. Stafne Scott E. Stafne Attorneys for Appellants

By:/s/ Joshua B. Trumbull Joshua B. Trumbull Attorneys for Appellants


37

Certificate of Compliance with typeface and length limitations, FRAP 28.1 & 32(a)(7)

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate

Procedure, the foregoing brief is in 12-Point Courier New

monotype spaced and contains 8,060 words and thus is in

compliance with the type-volume limitation set forth in Rule

32(a)(7)(B) of the Federal Rules of Appellate Procedure.

DATED March 4, 2013

STAFNE LAW FIRM

By:/s/Scott E. Stafne Scott E. Stafne Attorneys for Appellants

By:/s/ Joshua B. Trumbull Joshua B. Trumbull Attorneys for Appellants


STATEMENT OF RELATED CASES

Appellants are unaware of any related cases pending in this Court.


CERTIFICATE OF SERVICE I hereby certify that on March 4, 2013, I electronically

filed the foregoing with the Clerk of the Court for the United

States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system.

I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the

appellate CM/ECF system.

/s/Simone Cintron Simone Cintron


NO. 12-35886

United States Court of Appeals for the Ninth Circuit

HERBERT BURKART, individually; TANJA M BURKART, individually and

the marital community thereof and SCOTT E. STAFNE,

Plaintiffs-Appellants,

v.

GLOBAL ADVISORY GROUP, INC., a Washington corporation,

Defendant,

and

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation; BAC HOME LOANS SERVICING, LP, a foreign corporation;

BANK OF AMERICA NA, a national bank; BANK OF AMERICA CORPORATION, a Delaware corporation; COUNTRYWIDE FINANCIAL

CORPORATION, a Delaware corporation; COUNTRYWIDE HOME LOANS, INC., a New York corporation; LINDA GREEN DOES 1-10,

Defendants-Appellees. _____________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE, NO. CV-01921-RAJ


EXCERPTS OF RECORD Volume 1 of 2 (Pages 1 to 14)

STAFNE LAW FIRM

Attorneys for Plaintiffs-Appellants 17207 155th Avenue NE Arlington, Washington 98223 (360) 403-8700


TABLE OF CONTENTS

District Court Docket Entry

Description

Volume 1 of 2

Page

22 Order Dismissing Complaint for Failure to Prosecute, filed October 30, 2012 ................................................................................... 1

18 Order Dismissing Complaint, filed September 28, 2012 ....................... 3

Volume 2 of 2

23 Amended Notice of Appeal, filed October 31, 2012 ............................. 15

20 Notice of Appeal, filed October 25, 2012 .............................................. 17

10 Amended Complaint, filed December 16, 2011 .................................... 19

Appendix 1 to Complaint .......................................................... 70

Appendix 2 to Complaint .......................................................... 72

District Court Docket Entries ............................................................... 76


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Case 2:11-cv-01921-RAJ Document 22 Filed 10/30/12 Page 1 of 2


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

HERBERT BURKART, et al.,

Plaintiffs, CASE NO. Cll-1921RAJ

v. ORDER

MORTGAGE ELECTRONIC 12 REGISTRATION SYSTEMS, INC., et al.,

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On September 28, the court granted Defendants' motion to dismiss Plaintiffs'

complaint, but granted Plaintiffs leave to file an amended complaint. The court's order

did not grant final relief on any aspect of Plaintiffs' claims. The order concluded with

instructions for Plaintiffs to file an amended complaint by October 26,2012, or the court

would dismiss the case without prejudice for failure to prosecute. On October 25, Plaintiffs filed a notice of appeal. Although a notice of appeal

ordinarily divests the district court of jurisdiction, that general rule does not apply where a purported appeal is from an order that is not appealable. Estate of Conners v. O'Connor, 6 F.3d 656,658 (9th Cir. 1993). An order dismissing a complaint with leave to amend is not appealable. WMXTechs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997).

ORDER-l

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Plaintiffs have not filed an amended complaint in accordance with the court's

September 28 order. The court accordingly dismisses this case without prejudice for failure to prosecute.

DATED this 30th day of October, 2012.

ORDER-2

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The Honorable Richard A. Jones United States District Court Judge


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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

HERBERT BURKART, et ai.,

Plaintiffs,

v.

MORTGAGE ELECTRONIC

CASE NO. C11-1921RAJ

ORDER

12 REGISTRATION SYSTEMS, INC., et aI.,

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I. INTRODUCTION This matter comes before the court on Defendants' motion to dismiss Plaintiffs'

complaint. Dkt. # 11. Although Plaintiffs requested oral argument, the court finds oral

argument unnecessary in light of its disposition today. For the reasons stated below, the

court GRANTS the motion to dismiss, but grants Plaintiffs leave to amend their

complaint in accordance with this order. Plaintiffs must file their amended complaint no

later than October 26,2012.

II. BACKGROUND The court describes the facts underlying this case as Plaintiffs allege them in their

operative complaint. Dkt. # 10. The court uses bare '11" symbols to cite their complaint and "Ex." to cite the exhibits they attached to it.

In February 2007, Plaintiffs Herbert and Tanya Burkart borrowed $600,000 to purchase or refinance a home on Camano Island in Washington. They borrowed the

ORDER-I

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4Case 2:11-cv-01921-RAJ Document 18 Filed 09/28/12 Page 2 of 12

1 money from Global Advisory Group Inc. ("Global"), and signed a note reflecting their 2 agreement to repay Global at an adjustable interest rate initially set at 6.125%. Ex. 1. As 3 with most residential property transactions in Washington, Global secured the note with a

4 deed of trust. Like many deeds of trust in Washington, the Burkarts' deed of trust named

5 Mortgage Electronic Registration Systems, Inc. ("MERS"), as the beneficiary. Ex. 2. 6 Not long after the Burkarts signed the note, they learned that either the note itself

7 or the loan servicing rights had passed to Countrywide. , 4.8. Countrywide was once a

8 collection of entities in the business of making and servicing home loans. Bank of

9 America, N.A., or perhaps one of its subsidiaries, acquired Countrywide in 2008,

10 assuming responsibility for its loans. For purposes of this order, the court will refer

11 collectively to the Countrywide and Bank of America entities as "BofA".! The Burkarts

12 make little effort to distinguish between them, and the court discerns no difference that is

13 material to this order.

14 In October 2008, the value of the Burkarts' home dropped and they called BofA to

15 request a loan modification. ~ 4.13. They assert that a BofA representative advised them 16 that BofA could not modify their loan unless they missed payments, and advised them to

17 skip payments in order to qualify for a loan modification. , 4.1. The Burkarts complied.

18 BofA negotiated a loan modification with them, but also moved to declare their loan in

19 default. ~ 4.14 & Appx. 1. By August 20, 2009, BofA had issued a notice that it was 20 exercising its "acceleration" right under the note-demanding immediate payment of the

21 outstanding principal on the loan. But just seven days later, BofA offered the Burkarts a 22 loan modification.

23 Unfortunately, the loan modification would have increased the Burkarts' monthly

24 payment obligation. They declined to accept it, and entered another round of

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1 For the record, the Countrywide entities are Countrywide Financial Corporation and Countrywide Home Loans, Inc.; the Bank of America entities are BAC Home Loans Servicing, LP, Bank of America Corporation, and Bank of America, N.A. ORDER-2

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negotiations with BofA. ~ 4.15 & Appx. 2. While negotiations were ongoing, BofA

issued another acceleration notice in December 2009. By May 2010, BofA offered

another loan modification. Again, the payments were higher than the Burkarts preferred,

but they agreed to the loan modification in June 2010. By mid-2011; the Burkarts had

again fallen behind in payments. ~ 4.17. BofA issued another acceleration notice in

September 2011. ~ 4.18. Throughout the Burkarts' lengthy negotiations with BofA, they incurred late charges and other fees in addition to the principal and interest on the note.

The Burkarts sued in Island County Superior Court In October 2011. They

initially sued Global, MERS, BofA (three Bank of America entities and two Countrywide entities), and a host of unnamed individual defendants who allegedly had some role in these events.2 Defendants removed the case here, invoking the court's diversity

jurisdiction. Defendants contended that Global, the only Washington resident among them, had been fraudulently joined. The Burkarts voluntarily dismissed their claims against Global. The parties agreed to permit the Burkarts to file an amended complaint.

The result of the parties' agreement was a 56-page complaint (including two "appendixes" with additional allegations) that incorporated more than 400 pages of exhibits. Defendants now move to dismiss that complaint

III. ANALYSIS Defendants invoke Fed. R. Civ. P. l2(b)(6), which permits a court to dismiss a

complaint for failure to state a claim. The rule requires the court to assume the truth of

the complaint's factual allegations and credit all reasonable inferences arising from its

allegations. Sanders v. Brown, 504 F.3d 903,910 (9th Cir. 2007). The plaintiff must point to factual allegations that "state a claim to relief that is plausible on its face." Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is "any set of facts consistent with the allegations in the

2 So far as the record reveals, the Burkarts have never served any individual defendant. None of them have appeared in this action. ORDER-3

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6Case 2:11-cv-01921-RAJ Document 18 Filed 09/28/12 Page 4 of 12

1 complaint" that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 2 662,679 (2009) ("When there are well-pleaded factual allegations, a court should assume 3 their veracity and then determine whether they plausibly give rise to an entitlement to

4 relief."). The court typically cannot consider evidence beyond the four comers of the 5 complaint, although it may rely on a document to which the complaint refers ifthe

6 document is central to the party's claims and its authenticity is not in question. Marder v.

7 Lopez, 450 F.3d 445,448 (9th Cir. 2006). The court may also consider evidence subject 8 to judicial notice. United States v. Ritchie, 342 F.3d 903,908 (9th Cir. 2003). 9 Defendants make a concerted effort to decipher the Burkarts' complaint in an

10 effort to show that it does not plausibly allege any claim upon which the court can grant

11 relief. They succeed in some respects and fall short in others, but that is more the result

12 of the Burkarts' muddled pleading than anything else. The trouble with the Burkarts'

13 complaint is not merely that it fails to plausibly allege claims upon which the court can

14 grant relief, it is that no reasonable attorney could understand most of the claims the

15 Burkarts are attempting to allege. Although the complaint suffers from implausibility, it

16 suffers at least as much from incomprehensibility. The Federal Rules of Civil Procedure

17 require a "short and plain statement of the claim showing that the pleader is entitled to

18 relief .... " Fed. R. Civ. P. 8(a)(2). The Burkarts' complaint does not meet this standard. 19 The only other court in this District to address a similar lawsuit from the Burkarts'

20 counsel has also struggled with counsel's "[s]hotgun-style pleadings." See Mickelson v. 21 Chase Home Finance LLC, No. ll-1445M1P, (Dkt. # 58) at 11 (Apr. 16,2012 order 22 granting motion to dismiss). In Mickelson, the court decried counsel's "sprawling" and 23 "hard-to-follow" complaint, pointed out "unintelligible" allegations, and dismissed

24 several claims where counsel's pleadings made the court "unable to comprehend the[ir] 25 nature." Id. at 3-4, 9-11. Counsel is beginning to compile an unenviable track record,

26 one that the

Documents

Dkt-7.1-03.04.2013-Opening-Brief1