July 2008

Washington State Supreme Court Rated #2

A recent analysis reveals it is the nation's second most influential state high court

by Tim Fuller

A recent article in the University of California Davis Law Review analyzes how often state supreme court opinions have been followed in other jurisdictions.1 The article concludes that the Washington State Supreme Court is the second most influential state high court in the nation, behind only the California Supreme Court.

To determine the influence of a court's opinions, the article's authors obtained data from the Shepard's Citations Service and counted the number of cases that have been "followed" in other jurisdictions. The Shepard's "followed" designation means that an opinion has been cited and relied on "as controlling or persuasive authority."2

The data examined are voluminous: "nearly 24,400 state high court decisions that were followed at least once, and most only once, by out-of-state courts during the sixty-six years under review."3 The resulting citation analysis provides an objective measure of the extra-jurisdictional significance of the opinions of all 50 states' high courts.

Based on the Shepard's data, the Washington Supreme Court ranked in second place in every category measured:

• Decisions followed at least once by an out-of-state court from 1940 through 2005
• Decisions followed three or more times by out-of-state courts from 1940 through 2005
• Decisions followed five or more times by out-of-state courts from 1940 through 2005
• Decisions followed three or more times by out-of-state courts from 1986 through 2005
• Decisions followed five or more times by out-of-state courts from 1986 through 2005

The article offers the following hypotheses for Washington's production of more followed decisions than the highest court of every other state except California:

In some ways, the results for Washington defy the state's demographics, given its smaller population base and correspondingly smaller court system, as compared to California and many other states. We found, however, that Washington employs appellate practices that produce a focused review selection process. Moreover, Washington requires by statute [RCW 2.06.040] that intermediate appellate dispositions be made by written opinions with reasons stated, and Washington's Supreme Court, similar to California's, utilizes a professional central staff of attorneys to carefully scrutinize petitions for review of underlying intermediate appellate opinions.4

The following Washington cases have been followed six or more times:

• 16 times: State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994) — rejecting constitutional challenges to the sex offender registration statute; majority by Guy, J.
• Eight times: Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wn.2d 50, 882 P.2d 703 (1994) — construing an insurance policy's pollution exclusion; lead opinion by Brachtenbach, J.
• Seven times: State v. Barefield, 110 Wn.2d 728, 756 P.2d 731 (1988) — construing the Interstate Agreement on Detainers as applied to sentencing; opinion by Dore, J.
• Six times: Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 881 P.2d 986 (1994) — analyzing the scope and applicability of the economic loss rule; opinion by Guy, J.
• Six times: Pappas v. Holloway, 114 Wn.2d 198, 787 P.2d 30 (1990) — discussing the applicability and waiver of the attorney-client privilege in attorney malpractice actions; opinion by Dolliver, J.
• Six times: State v. Cauthron, 120 Wn.2d 879, 846 P.2d 502 (1993) — analyzing the admissibility of DNA evidence; majority by Durham, J.5

The article mentions the Washington State Supreme Court favorably in several places:

• "Our results also show that in recent decades some of the previously highest-ranked state high courts have been eclipsed by other courts such as the Supreme Court of Washington."6
• "[T]he Supreme Court of Washington has produced a high number of followed decisions, disproportionate to its population."7
• "In our more recent data based on followed cases, Washington has become the dominant second-ranked court, with Arizona, New Jersey, and Kansas in the next positions."8
• "[S]ome . . . states [other than California], most notably Washington, appear to have gained sway while yet other traditionally influential jurisdictions have become less so."9

Since both of the article's authors are on the California Supreme Court staff, their likely purpose in analyzing the data was to document the preeminence of their court. They had no stake in the rankings of other courts, and no doubt they were surprised to discover that the Washington State Supreme Court has been more influential than the high courts of far larger states. Washington attorneys are probably far less surprised.

Tim Fuller is reporter of decisions of the Washington State Supreme Court.

NOTES
1. Dear, Jake and Jessen, Edward W., "Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. Davis Law Review 683 (2007).
2. Dear and Jessen, supra at 690 (quoting Shepard's internal, unpublished manual for its attorney editors).
3. Dear and Jessen, supra at 693.
4. Dear and Jessen, supra at 704 n.55.
5. Raw data of "followed" cases provided to the author by Edward W. Jessen, California reporter of decisions.
6. Dear and Jessen, supra at 683.
7. Dear and Jessen, supra at 709 n.87.
8. Dear and Jessen, supra at 697.
9. Dear and Jessen, supra at 710.