                                                                  FILED

                                                            MAR 07, 2013

                                                     In the Office of the Clerk of Court
                                                   W A State Court of Appeals, Division III

         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

EAST VALLEY SCHOOL DISTRICT                    )          No. 29757-8-111
NO. 90,                                        )
                                               )
                            Petitioner,        )
                                               )
         v.                                    )          PUBLISHED OPINION
                                               )
MICHELE TAYLOR,                                )
                                               )
                            Respondent.        )

       KORSMO,   C.J. - Yakima's East Valley School District No. 90 (EVSD) asks this

court to grant a constitutional writ of certiorari to review the decision of an administrative

hearing officer or in the alternative to remand the case for the superior court to decide

whether it will do so. Because the Court of Appeals does not have the power to issue a

constitutional writ of certiorari, we remand to superior court.

                                          FACTS

       On June 10,2009, EVSD placed Michele Taylor, a high school teacher, on paid

administrative leave after receiving allegations that she communicated with a minor

student for immoral purposes and had sexual intercourse with another minor student.
No. 29757-8-II1
E. Valley Sch. Dist. v. Taylor

Based on this information and subsequent investigation, criminal charges were filed

against Ms. Taylor. After a two-week trial, a jury acquitted her of all charges.

       Despite the acquittal, EVSD served Ms. Taylor with a notice of probable cause to

terminate her employment based on the same allegations and other alleged policy

violations. EVSD alleged that it had probable cause to terminate Ms. Taylor's

employment because of excessive and inappropriate text messaging with the two

students, inappropriate counseling/mentoring of one of these students, sexual misconduct

with the other student, and one-time provision of medication (Ibuprofen) to this other

student, all of which EVSD argued were in violation of established district policies.

       Ms. Taylor challenged the allegations and took the matter to an administrative

hearing officer. After a week-long hearing and briefing by the parties, the hearing officer

issued a 44-page decision finding each ofEVSD's allegations to be either a remediable

deficiency or unsupported by a preponderance of the evidence. The hearing officer then

ordered EVSD to reinstate Ms. Taylor.

       EVSD then sought review in the Yakima County Superior Court under a statutory

writ of certiorari, RCW 7.16.040. The superior court dismissed the request, ruling that

RCW 28AA05.320 does not permit EVSD to seek statutory review of the hearing

officer's decision. EVSD timely appealed to this court, but after the briefing was filed,

the Supreme Court definitively held that RCW 28AA05.320 does not permit review

under RCW 7.16.040. Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 768, 261
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E. Valley Sch. Dist. v. Taylor

P.3d 145 (2011). With its appeal mooted, EVSD sought and was granted leave to amend

its briefing. It then requested this court to issue a constitutional writ of certiorari.

         While reviewing EVSD's new request, this court questioned whether the

constitution granted us the power to issue a writ of certiorari. We then directed the

parties to file supplemental briefs. Both parties agreed that this court does not have the

power to grant the requested relief and asked that the case be remanded to superior court.

                                         ANALYSIS

         The sole issue remaining in this case is whether this court has constitutional

authority to issue a writ of certiorari. We agree with the parties that we do not have that

power.

         The state of Washington is a sovereign political body imbued with plenary power.

Bellevue School Dist. v. E.S., 171 Wn.2d 695, 713, 257 P.3d 570 (2011); State v. Foster,

135 Wn.2d 441, 458-59,957 P.2d 712 (1998). Our constitution, however, acts to limit

that power. State v. Gunwall, 106 Wn.2d 54,62, 720 P.2d 808 (1986) (the Washington

Constitution "serves to limit the sovereign power which inheres directly in the people and

indirectly in their elected representatives"). In accordance with this structure, our

Supreme Court has held time and again that the branches of state government can only

act according to the constitution's express and implied powers. See, e.g., City ofSeattle

v. McKenna, 172 Wn.2d 551, 557, 259 P.3d 1087 (2011) ("Importantly, there are no

common law or implied powers of the attorney general under our constitution. This court
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No. 29757-8-II1
E. Valley Sch. Dist. v. Taylor

has always insisted on finding an enumerated constitutional or statutory basis for the

powers of executive officers, including the attorney general."); Gerberding v. Munro, 134

Wn.2d 188, 949 P .2d 1366 (1998) (holding that the legislative power does not extend to

setting qualifications for elected office in the absence of an express grant of power by the

constitution); N. Bend Stage Line, Inc. v. Dep 't ofPub. Works, 170 Wash. 217, 226-27,

16 P.2d 206 (1932) (holding that the Supreme Court can only exercise jurisdiction as

enumerated in Const. art. IV, § 4). Accordingly, we must look to the text of the

constitution to determine our jurisdiction.

       Our constitution states: "The jurisdiction of the court of appeals shall be as

provided by statute or by rules authorized by statute." CONST. art. IV, § 30, cl. 2. This

provision is different than the jurisdictional provisions relating to the Supreme Court and

the superior courts. Art. IV, § 4 grants the Supreme Court "power to issue writs of

mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary

and proper to the complete exercise of its appellate and revisory jurisdiction." Art. IV,

§ 6, grants the superior courts "power to issue writs of mandamus, quo warranto, review,

certiorari, prohibition, and writs of habeas corpus." Both the Supreme Court and the

superior courts have express constitutional power to issue writs of certiorari. In contrast,

the people did not provide the Court of Appeals with similar authority and, instead, left

the court's jurisdiction to the legislature. These textual differences lead to the conclusion

that this court does not have the power to issue a constitutional writ of certiorari.

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No. 29757-8-111
E. Valley Sch. Dist. v. Taylor

       For the Court of Appeals to have any power to issue a writ of certiorari it would

thus have to be statutorily based. But, in this case RCW 28AA05.320 does not permit

any court to issue a statutory writ of certiorari. Vinson, 172 Wn.2d at 768. Thus, the

remaining question is whether it is appropriate to remand to the superior court.

       In Vinson, a school district sought a statutory writ of certiorari from an

administrative hearing officer's decision to retain a teacher. Vinson, 172 Wn.2d at 766­

67. After holding that the district's chosen route for review was unavailable, the

Supreme Court noted that the district could have sought review through a constitutional

writ of certiorari. Id. at 769. The Supreme Court then considered sua sponte whether the

case warranted issuance of a constitutional writ of certiorari and held that it did not. Id.

at 768-70.

       In raising the issue of constitutional certiorari, the Supreme Court relied on Bridle

Trails Cmty. Club v. City ofBellevue, 45 Wn. App. 248, 254, 724 P .2d 1110 (1986). Id.

at 768. Bridle Trails was a zoning case where landowners sought a statutory writ of

certiorari for relief from the city of Bellevue's arbitrary and capricious zoning action.

Bridle Trails, 45 Wn. App. at 249. Similar to this case, the petitioners had no right to

statutory certiorari. Id. at 250-51. Although the petitioners had not requested

constitutional certiorari at the superior court, this court still remanded for the superior

court to decide whether the petitioners deserved constitutional certiorari because "the

pleadings were sufficient to raise the issue." Id. at 254.
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No. 29757-8-111
E. Valley Sch. Dist. v. Taylor

       Unlike Bridle Trails, the superior court pleadings here could not be construed as a

request for a constitutional writ of certiorari. Typically a court will not consider a claim

for relief outside of the pleadings. E.g., Trask v. Butler, 123 Wn.2d 835, 846, 872 P.2d

1080 (1994) (refusing to reach the merits on a cause of action that the plaintiff failed to

allege in his complaint). However, courts also have broad authority to grant leave to

amend the pleadings. E.g., Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 165, 736 P.2d

249 (1987). Because both parties request a remand in accordance with Vinson and Bridle

Trails and EVSD may have acted initially in reliance on Bridle Trails, we remand for the

superior court to decide whether it will exercise its power to permit an amendment to the

pleadings to consider issuing a constitutional writ of certiorarL 1

       Although we remand in line with Bridle Trails and Vinson, we question whether

Bridle Trails' decision to remand for consideration ofunrequested relief violates our

public policy strongly favoring finality ofjudgments. In Nisqually Delta, the Washington

Supreme Court refused to permit the appellants to recast their appeal as a request for a

constitutional writ of certiorari in response to the court's determination that the appellants

had no right to a statutory appeal. Nisqually Delta Ass 'n v. City ofDuPont, 95 Wn.2d

563,569-70,627 P.2d 956 (1981) ("Having made [the] deliberate tactical choice" to



       I "The decision to grant the [writ of certiorari] is entirely within the discretion of
the superior court, which may refuse to exercise its inherent powers of review upon
tenable reasons." Harris v. Pierce County, 84 Wn. App. 222,230,928 P.2d 1111 (1996).

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No. 29757-8-III
E. Valley Sch. Dist. v. Taylor

appeal under the statute instead of under a constitutional writ of certiorari the petitioners

waived that theory on appeal.); Friends ofSnoqualmie Valley v. King County Boundary

Review Bd., 118 Wn.2d    488~   497,825 P.2d 300 (1992) ("While the appellants might have

sought review by [constitutional writ of certiorari] and had standing, we decline to treat

this appeal as a writ for the same reasons we gave in Nisqually Delta."). This is

consistent with the approach taken in other cases where a party seeks to raise new claims

during or after trial, including on appeal. See Herberg v. Swartz, 89 Wn.2d 916, 925,

929,578 P.2d 17 (1978) (refusing to permit a party to raise new errors on appeal and

affirming trial court's refusal to allow a new theory right before the conclusion of trial);

Chavez v. Dep't ofLabor & Indus., 129 Wn. App. 236, 242-43, 118 P.3d 392 (2005)

(refusing to allow claimant to reopen his Labor & Industries claim and argue a new

theory for relief). Bridle Trails does not appear to fit with these decisions and we believe

eventually the Supreme Court will have to reconcile these competing cases.

       Remanded.



                                                                 Korsmo, C.J.

WE CONCUR:




              Brown, .


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