Beyond Procedure: RAP 2.3(b)(3) Authorizes Discretionary Review for Substantive Departures from the Accepted Course of Proceedings

Beyond Procedure: RAP 2.3(b)(3) Authorizes Discretionary Review for Substantive Departures from the Accepted Course of Proceedings

Case: In re Dependency of C.J.J.I., C.V.I., and R.A.R., Jr.

Court: Supreme Court of Washington (en banc)

Date: March 27, 2025

Opinion: Per curiam

Introduction

In this consolidated juvenile dependency matter, the Washington Supreme Court clarifies a recurring and important question of appellate practice: whether discretionary interlocutory review under RAP 2.3(b)(3) is confined to “procedural” irregularities or also reaches “substantive” legal errors. The Court answers unequivocally that RAP 2.3(b)(3) (and its counterpart, RAP 13.5(b)(3)) is not limited by a procedure/substance dichotomy. Rather, the rule permits discretionary review whenever a lower court has so far departed from the accepted and usual course of judicial proceedings as to warrant intervention—whether the departure is labeled procedural or substantive.

The case arises from dependency proceedings involving three children of M.R., two of which are subject to the federal Indian Child Welfare Act (ICWA) and the Washington Indian Child Welfare Act (WICWA). After the Department of Children, Youth, and Families (the Department) failed to provide court-ordered weekly supervised visitation, M.R. argued the Department had not made the “active efforts” required by ICWA/WICWA and sought relief from the superior court. The superior court ruled the Department had made active efforts but did not discuss the heightened evidentiary standard applicable in ICWA/WICWA dependencies (clear, cogent, and convincing). M.R. then sought discretionary review in the Court of Appeals under RAP 2.3(b)(3), asserting the trial court’s failure to apply the correct standard constituted a departure warranting interlocutory review. A commissioner denied review—later affirmed by a panel—reasoning that RAP 2.3(b)(3) applies only to “procedural” irregularities.

The Supreme Court granted review to resolve the scope of RAP 2.3(b)(3) and 13.5(b)(3) and now reverses, holding that the Court of Appeals applied the wrong legal standard by categorically excluding “substantive irregularities” from the ambit of these rules.

Summary of the Opinion

  • The text of RAP 2.3(b)(3) and RAP 13.5(b)(3) does not limit discretionary interlocutory review to “procedural” irregularities. Neither rule uses the terms “procedural” or “substantive.”
  • By their plain meaning, both rules focus on whether a court has “so far departed from the accepted and usual course of judicial proceedings” as to call for appellate intervention. “Proceedings” is broader than “procedure.”
  • The Court of Appeals’ categorical limitation to procedural irregularities is erroneous and itself constitutes a departure from the accepted and usual course of judicial proceedings that is “so far” as to warrant Supreme Court revisory jurisdiction under RAP 13.5(b)(3).
  • The Supreme Court reverses the denial of discretionary review and remands for the Court of Appeals to reconsider M.R.’s motion under the correct standard.
  • The Court reiterates that, although discretionary interlocutory review remains “specific and stringent” and the appellate system is biased against interlocutory intervention, the rules are not an insuperable bar and permit review in significant situations.

Analysis

Precedents and Authorities Cited

The Court grounds its analysis in interpretive principles and case law that, collectively, confirm RAP 2.3(b)(3)’s reach beyond purely procedural missteps:

  • In re Dependency of N.G., 199 Wn.2d 588, 510 P.3d 335 (2022): The Court applies ordinary rules of statutory construction to court rules, emphasizing plain meaning read in context and within the broader scheme. N.G. also encapsulates the appellate system’s “plain and intentional bias against interlocutory review,” quoting Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541 (1986).
  • Black’s Law Dictionary (12th ed. 2024): The Court distinguishes “proceeding” (the regular and orderly progression of a lawsuit from commencement to judgment) from “procedure” (a specific method or judicial rule for carrying on a case), underscoring that “proceedings” is the operative term in RAP 2.3(b)(3) and 13.5(b)(3).
  • In re Dependency of Baby Boy B., 27 Wn. App. 2d 825, 533 P.3d 1177 (2023), rev’d on other grounds, 3 Wn.3d 569, 554 P.3d 1196 (2024): Division One granted interlocutory review under RAP 2.3(b)(3) to address a substantive statutory interpretation issue (RCW 13.34.065(7)(a)(i)). While the Supreme Court later disagreed on the statutory meaning, it did not fault the Court of Appeals’ use of RAP 2.3(b)(3) for a substantive issue—strong evidence that the rule is not limited to procedural irregularities.
  • Cases invoked by the Court of Appeals—In re Marriage of Folise, 113 Wn. App. 609, 54 P.3d 222 (2002); Young v. Key Pharmaceuticals, Inc., 63 Wn. App. 427, 819 P.2d 814 (1991); In re Marriage of Flannagan, 42 Wn. App. 214, 709 P.2d 1247 (1985); State v. Jeter, 19 Wn. App. 151, 574 P.2d 1193 (1978); Wahler v. DSHS, 20 Wn. App. 571, 582 P.2d 534 (1978)—do not analyze the text or draw a procedure/substance distinction; they simply apply RAP 2.3(b)(3) to diverse circumstances, several of which involve substantive legal error.
  • In re Dependency of G.J.A., 197 Wn.2d 868, 489 P.3d 631 (2021): Cited for the ICWA/WICWA “active efforts” requirement, providing background to the dependency context and the heightened safeguards at issue, though the Supreme Court here does not reach the merits of whether the trial court applied the correct standard.
  • In re Dependency of Z.J.G., 196 Wn.2d 152, 471 P.3d 853 (2020): Referenced in a footnote for language usage; not bearing on the rule’s interpretation.

Legal Reasoning

The Court’s reasoning proceeds in three principal steps:

  1. Textual analysis and plain meaning. RAP 2.3(b)(3) authorizes discretionary interlocutory review when a “superior court has so far departed from the accepted and usual course of judicial proceedings … as to call for review.” RAP 13.5(b)(3) mirrors that standard for Supreme Court review of Court of Appeals decisions. The rules’ text does not mention, much less limit, review to “procedural” irregularities. The operative term is “proceedings,” which, by accepted legal definition, encompasses the full progress of the litigation, including substantive and procedural rulings. Because “proceeding” is not synonymous with “procedure,” a categorical procedural-only limitation finds no footing in the rules’ language.
  2. Context, precedent, and practice. The Court observes that existing case law offers little direct interpretive guidance on RAP 2.3(b)(3) and often applies the rule without analysis. Nevertheless, cases like Baby Boy B. demonstrate that appellate courts have used RAP 2.3(b)(3) to review substantive legal questions. The Court also quotes N.G. and Crooks to reaffirm that discretionary review is exceptional and that Washington’s appellate design disfavors interlocutory intervention. The proper balance, the Court explains, is to maintain the stringency of the standard while recognizing that serious departures—procedural or substantive—may justify immediate review.
  3. Application under RAP 13.5(b)(3). Turning to whether Supreme Court intervention is warranted here, the Court identifies two elements:
    • There was a “departure”: The Court of Appeals refused to consider the merits based on a misinterpretation of RAP 2.3(b)(3) that is inconsistent with the rule’s text and usage. That refusal deviated from the accepted and usual course of proceedings.
    • The departure was “so far” as to justify revisory jurisdiction: The Court of Appeals’ error is categorical—it forecloses an entire class of interlocutory review for “substantive” irregularities—and, if uncorrected, would likely influence future cases. Those features make the departure significant enough to warrant correction now.
    The Court therefore grants discretionary review, reverses the denial, and remands for reconsideration under the correct standard.

Impact and Implications

This decision is an important course correction for Washington appellate practice. Its immediate and broader effects include:

  • Eliminating a categorical bar. Litigants may seek discretionary interlocutory review under RAP 2.3(b)(3) for serious substantive errors—such as misallocation of burdens of proof, application of the wrong legal standard, denial of statutorily required hearings, or jurisdictional overreach—when those errors represent a significant departure from the accepted and usual course of judicial proceedings.
  • Maintaining stringency. The decision does not relax the “specific and stringent” criteria for interlocutory review. Parties still must show a departure that is “so far” from accepted practice as to justify immediate appellate intervention. Routine legal errors remain outside RAP 2.3(b)(3)’s narrow gateway.
  • Dependency and ICWA/WICWA practice. In the high-stakes context of family integrity and tribal interests, errors such as failure to apply the clear, cogent, and convincing standard for “active efforts” may, in appropriate circumstances, qualify for interlocutory review. This can prevent compounding harm while cases await final judgment, though the bar for intervention remains high.
  • Guidance for the Court of Appeals and commissioners. Commissioner rulings and panel decisions denying discretionary review should not brand substantive errors as categorically ineligible. Instead, courts must assess whether the alleged irregularity—procedural or substantive—amounts to a significant departure from accepted proceedings warranting review.
  • Strategic considerations for practitioners. Successful RAP 2.3(b)(3) petitions will:
    • Identify the specific “accepted and usual course” with reference to clear text (statute, rule), controlling precedent, or firmly established practice;
    • Explain how the order departs from that course and why the departure is significant now (e.g., categorical, systemic, rights-affecting, uncorrectable later, or likely to recur);
    • Address the “so far” element with particularity, showing why immediate correction is warranted despite the general disfavor toward interlocutory review.
  • Beyond juvenile cases. The clarification applies across civil and criminal matters. Examples might include refusals to apply mandatory statutory frameworks, systemic evidentiary misallocations, or orders that effectively deny a party an entire class of rights before final judgment.

Complex Concepts Simplified

  • Interlocutory order: A court decision made before the case is finally resolved. Not every interlocutory order is immediately appealable; most must wait until the end of the case unless a rule authorizes earlier review.
  • Discretionary review (RAP 2.3(b)(3), 13.5(b)(3)): A narrow mechanism allowing an appellate court to review an interlocutory order when the lower court has significantly deviated from the accepted and usual course of judicial proceedings. It is “discretionary” because the appellate court chooses whether to take the case based on stringent criteria.
  • Accepted and usual course of judicial proceedings: The established, generally recognized way a court should handle a case, informed by statutes, rules, and precedent. Departures can be procedural or substantive and must be significant to trigger review.
  • Procedural vs. substantive irregularity: Procedural errors concern the methods or steps in litigation (e.g., notice, timing, hearing procedures). Substantive errors concern the application or meaning of the law (e.g., interpreting a statute, applying the wrong evidentiary standard). The Court holds that RAP 2.3(b)(3) is not limited to the former.
  • Revisory jurisdiction (RAP 13.5(b)(3)): The Supreme Court’s authority to correct the Court of Appeals when that court has, in turn, significantly departed from accepted appellate processes.
  • Active efforts (ICWA/WICWA): A heightened, affirmative obligation on the State to prevent the breakup of Native families by providing robust, culturally appropriate services. In Washington, the State’s compliance in certain ICWA/WICWA contexts must be proven by clear, cogent, and convincing evidence.
  • Clear, cogent, and convincing evidence: A high standard of proof requiring the evidence to be highly and substantially more probable to be true than not, leaving the factfinder with a firm belief in the facts at issue. It is stricter than “preponderance of the evidence” but less than “beyond a reasonable doubt.”

Conclusion

The Washington Supreme Court’s decision in In re Dependency of C.J.J.I., C.V.I., and R.A.R., Jr. squarely rejects a categorical, “procedural-only” limitation on RAP 2.3(b)(3) and RAP 13.5(b)(3). By restoring the rules to their textual scope—departures from the accepted and usual course of judicial proceedings, whether procedural or substantive—the Court preserves the intended balance: interlocutory review remains exceptional and stringent, yet available to remedy significant departures that demand immediate correction.

For practitioners, the ruling provides a clearer path to interlocutory review of serious legal errors that jeopardize litigants’ rights or the integrity of the process—particularly salient in dependency and ICWA/WICWA matters—while underscoring that not every error meets the high threshold. For the appellate courts, it refocuses the RAP 2.3(b)(3)/13.5(b)(3) inquiry on the gravity of the departure and its implications for the orderly and lawful conduct of judicial proceedings.

Case Details

Year: 2025
Court: Supreme Court of Washington

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