### FILED 

### MAR 07, 2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III INTHE 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'sEastValley School DistrictNo. 90 (EVSD) asks this courtto grant a constitutional writ ofcertiorari to review the decision ofan administrative hearing officer or in the alternative to remand the case for the superiorcourt to decide whether itwill do so. Because the Court ofAppeals does nothave the powerto issue a constitutional writ ofcertiorari, we remand to superior court. FACTS On June 10,2009, EVSD placed Michele Taylor, a high school teacher, onpaid administrative leave afterreceiving allegations that she communicatedwith a minor student for immoral purposes and had sexual intercourse with anotherminor 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, ajury acquitted her ofall charges. Despite the acquittal, EVSD served Ms. Taylor with a notice ofprobable cause to terminate her employmentbased on the same allegations and other allegedpolicy violations. EVSD alleged that it had probable cause to terminate Ms. Taylor's employment because ofexcessive and inappropriate text messaging with the two students, inappropriate counseling/mentoring ofone ofthese students, sexual misconduct with the other student, and one-timeprovision ofmedication (Ibuprofen) to this other student, all ofwhich EVSD argued were in violation ofestablished 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 ofthe evidence. Thehearing officerthen ordered EVSD to reinstate Ms. Taylor. EVSD then sought review in the Yakima County Superior Courtunder a statutory writ ofcertiorari, RCW 7.16.040. The superior court dismissed the request, ruling that RCW28AA05.320 does not permitEVSD to seek statutory review ofthe 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. 210v. Vinson, 172 Wn.2d 756, 768, 261 2No. 29757-8-111 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 ofcertiorari. While reviewing EVSD's new request, this court questioned whetherthe constitution granted us the power to issue a writ ofcertiorari. We then directed the parties to file supplemental briefs. Both parties agreed that this court does not have the power to grant the requested reliefand 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 ofcertiorari. We agree with the parties thatwe do not have that power.The state ofWashington is a sovereign political body imbuedwithplenary power. Bellevue SchoolDist. 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 thatpower. State v. Gunwall, 106 Wn.2d 54,62, 720 P.2d 808 (1986) (the Washington Constitution "serves to limitthe sovereign powerwhich inheres directly in the people and indirectly in their electedrepresentatives"). In accordance with this structure, our Supreme Court has held time and again that the branches ofstate government can only act according to the constitution's express and impliedpowers. See, e.g., City of Seattle

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

common law or impliedpowers ofthe attorney general under our constitution. This court 

### 3No. 29757-8-II1 

### E. Valley Sch. Dist. v. Taylor has always insisted on finding an enumerated constitutional or statutory basis for the powers ofexecutive officers, including the attorney general."); Gerberdingv. Munro, 134 Wn.2d 188, 949 P.2d 1366 (1998) (holding that the legislativepower does not extend to setting qualifications for elected office in the absence ofan express grant ofpowerby the constitution);

### N. BendStage Line, Inc. v. Dep 't of Pub. Works, 170 Wash. 217, 226-27, 16 P.2d 206 (1932) (holdingthatthe Supreme Court can only exercisejurisdiction as enumerated in Const. art. IV, § 4). Accordingly, we must look tothe text ofthe constitution to determine ourjurisdiction. Our constitution states: "Thejurisdiction ofthe court ofappeals shall be as provided by statute orby rules authorized by statute." CONST. art. IV, 

### § 30, cl. 2. This provision is different than thejurisdictional provisionsrelatingto the Supreme Court and the superior courts. Art. IV, 

### § 4 grants the Supreme Court "powerto issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all otherwrits necessary andproper to the complete exercise ofits appellate and revisoryjurisdiction." Art. IV, § 6, grants the superior courts "powerto issue writs ofmandamus, quo warranto, review, certiorari, prohibition, andwrits ofhabeas corpus." Both the Supreme Court and the superior courts have express constitutional powerto issue writs ofcertiorari. In contrast, the people did not provide the Court ofAppeals with similar authority and, instead, left the court'sjurisdictionto the legislature. Thesetextual differences lead to the conclusion thatthis court does not have the powerto issue a constitutional writ ofcertiorari. 4No. 29757-8-111 E. Valley Sch. Dist. v. Taylor Forthe Court ofAppeals to have any power to issue a writ ofcertiorari it would thus have to be statutorily based. But, in this case RCW28AA05.320 does not permit any court to issue a statutory writ ofcertiorari. 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 ofcertiorari from an administrative hearing officer's decision to retain a teacher. Vinson, 172 Wn.2d at 766­ 67. Afterholding that the district's chosen route for review was unavailable, the Supreme Court noted thatthe district could have sought review through a constitutional writ ofcertiorari. Id. at 769. The Supreme Courtthen considered sua sponte whether the

case warranted issuance ofa constitutional writ ofcertiorari and held that it did not. Id. at 768-70. In raising the issue ofconstitutional certiorari, the Supreme Court relied on Bridle Trails Cmty. Club 

### v. City of Bellevue, 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 certiorarifor relieffrom the city ofBellevue's arbitrary and capricious zoning action. Bridle Trails, 45 Wn. App. at 249. Similartothis 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 sufficientto raise the issue." Id. at 254. 5No. 29757-8-111 E. Valley Sch. Dist. v. Taylor Unlike Bridle Trails, the superior courtpleadings here could not be construed as a request for a constitutional writ ofcertiorari. Typically a court will not consider a claim for reliefoutside ofthe pleadings. E.g., Trask v. Butler, 123 Wn.2d 835, 846, 872 P.2d 1080 (1994) (refusing to reach the merits on a cause ofaction thatthe plaintifffailed to allege inhis 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 andBridle Trails and EVSD may have acted initially in reliance onBridle Trails, we remand for the superior courtto decide whether itwill exercise its power to permit an amendment to the pleadings to consider issuing a constitutional writ ofcertiorarL 1 Although we remand in line withBridle Trails and Vinson, we question whether Bridle Trails' decision to remand for consideration ofunrequestedreliefviolates our public policy strongly favoring finality of judgments. InNisqually Delta, the Washington Supreme Court refused to permit the appellants torecast their appeal as a request for a constitutional writ ofcertiorari in response to the court's determination that the appellants had no right to a statutory appeal. Nisqually DeltaAss 'n v. City of DuPont, 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 ofcertiorari] is entirely within the discretion of the superior court, which mayrefuse to exercise its inherentpowers ofreview upon tenable reasons." Harris v. Pierce County, 84 Wn. App. 222,230,928 P.2d 1111 (1996). 6No. 29757-8-III E. Valley Sch. Dist. v. Taylor appeal under the statute instead ofunder a constitutional writ ofcertiorari the petitioners waived thattheoryon appeal.); Friends of Snoqualmie Valley v. King CountyBoundary ReviewBd., 118 Wn.2d**488~** 497,825 P.2d 300 (1992) ("While the appellants might have sought review by [constitutional writ ofcertiorari] and had standing, we decline to treat this appeal as a writ for the same reasons we gave inNisqually 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 oftrial); Chavez v. Dep't of Labor 

### &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 withthese 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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