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 ofAppeals 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 ofthese students, sexual misconduct 

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

student, all ofwhich 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 

2 

No. 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 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 

3 

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 ofpower 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 ofthe 

constitution to determine our jurisdiction. 

Our constitution states: "The jurisdiction ofthe 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 ofAppeals 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. 

4 

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 ofBellevue'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. 

5 

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 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 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 certiorarL1 

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). 

6 

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, . 

7