In the Matter of the Personal Restraint of EDDIE D. ARNOLD, Petitioner.
Arnold was convicted of failing to register as a sex
offender. His conviction was based on a statutory rape
statute that was subsequently repealed. Prior decisions of
our court, issued by Divisions One and Two, have overturned
failure to register convictions in analogous circumstances.
The doctrine of stare decisis persuades us to follow suit. We
therefore grant Mr. Arnold's personal restraint petition
(PRP) and vacate his conviction.
facts in this case are materially similar to those considered
by Division One of our court in State v. Taylor, 162
Wn.App. 791, 259 P.3d 289 (2011), and Division Two in In
re Personal Restraint of Wheeler, 188 Wn.App. 613, 354
P.3d 950 (2015). On June 27, 1988, Mr. Arnold pleaded guilty
to second degree statutory rape in violation of former RCW
9A.44.080(1) (1979). Several days after the guilty plea, the
legislature repealed provisions defining the three degrees of
statutory rape in former RCW 9A.44.070, .080, and .090, and
replaced them with three degrees of the crime of rape of a
child in RCW 9A.44.073, .076, and .079. See
SUBSTITUTE H.B. 1333, ch. 145, §§ 2-4, 24, 26, 50th
Leg., Reg. Sess. (Wash. 1988).
Arnold was released from his prison sentence in August 1990.
That same year, the legislature enacted RCW 9A.44.130, which
required sex offenders to register. Second Substitute S.B.
6259, ch. 3, § 402, 51st Leg., Reg. Sess. (Wash. 1990).
Throughout the 2000s, Mr. Arnold was convicted five times for
failure to register as a sex offender.
2011, the Court of Appeals decided Taylor. That case
reversed a conviction for failure to register as a sex
offender, reasoning that the defendant's prior conviction
for third degree statutory rape was no longer listed in the
provision of the Sentencing Reform Act of 1981, chapter 9.94A
RCW (SRA), that defined "sex offense." 162 Wn.App.
October 2013, the State charged Mr. Arnold with failure to
register. The State alleged Mr. Arnold's 1988 statutory
rape conviction required him to register and Mr. Arnold
failed to comply with RCW 9A.44.130's registration
requirements between May and October 2013. Several weeks
later, the State also charged Mr. Arnold with first degree
trafficking in stolen property.
March 2015, the State and Mr. Arnold negotiated a global plea
agreement, under which Mr. Arnold pleaded guilty to failure
to register and an amended second degree trafficking in
stolen property charge. The State and Mr. Arnold jointly
recommended 51 months of incarceration for both charges and
agreed Mr. Arnold would serve both sentences concurrently.
The trial court accepted the plea agreement and imposed the
requested sentence on June 4.
weeks after the sentencing hearing, the Spokane County
Sheriffs Office sent Mr. Arnold a letter informing him that
he was relieved of his duty to register as a sex offender
pursuant to Taylor. On August 6, 2015, Mr. Arnold
moved to withdraw his guilty plea under CrR 7.8. Mr. Arnold
asserted that he was not required to register as a sex
offender under Taylor and he was unaware of
Taylor when he pleaded guilty. The trial court
transferred Mr. Arnold's motion to this court for
consideration as a PRP.
One and Two of our court have ruled invalid convictions that
are materially indistinguishable from Mr. Arnold's.
Taylor, 162 Wn.App. at 801; Wheeler, 188
Wn.App. at 621. In brief, these decisions hold that because
the sex offender registration statute specifically requires
registration by anyone convicted of a felony that
"is" a violation of chapter 9A.44 RCW, the
registration obligation does not apply to convictions under
Washington's repealed statutory rape statute.
State largely acknowledges that, if we were to follow
Taylor and Wheeler, Mr. Arnold's
failure to register conviction cannot stand. Nevertheless, the
State urges us not to follow the lead of our court's
other divisions because they rest on an incorrect
interpretation of the relevant statutes. As pointed out by
our dissenting colleague, the State's argument has much
force. Nevertheless, we are persuaded to follow the lead of
our court's prior decisions under the doctrine of stare
decisis. "Stare decisis" is a Latin phrase, meaning
"to stand by things decided." Black's Law
Dictionary 1626 (10th ed. 2014). The doctrine of stare
decisis has two primary incantations: vertical stare decisis
and horizontal stare decisis. Under vertical stare decisis,
courts are required to follow decisions handed down by higher
courts in the same jurisdiction. For example, trial and
appellate courts in Washington must follow decisions handed
down by our Supreme Court and the United States Supreme
Court. Adherence is mandatory, regardless of the merits of
the higher court's decision. State v. Gore, 101
Wn.2d 481, 487, 681 P.2d 227 (1984). Horizontal stare decisis
is different and more complex. Under this doctrine a court,
such as this one, is not required to follow its own
prior decisions. Yet it is often well advised to do so.
Adherence to past decisions through the doctrine of stare
decisis promotes clarity and stability in the law, thereby
enabling those impacted by the courts' decisions to make
personal and professional decisions that comply with legal
mandates. See In re Rights to Waters of Stranger
Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).
stare decisis is fairly well defined at the level of our
Supreme Court. While it is not strictly bound by prior
decisions, a litigant seeking to upend a prior case faces an
arduous task. Our Supreme Court does not lightly set aside a
prior decision. State v. Otton, 185 Wn.2d 673, 678,
374 P.3d 1108 (2016). Because of the many benefits of
adhering to precedent, the Supreme Court will only revisit
prior decisions upon '"a clear showing that an
established rule is incorrect and harmful.'"
Id. (quoting Stranger Creek, 77 Wn.2d at
653). Both prongs of this analysis are required. Deggs v.
Asbestos Corp. Ltd., 186 Wn.2d 716, 727-28, 381 P.3d 32
(2016); State v. Barber, 170 Wn.2d 854, 864, 248
P.3d 494 (2011). A prior case that is merely incorrect, but
not also harmful, does not meet the criteria for reversal.
Deggs, 186 Wn.2d at 727-28; Barber, 170
Wn.2d at 864.
comes to our state Court of Appeals, application of
horizontal stare decisis has been less clear. See
Mark DeForrest, In the Groove or in a Rut? Resolving
Conflicts Between the Divisions of the Washington State Court
of Appeals at the Trial Court Level, 48 GONZ. L. REV.
455, 456 (2012/13); Kelly Kunsch, Stare Decisis:
Everything You Never Realized You Need to Know, 52 WASH.
ST. BAR NEWS 31 (Oct. 1998). Our courts have applied the
doctrine to prior decisions issued by the same division.
See, e.g., State v. Stalker, 152 Wn.App. 805,
811-12, 219 P.3d 722 (2009). However, no case has explicitly
adopted stare decisis for decisions issued by a different
not prepared to resolve the question of exactly how stare
decisis applies in the current context, involving decisions
issued by other divisions. Nevertheless, it is apparent that
stare decisis must apply at least to some degree, otherwise
we face vexing problems. Because one panel decision cannot
overturn a prior contrary decision, "two inconsistent
opinions ... may exist at the same time, " Grisby v.
Herzog, 190 Wn.App. 786, 809, 362 P.3d 763 (2015), both
with binding force over trial courts and litigants throughout
the state. This creates a potential problem for the liberty
interests of our state's citizens. The issuance of
conflicting decisions about what an individual must do to
abide by the law, each of which is equally binding, would
call the very constitutionality of our system of appellate
jurisprudence into question. See Johnson v. United
States, U.S. ___, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569
(2015) ("the Government violates [the Fifth Amendment
guarantee of due process] by taking away someone's life,
liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary
harm caused by failing to follow Taylor and
Wheeler under stare decisis is salient here.
Regardless of whether Taylor and Wheeler
were incorrectly decided, parting company at this point would
create unjustified harm by rendering the applicable law
State and our dissenting colleague take a different approach
to harm. They claim the greatest harm lies in continued
application of Taylor and Wheeler because
the two decisions hamper law enforcement's efforts at
community protection. This may be a valid concern. But it is
not something we can redress. Even if we were to rule in the
State's favor, Taylor and Wheeler would
still stand. Rather than eliminating harm, the issuance of a
decision contrary to Taylor and Wheeler
would exacerbate harms to the public in that sex offenders
would still likely avoid registration but the legal rights
and obligations of individuals throughout the state would
also be in doubt.
facts of this case make the practical problems of disagreeing
with Taylor and Wheeler apparent. After his
conviction, Mr. Arnold was sent a notice by the sheriffs
department stating he no longer needed to register as a sex
offender based on Taylor. Presumably other similarly
situated individuals were also sent notices. What steps would
the sheriffs department need to take if we issued a decision
contrary to Taylor? Because we cannot overturn
Taylor, it would not be able to advise individuals
that its prior notice was incorrect. Yet the failure to
advise individuals of a decision contrary to Taylor
would frustrate the State's desire to increase sex
offender registrations. Our court strives to solve problems,
not create them. But departing from Taylor and
Wheeler would do just that.
decline to upend settled expectations throughout the state by
rejecting Taylor and Wheeler. The harm of
doing so is too great. The State's criticisms of our
prior decisions are well taken. But only the Washington
Supreme Court can provide the State the kind of definitive
relief it seeks. That route for review remains available.
Mr. Arnold's 2015 failure to register conviction was
facially invalid pursuant to Taylor and
Wheeler, he is illegally restrained and therefore
entitled to relief on his PRP. The fact that Mr. Arnold
received a concurrent conviction and sentence for possession
of stolen property does not alter this result. In re
Pers. Restraint of Powell, 92 Wn.2d 882, 602 P.2d 711
(1979) (PRP relief available despite concurrent sentence);
see also In re Pers. Restraint of Martinez, 171
Wn.2d 354, 363-64, 256 P.3d 277 (2011); Wheeler, 188
Wn.App. at 617 (holding petitioner was under
"restraint" even though he had completed his
sentence for failure to register as a sex offender).
grant Mr. Arnold's personal restraint petition and vacate
his 2015 conviction for failing to register as a sex
CONCUR: Siddoway, J.
Pennell, J. (concurring)
separately to provide my thoughts on how stare decisis should
function within our appellate court. This is a matter that
deserves clarity, especially as our court nears its 50th
anniversary. I come to the task of analyzing stare decisis
favorably disposed to its application. Stare decisis is what
ensures the law exists on its own, separate from the various
personalities that come and go from the bench. Adhering to
stare decisis does not necessitate avoiding disagreement with
past decisions. It simply requires respect. Invoking stare
decisis means that, prior to deviating from a prior decision,
we will concern ourselves not only with analytical integrity,
but also with the practical implications of disrupting
existing law. Doing so permits litigants and attorneys to
have confidence in how to administer their affairs, advise
clients, and present cases to our court.
foundational matter, there can be no doubt that stare decisis
has at least some role to play in our appellate courts. Our
Supreme Court has stated as much. In 2002, the court
recognized application of the doctrine, noting "[t]he
Court of Appeals can overrule a previous decision if it is
'demonstrably incorrect or harmful.'"
Int'l Ass'n of Fire Fighters, Local 46
v. City of Everett, 146 Wn.2d 29, 37 n.9, 42 P.3d 1265
(2002) (internal quotation marks omitted) (quoting King
v. Western United Assurance Co., 100 Wn.App. 556, 561,
997 P.2d 1007 (2000)). Fire Fighters involved a
conflict within Division One's case law. Given this
procedural posture, the Supreme Court did not address whether
the stare decisis test applied throughout the Court of
Appeals, or only within a given division.
the Supreme Court did not explicitly state that stare decisis
applies across the different divisions of our court, I see no
substantive basis for limiting its application. Our state
Court of Appeals is a unitary court. Wash. Const, art. IV,
§ 30(1) (creating "a court of appeals").
Although we are divided into three geographic regions, we are
one court, and a decision by any one panel in the court is
binding on lower courts throughout the state, regardless of
location. See, e.g., ...