Civil Law Research Papers - Academia.edu (original) (raw)

This Court should not follow the Panel’s suggestion that Petersons’ challenge to personal jurisdiction be waived because no party made this argument to either this Court or the Court of Appeals. Under our system of government, the role of courts is not to advance arguments in
support of any of the adverse parties. United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020)(“In our adversarial system of adjudication, . . . in both civil and criminal cases, in the first instance and on appeal . . ., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id. at 140 S. Ct at 1579 (quotation marks omitted).) Cf. English v. Buss, supra., at **11-14 (unpublished) (Held one judge could review the order of another judge where lack of procedural due process was apparent.) See also RAP 2.5.
Had Division One panel’s waiver argument been made by the opposing party and its counsel the Petersons, through their counsel, would have been able to demonstrate this position should be rejected because the record reflects the Petersons never agreed to waive their right to adequate, non-fraudulent service of process, which includes being “duly cited to appear.” As to this right, see e.g., Hovey v. Elliott, 167 U.S. 409, 418 (1897); Garrison v. Cheeney, 1 Wash. Terr, 489, 503 (1875); Galpin v. Page, 85 U.S. (18 Wall.) 350, 368-69 (1873) (“It is a rule, old as the law, . . . , that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.”)

As to the law that waiver of constitutional rights must be knowing, intelligent, and voluntary, see State v. Herron, 183 Wn.2d 737, 743-45, 356 P.3d 709, 712-13 (2015). In fact, a court must “indulge every reasonable presumption against waiver of fundamental rights.” State v. Frawley, 181 Wn.2d 452, 461, 334 P.3d 1022 (2014). Under these constitutional principles there was no waiver of the Petersons’ right, asserted in their answer and other pleadings, not to be hailed into
a court that had no personal jurisdiction over them.

Another reason that failure to file a specific motion to dismiss for a lack of personal jurisdiction pursuant to KCLR 7(b)(5) was not required is because CR 12(h)(1) specifically provides “A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.” Here, these personal jurisdiction defenses were clearly asserted in the Petersons’ Answer, Affirmative Defenses, and Response to the Bank’s motion for summary judgment. And even if it was the intent of this superior court to require persons to file motions to dismiss under these circumstances, a superior court does not have the authority to
compel this result as local rules cannot alter the Washington Rules of Civil Procedure. See Parry v. Windermere Real Estate/East, 102 Wn. App. 920, 928-29 (2000)(Local Rule cannot waive right under CR 12(h) to assert personal jurisdiction defenses in answer); See also Harbor Enters. v. Gudjonsson, 116 Wn.2d 283, 293 (1991); State v. Chavez, 111 Wn.2d 548, 554 (1988)(Local court rules are subordinate to state rules of civil procedure).

In summary, and with such respect as is due the Panel’s suggestion that the Bank’s motion to amend should be granted, it is Petersons’ contention that judges must respect citizens constitutional rights and not waive them without a factual basis for doing so. Similarly, with
respect, the Panel had no constitutional authority—and violated the Petersons’ right to due process of law—when it invented an argument to help the Bank, which was inconsistent with the Civil Rues and cases interpreting them. Thus, this Court should also not waive the Petersons’ right to adequate service of process before granting a motion to amend because such a result would be futile under existing law, notwithstanding anything the Court of Appeals panel has said. Colvin v. Inslee, 195 Wn.2d 879, 899-901 (2020)
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Not since the United States Supreme Court’s constitutionally and morally bankrupt decision in Sanford v. Scott, 60 U.S. 393 (1857)2 has the integrity of America’s judicial system been more in doubt than it is now. See e.g., The Wall Street Journal, “131 Federal Judges Broke the Law
by Hearing Cases Where They Had a Financial Interest” (September 28, 2021); House Judiciary Committee, Nadler & Johnson Statement on Reports Federal Judges Broke the Law by Hearing Cases
Where They Had a Financial Interest (September 29, 2021)4. The problem an economically biased judiciary poses for our democratic republic is that it undercuts the basic premises upon which this
nation was founded, i.e., separation of powers, checks and balances, federalism, and due process of law. Unfortunately, for us, the People, these constitutional structures are not self enforcing, but must be enforced by those who have been economically incentivized to promote the interests of government workers—and their creditor allies—against this nation’s citizens.