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Court of Appeals No. 76571-0-I in THE FILED Court of Appeals Division I State of Washington 812912018 4:27 PM Supreme Court No. ___________________96259-6 Court of Appeals No. 76571-0-I IN THE SUPREME COURT OF THE STATE OF WASHINGTON Melissa Eckstrom Respondent, v. Sigurd Hansen Petitioner. PETITION FOR REVIEW Lafcadio Darling, Michael D. Helgren, WSBA No. 29963 WSBA No. 12186 HOLMES WEDDLE & Matthew J. Campos, BARCOTT, P.C. WSBA No. 40777 999 Third Avenue, Suite 2600 MCNAUL EBEL NAWROT & Seattle, WA 98104 HELGREN PLLC (206) 292-8008 One Union Square 600 University Street, 27th Fl. Seattle, WA 98101-3143 (206) 467-1816 Attorneys for Petitioner Sigurd J. Hansen TABLE OF CONTENTS I. IDENTITY OF PETITIONER, CITATION TO APPELLATE DECISION & INTRODUCTION ........................... 1 II. ISSUES PRESENTED FOR REVIEW .......................................... 3 III. STATEMENT OF THE CASE ....................................................... 3 IV. ARGUMENT WHY REVIEW SHOULD BE GRANTED ........... 7 A. Standard for Discretionary Review ..................................... 7 B. The Decision is in Direct Conflict with this Court’s Precedent ......................................................... 7 1. This Court’s black letter collateral estoppel precedent. .................................................. 7 2. The decision conflicts with this Court’s precedent regarding when a minor represented by a GAL is bound by the outcome of a proceeding. ........................................ 8 3. The decision conflicts with this Court’s precedent regarding the participation and privity elements. ............................................. 13 4. The decision is contrary to this Court’s precedent regarding the justice element of collateral estoppel. ............................................ 16 C. The Decision Conflicts with a Published Appellate Decision ............................................................ 18 D. This Case Raises Issues of Substantial Public Interest that Should be Determined by this Court—at this Time .......................................................... 18 E. This Court Should Apply Any Rule Change Prospectively........................................................ 19 IV. CONCLUSION ............................................................................. 20 i TABLE OF AUTHORITIES Cases Beal for Martinez v. City of Seattle, 134 Wn.2d 769, 954 P.2d 237 (1998) ............................................. 12, 17 Bordeaux v. Ingersoll Rand Co., 71 Wn.2d 392, 429 P.2d 207 (1967) ............................................... 13, 14 Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 96 P.3d 957 (2004) ....................................... 2, 8, 16, 18 Doe v. Corp. of President of Church of Jesus Christ of Latter Day Saints, 141 Wn. App. 407, 167 P.3d 1193 (2007) ...................................... 12, 13 Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, LLP, 161 Wn.2d 214, 164 P.3d 500 (2007) ............................................. 14, 15 Guardianship of Robinson, 9 Wn.2d 525, 115 P.2d 734 (1941) ................................................ passim McDevitt v. Harbor View Med. Center, 179 Wn.2d 59, 316 P.3d 469 (2013) ..................................................... 19 Nielson v. Spanaway General Medical Clinic, Inc., 135 Wn.2d 255, 956 P.2d 312 (1998) ..................................................... 8 Quesnell v. State, 83 Wn.2d 224, 517 P.2d 568 (1973) ........................................................................ 12, 17 Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.l2d 318 (1992) .................................................... 19 State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997) ............................................. 8, 18 Thompson v. State Dept. of Licensing, 128 Wn.2d 783 (1999) .......................................................................... 16 ii Wagner v. McDonald, 10 Wn. App. 213, 516 P.2d 1051 (1973) .............................................. 18 Statutes RCW 26.09.002 .............................................................................. 4, 13, 15 Other Authorities (SECOND) OF JUDGMENTS, § 41 (1982) ....................................................... 9 FRANCIS C. AMENDOLA, 50 C.J.S. JUDGMENTS § 1116 (SEPT. 2016) .......... 9 Rules RAP 13.4(b) ...................................................................................... 2, 7, 18 iii I. IDENTITY OF PETITIONER, CITATION TO APPELLATE DECISION & INTRODUCTION Defendant/Appellant Sigurd J. Hansen (“Father”) seeks review in Eckstrom v. Hansen, Washington State Court of Appeals No. 76571-0-I (published July 30, 2018) (“Op.”). The decision is attached hereto as Appendix A. The Court of Appeals announces a new rule breaking unbroken Washington precedent: a minor may relitigate the central question of fact resolved at a full trial in which the minor was separately represented by an independent GAL, after the minor becomes an adult after and material evidence has been destroyed. If this is to be the new rule, it should be prospectively applied and should come from this Court. More than 25 years ago—in the midst of a bitter and acrimonious dissolution, and after making other false accusations against Father— Respondent’s mother (“Mother”) falsely accused Father of sexually abusing their then two-year-old daughter, Plaintiff/Respondent Melissa Eckstrom (“Daughter”). The sole foci of the six-day trial in 1992 were to determine whether the abuse allegations were true and to protect Daughter’s best interests. To that end, the court considered evidence and testimony from both sides, including from Daughter’s court-appointed Guardian Ad Litem (“GAL”); the court-appointed independent expert (a psychologist); and the social workers who supervised visitation – all of whom believed the abuse allegations were false. The court also heard Daughter’s testimony, through conversations between Daughter and her therapist and court-appointed independent expert. Judge Peter Steere concluded that Father had not abused Daughter. Daughter now seeks to re-litigate these same disproven allegations. She alleges no new claims, offers no new evidence, and seeks the very outcome rejected in 1992. The only difference now is that memories have faded, evidence has been lost, and important witnesses are unavailable. This Court’s precedent is clear that collateral estoppel “bars relitigation of an issue in a subsequent proceeding involving the same parties.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). This Court’s precedent is also clear that a minor represented by a GAL at a proceeding is bound by the outcome. See Guardianship of Robinson, 9 Wn.2d 525, 536, 115 P.2d 734 (1941). This Court should grant review under RAP 13.4(b) because the decision is contrary to this Court’s and the Court of Appeals’ well- established precedent and involves important issues of public interest. If this Court does not accept review, the decision’s error will cause irreparable damage to Father that cannot later be undone, even if a jury finds again that he did not abuse Daughter, or if this Court determines later that collateral estoppel bars Daughter’s claims here.1 1 By contrast, no harm will come to Daughter by this Court’s decision to accept review beyond, at most, a modest delay in pursuing her already stale claims. - 2 - Indeed, if the well-settled rules of collateral estoppel were to be changed as the Court of Appeals proposes, this Court should apply any such changes prospectively to future cases, not to this one. At the time of the 1992 trial, the rules of collateral estoppel precluded relitigation of the issue of whether Father abused Daughter. Because of this, Father relied on the court’s finding of no abuse in not preserving critical evidence and exhibits. It would be manifestly unfair to force Father to relitigate these disproven allegations 25 years later when important evidence is no longer available because of reliance on the then-existing law. II. ISSUES PRESENTED FOR REVIEW Should Daughter’s claims have been dismissed under collateral estoppel where the same allegations underlying these claims were litigated and rejected in 1992, after a six-day trial held to resolve the same issues, at which the abuse claims were aggressively pursued, an independent expert was appointed by the Court, a GAL was appointed for Daughter, and where crucial evidence is no longer available? III. STATEMENT OF THE CASE Over 25 years ago, Mother became pregnant with Daughter and she and Father married. See CP at 128-35. Mother filed for dissolution shortly after their wedding. Id; Appendix B (“App.”) at 16. After Mother made other false and disproven allegations against Father, Mother falsely - 3 - claimed that Father had sexually abused Daughter. Id; CP at 382-86; 359- 380; App. at 41-45; 49-80; 92-105. The social workers who assisted with Daughter’s visitation with Father expressed concerns—even before Mother made these abuse allegations—that Mother would falsely accuse Father of abusing Daughter to prevent him from having a relationship with her. CP at 382-86. Unfortunately, this prediction came true. Even though Daughter’s pediatricians had never seen evidence of abuse, App. at 40, Mother took Daughter to Harborview Medical Center and had her examined. Id. at 38. While the results of the physical examination were not themselves indicative of sexual abuse, Mother falsely told the Harborview doctors that Father had a history of abusing Daughter. App. at 38-40; 49-80; 92- 105. This false
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