Tuesday, February 5, 2008

Three Days, No More, No Less

The Washington Supreme Court demonstrated once again why we need a change at the top. In Christiansen v. Ellsworth, handed down on December 6, 2007, the Court abandoned its most essential role, and it failed to recognize the real problems of real people in the real world.

The most important role of the Courts, in Bond’s opinion, is to protect the people from the power of government and the vested interests. The unfortunate fact is that government will at all times and at all levels seek to increase its power of control over the lives of those who are governed: the people. In times of great peril, like those we face now, the government’s will to power is the greatest and often, coincidentally, the people’s willingness to relinquish their own power grows. And the vested interests usually get their way, in any event. Only the courts can stand against this; but to do so, the Court must have some conception of what actually happens in the real world. In Christiansen v. Ellsworth, the Court ignored these fundamental principles.

Here are the facts of the case. A tenant failed to pay rent that was due on July 2. On Friday, July 3, the landlord posted on the tenant’s door a statutory Notice to Pay Rent or Vacate the premises before July 8. Friday was the first day of a 3 day holiday weekend and the next business day was July 6. On July 8, the landlord filed a Summons and Complaint against the tenant alleging what is known as Unlawful Detainer. The tenant, who presumably had moved out of the apartment, failed to contest the suit and a default was entered. Six years later, the landlord sought to collect on the $500 debt.

The tenant contested this collection action and relied on Civil Rule 6, which is one of the Civil Rules that the Supreme Court adopted to govern the civil procedure that applies to claims made in Washington courts. The Unlawful Detainer statute requires three days' notice, and the tenant complained that he got only 2 business days' notice due to the intervening holiday weekend. The statute does not tell us how to count the days, but Civil Rule 6 does, and it says that if the time in which something must be done is less than seven days then you may not count holidays and weekends in counting the days.

One would think, and I submit that all lawyers did or used to think, that if a statute requires three day’s notice then by operation of Civil Rule 6 one cannot count the days that fall on the weekend or holidays. I’ve defended unlawful detainer claims and would have never guessed that the Court would conclude that its own rule on how you are supposed to count time did not apply.

But that is what they did. After making an Alice in Wonderland journey through a standard dictionary and a legal dictionary, Justice Fairhurst concluded that three days means 72 hours – consisting of three 24 hour periods of time and no more – and it makes no difference that these three days happened to expire during a holiday weekend.

The Unlawful Detainer statute does not define how the time is counted, but it does state that the Civil Rules apply to its proceedings. The Whitman County trial court and Court of Appeals, who are, not coincidentally, closer to and better acquainted with the real problems of real people in the real world, quickly concluded that Civil Rule 6 applied and ruled that the landlord does not get to count weekends and holidays.

The Supreme Court disagreed and Justice Fairhurst, who wrote the opinion, said the notice was “a waiting period more than a deadline because it does not require action by the tenant,” failing to observe, it seems, that the notice required the tenant to pay rent or vacate the premises – a real problem for real people in the real world.

As our state’s highest Court, they get the last say, and that is why at the next election, we need at least one new face on the Court. Vote Bond for Justice.

1 comment:

Richard Pope said...

I guess the case goes back to the trial court. On remand, the defendant should argue that the orders entered on July 17, 1998 -- basically an order of default and a writ of restitution -- are res judicata. The landlord did not seek a money judgment at that time, and the case should be considered concluded as of July 17, 1998.

It is outrageous that a landlord could come back over six years later -- on December 29, 2004 -- and basically seek to reopen a closed case in order to add a monetary judgment.