No. 13-35008

_____________________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________________________________________

TRAVIS MICKELSON and DANIELLE H MICKELSON

Plaintiffs – Appellants

v.

CHASE HOME FINANCE LLC, et al.,

Defendants - Appellees

_____________________________________________________________

Appeal from the U.S. District Court for Western Washington, Seattle

Case No. 2:11-cv-01445-MJP

_____________________________________________________________

APPELLANTS’ MOTION TO CERTIFY ISSUES OF WASHINGTON CONSITUTIONAL

LAW REGARDING DISTRIBUTION OF LAND WITHIN WASHINGTONS’ BORDERS

STAFNE TRUMBULL, LLC

Scott E. Stafne, WSBA# 6964

Attorney for Appellants

239 N. Olympic Ave

Arlington, WA 98223

scott@stafnetrumbull.com

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I. Relief Requested

Travis and Danielle Mickelson, by and through their attorneys, Stafne Trumbull LLC,

move this Court to certify to the Washington Supreme Court pursuant to U.S. Const., art IV, § 4,

U.S. Const. Amend. X, 28 U.S.C. § 1652 (The Rules of Decision Act); and RCW Ch. 2.60

(Federal Court Local Law Certificate Procedure Act) issues of Washington State law 1.)

regarding the Washington state superior court’s original jurisdiction under Wash. Const. art. IV,

§ 6 with regard to cases at law and in equity “involving the title and possession of real estate”

pursuant to Washington’s Deeds of Trust Act, Wash. Rev. Code Ch. 61.24; and 2.) the statutory

construction of Wash. Rev. Code § 61.24.030(7).

II. Issues

1.) Whether this Court has subject matter jurisdiction to acquiesce to the provisions of

the Deeds of Trust Act, Wash. Rev. Code Ch. 61.24 (WDTA) if the superior courts of

Washington have no subject matter jurisdiction, i.e. authority, pursuant to Wash. Const. art IV, §

6 to acquiesce to the WDTA’s provisions?

2.) Whether this Court should certify an issue to the Washington Supreme Court

regarding the nature of the superior court’s subject matter jurisdiction, if any, under the WDTA

where the purpose of the statute, ie. to facilitate nonjudicial foreclosures of real property, is an

apparent usurpation of the superior court’s enumerated original exclusive jurisdiction to

judicially resolve all cases involving the title and possession of real estate pursuant to Wash.

Const. art. IV, § 6?

3.) Whether this Court should certify to the Supreme Court of Washington the question

as to how Wash. Rev. Code § 61.24.030 (7) should be construed so as to be consistent

Washington’s Constitution, due process clause, Wash. Const. art I, § 3, and equity?

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III. Evidence and Materials Relied Upon

The Mickelson's rely on the declaration of Scott E. Stafne as it pertains to this motion.

IV. Statement of Facts

The facts regarding this appeal, and those which are applicable to these motions, are set

forth in the appeal briefing.

Washington appellate courts have announced several precedents with regard to the

distribution of land via the WDTA while this case/appeal has been pending which are applicable

to this appeal. These include: Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34

(2012)(holding, inter alia, beneficiary must be owner and holder of the note Id. at 94 and 111);

Klem v Wash. Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179 (2013)(holding, inter alia, the trustee

undertakes the role of judge who must act impartially to satisfy constitution and equity Id. at

790); Schroeder v. Excelsior Mgmt. Grp., LLC, 177 Wn.2d 94, 297 P.3d 677 (2013)(holding,

inter alia, same Id. at note 3 and trustee’s failure to comply with requisites to trustee’s sale

render sale void Id. at 111-12); Walker v. Quality Loan Service Corp. of Wash., 176 Wash.App.

294, 308 P.3d 716 (Div. 1, 2013)(holding, inter alia, only a lawful beneficiary may appoint a

trustee Id. at 304-05; and Rucker v. NovaStar Mortgage, Inc., 175 Wash.App. 1066, 311 P.3d 31,

(Div. 1, 2013)(holding, inter alia, sale may be invalidated absent a properly appointed trustee Id.

at 39).

Another significant development in Washington law is the Washington Supreme Court’s

ongoing clarification of the legislative and executive branches lack of authority to interfere with

superior courts’ enumerated original jurisdiction under Wash.Const. art. IV, § 6. See Buecking v.

Buecking, ___ Wn.2d ___, ___ P.3d ___, 2013 WL 6805152 at 5 (Dec. 26, 2013); ZDI Gaming,

Inc. v. Wash. State Gaming Comm’n, 173 Wn.2d 608, 617, 268 P.3d. 929 (2012); State v. Posey,

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174 Wn.2d 131, 135, 272 P.3d 840 (2012); Blanchard v. Golden Age Brewing Co., 188 Wn. 396,

415, 63 P.2d 397 (1936); State ex rel. Roseburg v. Mohar, 169 Wash. 368, 375, 13 P.2d 454

(1932); Moore v. Perrot, 2 Wn. 1, 4, 25 P. 906 (1891). The foregoing authority construing

superior courts’ enumerated original jurisdiction as being “exclusive” in the Superior Court shall

be here after referred to as “Wash. Const. art. IV, § 6 precedent”.

V. Argument

B. Wash. Const. art. IV, § 6.

Wash. Const. Art. IV, § 6 provides in pertinent part:

Superior courts and district courts have concurrent jurisdiction in cases in equity.

The superior court shall have original jurisdiction in all cases at law which

involve the title or possession of real property, … and in all cases of actions of

forcible entry and detainer; ...; and for such special cases and proceedings as are

not otherwise provided for. The superior court shall also have original jurisdiction

in all cases and of all proceedings in which jurisdiction shall not have been by law

vested exclusively in some other court; … They shall have such appellate

jurisdiction in cases arising in justices' and other inferior courts in their respective

counties as may be prescribed by law. …. Said courts and their judges shall have

power to issue writs ... Id.

This provision gives Washington superior courts several types of jurisdiction. These

include original enumerated jurisdiction; original general jurisdiction; appellate jurisdiction as

“prescribed by law,” writ jurisdiction; and concurrent jurisdiction with the districts courts in

equity1 . Those categories of enumerated cases reserve of to the superior courts’ original

jurisdiction impacted by the WDTA’s system of nonjudicial foreclosure include: “equity”;2 “all

1 As originally ratified in 1889 art. IV, § 6 stated in pertinent part: “The superior court shall have original

jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property, …”

Because of the exclusive nature of this original jurisdiction, Washington’s constitution had to be amended in 1979 to

give district court’s concurrent jurisdiction in equity. 2 At the time Washington’s constitution was ratified equity played a primary role in the protection of property

rights. See e.g. Brush v. Ware, 40 U.S. 93, 15 Peters 93, 10 L. Ed. 672 (1841); In re Sawyer, 124 U.S. 200, 8 S. Ct.

482, 31 L. Ed. 402 (1888)("It is elementary law, that the subject matter of the jurisdiction of a court of chancery is

civil property.”) As for Washington cases, see e.g. Rozell v. Vansyckle, 11 Wash. 79, 39 P. 270 (1895); Paxton v

Coral Danforth, 1 Wash. 120; 23 P. 805 (1890); Lemon v. Waterman, 2 Wash. Terr. 485, 7 P. 899 (1885); Mann v.

Young, 1 Wash. Terr. 454 (1874).

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cases at law which involve the title or possession of real property”; and “actions of forcible

entry and detainer”.3

The relevant issues of subject matter jurisdiction applicable to this appeal are: 1.) What

type of jurisdiction did the superior court of Washington have over Mickelson’s case with regard

to issues involving the title and possession of land within Washington’s borders?; 2.) What type

of jurisdiction did the federal district court have over this case sitting within its diversity

jurisdiction as a substitute for the state superior court?; and 3.) What type of jurisdiction does

this Court, i.e. the United States Court of Appeals for the Ninth Circuit, have over the United

States district court and Washington superior courts to resolve the conflict between the

Washington Supreme Court’s art. IV, § 6 precedent and cases construing the WDTA?

These issues arises belatedly here because for a long stretch of time Washington courts

defaulted to federal jurisprudence, which pursuant to Article III of the United States Constitution

relies heavily on Congress to establish federal courts’ jurisdiction. In this regard, several

decisions of the Washington Supreme Court, now abrogated, assert: “jurisdiction is comprised of

three elements: jurisdiction over the person, jurisdiction over the subject matter, and jurisdiction

to render the particular judgment sought (sometimes called jurisdiction of the particular case).”

See State v. Posey, 174 Wn.2d 131, 138, 272 P.3d 840 (2012)(disapproving of State v. Werner,

129 Wash. 2d 485, 493, 918 P.2d 916 (1996)).

The concept of “jurisdiction of the particular case” makes sense for federal courts as they

are courts of “limited jurisdiction presumed to lack jurisdiction” in a particular case unless a

statute affirmatively gives them the power to decide the controversy. A-Z Int’l v Phillips, 323 F.

3 This reference is not intended to implicate Unlawful Detainer Act generally; rather it refers to RCW 61.24.60

specifically. That statutory provision grants possession under RCW CH. 59.12 based on a trustee’s nonjudicial sale

of title to property; notwithstanding that Wash. Const. art IV, § 6 requires cases involving possession of property be

resolved by superior courts pursuant to their original jurisdiction.

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3d 1141, 1145 (9th Cir. 2003); Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 552, 554 (9th

Cir. 1992). But it does not make sense for Washington superior courts, which derive original

jurisdiction in broad categories of cases, including all cases involving the title and possession of

real estate, directly from Wash. Const. art. IV, § 6.

The most recent example of the Const. art. IV, § 6 precedent is Buecking v. Buecking,

___ Wn.2d ___, ___ P.3d ___, 2013 WL 6805152 (Dec. 26, 2013), which involved the superior

courts original enumerated jurisdiction “... in all cases …of divorce…”. In Buecking a

unanimous Washington Supreme Court observed:

The legislature cannot restrict the court's jurisdiction where the constitution has

specifically granted the court jurisdiction. Posey, 174 Wn.2d at 135 (citing

Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 418, 63 P.2d 397

(1936))…Thus, legislation with the purpose or effect of divesting a

constitutional court of its powers is void, while on the other hand the

legislature may prescribe reasonable regulations that do not divest the court

of its jurisdiction. Blanchard, 188 Wash. at 414, 418.

Buecking v. Buecking, ___ Wn.2d ___, ___ P.3d ___, 2013 WL 6805152 at 5 (Dec. 26,

2013)(emphasis supplied). The last sentence of the above quote is instructive: The legislature

cannot by their power to enact law, divest a constitutional court of its enumerated, original

jurisdiction.

It is undisputed that the sole purpose for enactment of the WDTA in 1965 was to create

an inexpensive, alternative nonjudicial foreclosure system for lenders. In People’s Nat’l Bank v

Ostrander, 6 Wn. App. 28, 491 P.2d 1058 (1971): “[t]he act was designed by the legislature to

avoid time-consuming judicial foreclosure proceedings and to save substantial time and money

to both the buyer and the lender.” Id. at 31. Washington Supreme Court precedent indicates in

Cox v Helenius, 103 Wn.2d 383, 693 P.2d 683 (1985) “the deed of trust foreclosure process is

conducted without review or confirmation by a court….” Id. at 388. In 1998 Justice Dore wrote

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in dissent “[t]he Legislature adopted the [Deeds of Trust] Act in 1965 because it was concerned

that the cumbersome judicial foreclosure procedures were inhibiting residential financing in the

state.” Donovick v. Seattle-First Nat'l Bank, 111 Wn.2d 413, 419, 757 P.2d 378 (1988)(Dore

dissenting). In Queen City Sav. & Loan Ass'n v. Mannhalt, 111 Wn.2d 503, 760 P.2d 350 (1988)

the Washington Supreme Court observed: “[t]he place of sale section of the Deeds of Trust Act

(RCW 61.24.040(5)) allows the nonjudicial foreclosure sale of parcels of property located in

different counties, …” Id., at 506 (emphasis supplied).

Just as the WDTA is clear that its purpose was to take foreclosures by lenders out of the

court system all together when the lender elected to do so, it is just as obvious the Constitution

prohibits the exercise of such legislative power in violation of Wash. Const. art. IV, § 6.

Article IV was debated about longer than any other article, except that which involved

the disposition of the tidelands.4 Current Washington Supreme Court Justice Charles Wiggins

observed in a series of articles about Washington’s constitution that the delegates to the

convention made a conscious choice not to allow the legislature to establish the superior court’s

original jurisdiction.

The judiciary committee chose to establish each court and its jurisdiction within

the body of the constitution. Delegate Hoyt of Seattle, a former territorial

Supreme Court judge, proposed leaving the jurisdiction of the court to the

Legislature. Turner responded that this was not a matter of legislation, but of

establishing a principle of government, and Hoyt’s proposal lost by a decided

vote.5

According to Theodore Stiles, one of the 23 lawyer delegates to the convention6 the decision

4 Wiggins, Charles K., George Turner and the Judiciary Article. Part I: A Character from Plutarch, 43 Washington

State Bar News 46 (September 1989). 5 Wiggins, Charles K., George Turner and the Judiciary Article. Part II : The Constitutional Convention of 1889

Creates a Judiciary for Washington, 43 Washington State Bar News 17, 18 (October 1989)(hereafter Turner

Judiciary). 6 Wiggins, Charles K., The Twenty-three Lawyer Delegates to the Constitutional Convention, 43 Washington State

Bar News 9-14 (November 1989). Stiles and two other lawyer-delegates (Hoyt and Dunbar) were elected to the first

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to constitutionally determine the original jurisdiction of courts of record was the most significant

provision voted upon by the framers.

Among the meritorious provisions of our constitution which had any degree of

novelty at all, I pronounce the judicial system first. Not many of the states have

constitutional courts, and still fewer of them have undertaken to define the

jurisdiction of their courts by the higher law.7

This innovation by the Washington framers can be understood when Const. art. IV, § 6 is

compared to Article III of the United States Constitution. Both the United States’ Constitution

and Washington’s Constitution vest “judicial power” in the courts of each respective sovereign.

The federal constitution, however, vests judicial power in only “one Supreme Court, and in such

inferior courts as the Congress may from time to time ordain and establish.” U. S. Const. art. III,

§ 1. Washington’s Constitution, on the other hand, vests judicial power “in a supreme court,

superior courts, justices of the peace, and such inferior courts as the legislature may provide.”

Wash. Const. art. IV, § 1. Thus, U.S. Const. art. III, § 1 left it up to Congress to establish the

courts in the federal judicial system. Washington’s framers chose not to give the state legislature

this authority, except with regard to minor courts. See Wash. Const. art IV, §§ 10 & 11. See also

Moore v. Perrot, 2 Wash. 1, 4-5, 25 P. 906 (1891)

The consequences of delegating original jurisdiction in the “higher law” would have been

well known to the lawyers,8 who participated in writing the Constitution. Marbury v. Madison, 5

U.S. 137 (1 Cranch 137), 173-180, 2 L. Ed. 2d 60 (1803) had held the grant of original

Washington Supreme Court. Id. at 9. Lawyers constituted almost a third of the convention’s 75 delegates. 7 Stiles, Theodore L., The Constitution of the State and Its Effects Upon Public Interests, 4 Wash. Hist. Q. 281

(1913). 8 Lawyers constituted the largest vocational group among the convention delegates. Utter, Robert J., Freedom and

Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7

U.Puget Sound 491, at 520.

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jurisdiction to the judicial department by the Constitution could not be altered by Congress9.

Washington’s framers avoided the situation encountered in Ames v. Kansas, 111 U.S. 449, 4 S.

Ct. 437, 28 L. Ed. 482 (1884) by constitutionally creating courts of record having both

enumerated and general original jurisdiction. The framers intended that the Constitution, not the

legislature, would give constitutionally created courts of record their enumerated original

jurisdiction. See Wash. Const. art IV, §§ 4 and 6. See Wiggins, Charles K., George Turner and

the Judiciary Article. Part II: The Constitutional Convention of 1889 Creates a Judiciary for

Washington, 43 Washington State Bar News 17, 18 (October 1989). See also Moore v. Perrot, 2

Wash. 1, 4-5, 25 P. 906 (1891).10

Blanchard v. Golden Age Brewing Co., 188 Wn. 396, 418, 63 P.2d 397 (1936)11

is

analytically the same as this case, except for the fact that the district court below acquiesced to

the legislature’s usurpation of the superior court’s “duty” to consider all cases involving the title

and possession of land within the context of the superior court’s original jurisdiction. Blanchard

involved the Labor Disputes Act; a statute which purported to limit the superior courts’ original

equity jurisdiction under Wash. Const. art. IV, § 6.12

The statute in Blanchard specifically stated

the superior court had no jurisdiction, i.e. authority, to issue the injunction the trial court entered

9 “When an instrument organizing fundamentally a judicial system, ... enumerates its powers, and proceeds so far to

distribute them, … by declaring the cases in which it shall take original jurisdiction, and that in others it shall take

appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original,

and not appellate…” 5 U.S. 175. 10 Two years after the Constitution was adopted, a five justice Washington Supreme Court, including former

delegates Stiles, Dunbar, and Hoyt (the latter of which proposed leaving jurisdiction to the legislature) unanimously

held the Constitution’s grants of enumerated original jurisdiction involved categories of cases that were within the

exclusive jurisdiction of the superior court. ... It is the enumeration of the particular matters which are within the original jurisdiction of the

superior courts, which we interpret to mean that those matters pertain to them exclusively. ... Moore v. Perrot, 2 Wash. 1, 4-5, 25 P. 906 (1891)(emphasis added). 11 For recent cases citing Blanchard for the proposition that the legislature has no power to interfere with the

exercise of the superior courts’ original enumerated jurisdiction, see Buecking, Slip op. at 9-10; Posey, 174 Wn. 2d

at 135; Cary v. Mason County, 173 Wn.2d 697, 703, 272 P.3d 194 (2012); ZDI Gaming, Inc. v. Wash. State

Gambling Comm'n, 173 Wn.2d 608, 616, 268 P.3d 929 (2012). 12 Wash. Const. Art IV, § 6 was amended in 1979 to give the district court concurrent equity jurisdiction.

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against brewery officials. The brewing company, relying on the clear terms of the statute,

violated the injunction and was held in contempt. On appeal, the brewery officials claimed the

superior court had no authority to issue the injunction. Washington’s Supreme Court disagreed.

From beginning to end, it [the Labor Disputes Act] breathes the spirit of limitation

upon the jurisdiction of the court. Its title, by its very terms, announces a

limitation on "the powers of the courts of this state." Section after section begins

with the formula that "No court of the State of Washington or any judge or judges

thereof shall have jurisdiction to issue any restraining order or temporary or

permanent injunction in a case involving or growing out of a labor dispute,"

except under the restrictions imposed by the act. If the act has any purpose at all,

manifestly it is to deprive the courts of the equity powers which they had

customarily and rightfully been exercising.

Blanchard, 188 Wn. at 416.

Application of Blanchard should lead to the same result here. Such a result is not an

affront to the legislature. It is the Washington legislature which has demeaned the Washington

Constitution by purporting to take original, exclusive jurisdiction from the superior court and

give it over to financially incentivised trustees.13

B. Statutory Construction of RCW 61.24.030(7).

RCW 61.24.030(7)(a) and (b) provide:

It shall be a requisite to a trustee sale:

[* * *]

(7)(a) That, for residential real property, before the notice of trustee's sale is

recorded, transmitted, or served; the trustee shall have proof that the

beneficiary is the owner of any promissory note or other obligation secured by

the deed of trust. A declaration by the beneficiary made under the penalty of

perjury stating that the beneficiary is the actual holder of the promissory note

13 The Washington Supreme Court has noted in two cases that trustees which oversee nonjudicial foreclosures are

financially incentivised to make the lending and servicing industry happy. 13“As a pragmatic matter, it is the lenders, servicers, and their affiliates who appoint trustees.

Trustees have considerable financial incentive to keep those appointing them happy and very little

financial incentive to show the homeowners the same solicitude.” Klem v. Washington Mut. Bank,

176 Wn.2d 771, 789, 295 P.3d 1179 (2013)(citing Bain v. Metro. Mortg. Grp., Inc. 175 Wash.2d

83, 95-97, 285 P.3d 34 (2012)).

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or other obligation secured by the deed of trust shall be sufficient proof as

required under this subsection.

(b) Unless the trustee has violated his or her duty under RCW 61.24.010(4), the

trustee is entitled to rely on the beneficiary's declaration as evidence of

proof required under this subsection.

The plain language of RCW 61.24.030(7)(a) requires “the trustee shall have proof that the

beneficiary is the owner of any promissory note or other obligation secured by the deed of trust”

before initiating nonjudicial foreclosure proceedings. Black’s Law Dictionary defines “proof” as

“[e]vidence that substantiates a truth or untruth to the authorities such as a court of law.” Black’s

Law Dictionary (9th ed. 2009). Thus the judicial inquiry posed by .030(7)(a) requires “proof”

that: 1.) an entity is a beneficiary within the meaning of RCW 61.24.005(2); 2.) that this WDTA

beneficiary owns any promissory note; and, 3.) secured by the borrower’s deed of trust.

Because the legislature has created an official,14

i.e. the substitute judge/trustee, to

perform a judicial inquiry, as a prerequisite to performing a state sanctioned judicial power of

sale, which results in the resolution of a case or controversy involving the the title and possession

of real estate, see Wash. Const. art IV, § 6, the district court and this Court must construe RCW

61.24.030(7) so that it is consistent with Washington’s Constitution and equity. Klem, 176 Wn.

2d at 790.15

14 The legislature’s creation of an extrajudicial official to exercise judicial power is constitutionally problematic.

First, Art. II, § 28(12) specifically prohibits “legalizing … the unauthorised or invalid act of any officer.” Second,

art. IV, § 1 confers the exercise of all judicial power upon the courts, which may act in their original or appellate

jurisdiction. But the system intended to be created is both “nonjudicial” and not reviewable by way of an appeal. 15 In Klem, the Washington Supreme Court stated:

In a nonjudicial foreclosure, the trustee undertakes the role of the judge as an impartial third party

who owes a duty to both parties to ensure that the rights of both the beneficiary and the debtor are

protected. Cox, 103 Wn.2d at 389. While the legislature has established a mechanism for

nonjudicial sales, neither due process nor equity will countenance a system that permits the theft

of a person's property by a lender or its beneficiary under the guise of a statutory nonjudicial

foreclosure. An independent trustee who owes a duty to act in good faith to exercise a fiduciary

duty to act impartially to fairly respect the interests of both the lender and the debtor is a

minimum to satisfy the statute, the constitution, and equity, at the risk of having the sale voided,

title quieted in the original homeowner, and subjecting itself and the beneficiary to a CPA claim.

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The federal court stubbornly refuses to follow the language of RCW 61.24.030(7) and the

Washington Supreme Court’s construction thereof, which prohibits the initiation of nonjudicial

foreclosure proceeding without compliance with RCW 61.24.030(7). For example, the district

Court writes:

This Court [the United States District Court for the Western District of

Washington] has repeatedly rejected the theory that only the owner of the Note

has the authority to enforce its terms. See, e.g., Corales v. Flagstar, 822 F.Supp.

2d 1102, 1107 (W.D. Wash. 2011); Zalac v. CTX Morg. Corp., 2013 U.S. Dist.

LEXIS 20269, 2013 WL 1990728, *3 (W.D. Wash. 2013). Rather, Flagstar

derived its appointment authority from its position as the holder of the indorsed

Note, a position that is not undermined by the fact that Fannie Mae also had an

ownership interest in the Note at the time the appointment was made. See Corales,

822 F.Supp. 2d 1102, at 1107-08 (explaining that "even if Fannie Mae has an

interest in Plaintiffs' loan, Flagstar has the authority to enforce" the indorsed Note

that it held in its possession). Nor does the alleged robo-signing of the assignment

and appointment instruments lead the Court to doubt their validity or Flagstar's

consequent ability to enforce the Deed. See Zhong v. Quality Loan Serv. Corp. of

Wash., et al., No. C13-0814JLR, 2013 U.S. Dist. LEXIS 145916 (W.D. Wash.

Oct. 7, 2013) [*9] (noting that "courts routinely reject 'robo-signing' as a

cognizable legal theory."). As Plaintiffs have been unable to establish to the

Court's satisfaction that NWTS foreclosed without authority, they are unable to

meet the standards of likely success sufficient to warrant a preliminary injunction

on the merits of their claims under the Consumer Protection Act, the Deed of

Trust Act, and for wrongful foreclosure, negligence, and to set aside the trustee's

sale.

Cameron v Acceptance Capital Mortg. Corp., 2013 U.S. Dist. LEXIS 151134, 8-9 (Oct. 16,

2013).

Washington courts, construing a Washington statute must “give effect to every word,

clause and sentence of a statute,” see e.g. Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683

… Klem’s construction of the DTA so as to be consistent with the constitution is a familiar maxim of statutory

construction in Washington. Compare ZDI Gaming, Inc. v. Wash. State Gaming Comm’n, 173 Wn. 2d 608, 616, 268

P. 3d. 929 (2012)(Construing jurisdictional provision to be venue provision so as to avoid unconstitutionality of

statue); Haynes v. Seattle School District No. 1, 111 Wn.2d 250, 253-4, 758 P.2d 7 (1988)(Construing de novo

review to include review under arbitrary and capricious standards when legislative actions of school board are

challenged.) with Household Fin. Corp. v State, 40 Wn. 2d. 451, 456-7, 244 P.2d 260 (1952)(Determining the Court

could not construe legislature’s attempt to delegate administrative power to the courts as being constitutional.)

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(1985). Why don’t federal judges have to apply this rule of construction? These judges

consistently read the word “owner” out of the first sentence of RCW 61.24.030(7)(a).16

In Bain

v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 285 P.3d 34 (2012) the Washington Supreme Court

observed that RCW 61.24.030(7)(a) and (8)(l) mean exactly what they say; namely, that:

“the trustee shall have proof that the beneficiary is the owner of any

promissory note or other obligation secured by the deed of trust” and shall

provide the homeowner with “the name and address of the owner of any

promissory notes or other obligations secured by the deed of trust” before

foreclosing on an owner-occupied home. RCW 61.24.030(7)(a), (8)(l).”

Bain, 175 Wn.2d at 93-4. Bain’s construction of the statute was accurately applied by the

Washington Court of Appeals in an Grant v. Horizon Home Loans:

Under the deeds of trust act (DTA), chapter 61.24 RCW, the trustee must “have

proof that the beneficiary is the owner of any promissory note or other

obligation secured by the deed of trust” before issuing a notice of trustee's sale.

Thus, if BNYM is not the owner of the note, then neither it nor Quality as its

agent and/or trustee had authority to foreclose, and the initiation of that

proceeding was unlawful.

Grant v. Horizon Home Loans, 2012 Wash. App. LEXIS 1246, at *11 (Wash. Ct. App. Mar. 29,

2012).

Federal judges holdings that RCW 61.24.030(7) allows a “holder” under the UCC to

initiate nonjudicial foreclosure proceedings is disingenuous because Bain rejected Horvath v.

Bank of N.Y., NA, 641 F.3d 617, 620 (4th Cir. 2011) See Bain, 175 Wn.2d at 105. Horvath’s

reasoning is virtually identical to the holdings these federal judges are now improperly foisting

16 See e.g. Rouse v. Wells Fargo, N.A., 2013 U.S. Dist. LEXIS 144013, at (W.D. Wash. October 2,

2013)(“Moreover, [federal] courts have uniformly rejected claims that only the ‘owner’ of the note may enforce

it.”); Zalac v CTX Mortgage Grp., Case No. C12-01474 MJP, 2013 WL 1990728 at * 3 (W.D. Wash. May 13,

2013)(granting motion to dismiss where "Defendant [] asserts that it is the true holder of the note, even if Fannie

Mae is the owner of the note.") (emph. in original); Corales v. Flagstar Bank, FSB, 822 F. Supp. 2d 1102, 1107-08

(W.D. Wash. 2011) (granting motion to dismiss in functionally identical circumstances where lender sold loan to

Fannie Mae but then proceeded to foreclose in its own name - "Thus, even if Fannie Mae has an interest in Plaintiffs'

loan, Defendant has the authority to enforce it.").

13

on Washington homeowners in direct contradiction of the Washington Supreme Court’s

construction of the WDTA.

The efforts of some federal judges to rewrite the WDTA to favor lenders is belied by the

legislative history of RCW 61.24.030(7)(a). See Mickelsons’ Court of Appeals’ Reply Brief, pp.

15-21. See also Motion to take Judicial Notice of Legislative History filed with this Court.

C. This Court should certify to the Washington Supreme Court the issue as to what, if any,

subject matter jurisdiction Washington superior courts have to enforce and/or construe the

WDTA’s alternative system of nonjudicial foreclosure pursuant to Wash. Const. art. IV, §

6.

1. This Court has a constitutionally enforceable duty under U.S. Const., Art III, § 2; Art.

IV, § 4; Amend 10; and the principles of federalism and dual sovereignty to certify the

above described issues of Washington state law to the Washington Supreme Court for

their authoritative resolution.

Under our federal system,17

the States possess sovereignty concurrent with that of the

Federal Government, subject only to limitations imposed by the Supremacy Clause. See Nat'l

Fed'n of Indep. Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012); Printz v.

United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997); Gregory v. Ashcroft,

501 U.S. 452, 457-58, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991). In New York v. United States,

505 U.S. 144, 178-79, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) the Supreme Court noted that

the text of U.S. Const. art. VI, § 2 binds state judges as part of their judicial function to apply

federal law when it constitutes the supreme law of the United States. However, the Court noted

that Art. VI did not require the States as sovereigns (or the State’s other branches of

government), to perform “tasks” for the federal government unless the assigned tasks were

consistent with those limited powers the Constitution granted the federal government. The

17 Federalism, central to the constitutional design, adopts the principle that both the National and State Governments

have elements of sovereignty the other is bound to respect. Arizona v. United States, 132 S. Ct. 2492, 2500, 183 L.

Ed. 2d 351 (2012).

14

theme of these cases is the Constitution intends for the continued existence of dual sovereigns in

the “compound republic” of the United States of America. See infra.

United States Const. art VI, § 2 is clear that federal courts have no direct power over state

courts; rather the constitutional authority federal courts have over state courts stems from the

obligation of state judges to be bound by federal laws and treaties as construed by the federal

courts pursuant to the separation of powers. But federal courts do not have authority to enact

such laws and treaties; only to construe them. Thus, when confined to their constitutional role,

the framers had confidence that “the judiciary is beyond comparison the weakest of the three

departments of power18

”. The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). See also

http://www.constitution.org/fed/federa78.htm

The constitutional power of the judicial department involves very limited power, which

only applies where a state law is alleged to run afoul of federal law. It does not allow the federal

courts roving jurisdiction to determine the meaning of state statutes, which do not conflict with

federal law. “There is no federal general common law. Congress has no power to declare

substantive rules of common law applicable in a State whether they be local in their nature or

"general," be they commercial law or a part of the law of torts. Erie R.R. v. Tompkins, 304 U.S.

64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

A state court is bound to follow the United States Supreme Court’s construction of a

federal law not because of a structural hierarchy among the judicial departments of dual

sovereigns, but only because the Constitution is the Supreme law of the United States where

Congress constitutionally exercises one of its limited powers through a law which must be

ultimately construed by the judicial department. Art. VI, § 2 provides:

18 Citing: “ [t]he celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the

judiciary is next to nothing." -- Spirit of Laws. Vol. I, page 186.”

15

This Constitution, and the laws of the United States which shall be made in

pursuance thereof; and all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme law of the land; and the judges

in every state shall be bound thereby, anything in the Constitution or laws of any

State to the contrary notwithstanding.

The supremacy contemplated by our forefathers was one of law; not office or personality.

The check on federal supremacy was the creation of a system of dual sovereigns, which

purposely limited the authority of the federal government so as to prevent the destruction of state

sovereignty altogether. U.S. Const. Art. IV, § 4; Amend. 10.

In Sebelius and Printz the federal legislative and executive branches argued that the States,

as sovereigns, could be compelled to do their bidding. The States argued this had the effect of

nullifying the most basic aspects of their sovereignty. See Sebelius, at 132 S. Ct. at 2604-05;

Printz, 521 U.S. at 907. The United States Supreme Court noted that if the federal government

was free to direct the States to do all things Congress and the President desired, there would be

no aspect of dual sovereignty left. Id.

Federalism, like the separation of powers, was a concept adopted as a part of our

Constitution to protect the rights of the people. James Madison argued in The Federalist that the

division of power between national and state governments would check abuses of governmental

power. The Federalist No. 51, at 351 (J. Madison) (J. Cooke ed. 1961). See also

http://www.constitution.org/fed/federa51.htm. Madison contended that "[i]n the compound

republic of America a double security arises to the rights of the people.” Id. “The different

governments will controul each other, at the same time that each will be controuled by itself." Id.

Thomas Jefferson stated similar beliefs in a letter he wrote in 1816. See Jones Merritt, D.,

“The Guarantee Clause and State Autonomy: Federalism For A Third Century”, 88 Colum. L.

Rev 1, 22 (Jan., 1988):

16

[T]he way to have good and safe government is not to trust it all to one, but to

divide it among the many, distributing to every one exactly the functions he is

competent to . . . . It is by dividing and subdividing these republics from the great

national one down through all its subordinations, until it ends in the administration

of every man's farm by himself; by placing under everyone what his own eye may

superintend, that all will be done for the best . . . . The elementary republics of the

wards, the county republics, the State republics, and the republic of the Union,

would form a gradation of authorities, standing each on the basis of law, holding

everyone its delegated share of powers, and constituting truly a system of

fundamental balances and checks for the government. Id.

Article IV, § 4 of the United States Constitution states: “[t]he United States shall guarantee to

every state in this union a republican form of government, …”. The “rule of law” is an

indisputable aspect of a republican form of government. Natelson, Robert G., “A Republic, Not a

Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause”, 80 Texas Law

Review 807 825-6, especially note 91, (2002). This is true at both the state and federal levels.

Under the United States Constitution power is separated into three branches; a republican

legislature representing the will of the people; the executive; and the courts, which are

responsible for declaring the meaning of federal law enacted by the other two branches of

government. Cf. The Federalist No. 78, supra.

Washington’s republican system of government is identical in this regard to that

established by the United States Constitution; except that Washington’s framers gave the judicial

branch of government more authority with regard to enforcing citizen rights because of the

framers longstanding distrust of the legislature resulting from its past corruption at the hands of

corporations. However, this difference is not a relevant one for the issue Mickelson’s raise here.

What is relevant is that both Washington and the United States are sovereign republics,

guaranteed by the United States Constitution to “the rule of law” within their borders as per their

respective constitutions, as determined by their highest courts.

The language of the guarantee clause has two aspects. The clause prohibits the states from

17

adopting non-republican forms of government. As long as the states adhere to republican

principles, the clause forbids the federal government from interfering with state governments in a

way that would destroy their republican character. Merritt, “Article: The Guarantee Clause and

State Autonomy: Federalism for a Third Century”, 88 Colum. L. Rev. 1, 25 (1988). The United

States Supreme Court has held the right of each State to elect its own officials, including judges,

is a basic element of sovereignty. Gregory v. Ashcroft, 501 U.S. 452, 457-58, 111 S. Ct. 2395,

115 L. Ed. 2d 410 (1991). Further, the Supreme Court has held that the federal government

cannot force state officials into service absent specific Constitutional authority to do so.

Sebelius, at 132 S. Ct. at 2604-05; Printz, 521 U.S. at 907. Given these constraints upon the

division of State and federal sovereignty it makes no sense to presume that the federal judicial

department can violate state sovereignty by virtue of its own Constitutional power; as it has none

absent a case or controversy invoking federal law.

To put it bluntly, federal courts have no Constitutional authority to usurp the role of the

Washington Supreme Court in construing the meaning of the Washington Constitution, absent a

claim the state constitution conflicts with federal law. Congress cannot give the federal courts

any jurisdiction to determine the meaning of state constitutions in the absence of a conflict with

federal law without breaking the guarantee made to the states in U.S. Const. art IV, § 4 and by

ignoring the federal structure of our government. Erie v Tompkins, supra.

Under Washington’s Constitution their meaning should be left to the Courts of that State

republic.

2. This Court should exercise its discretion to certify the above described issues of

Washington state law to the Washington Supreme Court for their authoritative resolution.

All federal courts must consider the appropriateness of certifying issues of state law to

the state’s highest court for resolution, but the ultimate decision to do so rests with the discretion

18

of the federal court. Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40 L. Ed. 215

(1974); Parents Involved Cmty. Schs v. Order Seattle Sch. Dist., 294 F.3d 1085, 1086 (2002).

Presuming that certification is discretionary, this Court should exercise its discretion here

so as to ask the Washington Supreme Court to determine 1.) whether superior courts in

Washington have subject matter jurisdiction to acquiesce to the WDTA pursuant to the Wash.

Const., art. IV, § 6; and 2.) how RCW 61.24.030(7) must be construed so as to be consistent with

Washington’s Constitution.

Under our federalist system of government certain issues have been traditionally

considered matters of local concern. See e.g. United States v. Windsor, 570 U.S. 12, 133 S. Ct.

2675, 2689-90, 186 L. Ed. 2d 808, (2013)(“By history and tradition the definition and regulation

of marriage, as will be [***31] discussed in more detail, has been treated as being within the

authority and realm of the separate States.”) Historically, the distribution of land within a State’s

boundary has been considered an issue of State concern. “It is an established principle of law, …

, that the disposition of immovable property … is exclusively subject to the government within

whose jurisdiction the property is situated.” United States v. Fox, 94 U.S. 315, 320-21(1877).

This case is like Louisiana Power & Light Co. v. City, 360 U.S. 25, 79 S. Ct. 1070, 3 L.

Ed. 2d 1058 (1959) to the extent that case dealt with a state statute regarding the distribution of

land. The judge, on his own motion, ordered that proceedings “will be stayed until the Supreme

Court of Louisiana has been afforded an opportunity to interpret Act 111 of 1900." The statute

had not been construed by that State’s Supreme Court. The district court wanted to “make

certain that that power has been granted by the state to the subdivision in the form of its

attempted exercise”, 153 F. Supp. 515, 517 (D. La. 1957), and therefore requested the Louisiana

Supreme Court to construe the statute. The Fifth Circuit reversed. The Supreme Court reversed

19

the Circuit Court because of those federalism factors inherent in a state sovereign’s exercise of

authority regarding real property within its boundaries.

The reasoning of the Supreme Court is applicable here and this Court should follow it.

VI. CONCLUSION

This Court should certify the issues identified herein, or this Court’s articulation thereof,

to the Supreme Court of Washington for ultimate resolution of those issues of Washington state

law premised on the mandates of Washington’s Constitution.

DATED this 10th day of February, 2014 at Arlington, Washington.

Respectfully Submitted,

STAFNE TRUMBULL, LLC

/s/ Scott E. Stafne

Scott E. Stafne, WSBA #6964

239 North Olympic Avenue

Arlington, Washington 98223

Phone: (360) 403-8700

Fax: (360) 386-4005