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

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 courts 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 Washingtons 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 WDTAs provisions? 2.) Whether this Court should certify an issue to the Washington Supreme Court regarding the nature of the superior courts 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 courts 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 Washingtons 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 trustees failure to comply with requisites to trustees 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 Courts 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 Commn, 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 WDTAs system of nonjudicial foreclosure include: equity; 2 all

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 possessi on of real property, Because of the exclusive nature of this original jurisdiction, Washingtons constitution had to be amended in 1979 to give district courts concurrent jurisdiction in equity. 2 At the time Washingtons 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 Mickelsons case with regard to issues involving the title and possession of land within Washingtons 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 Courts 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 Intl 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 trustees 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 Peoples Natl 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 Washingtons constitution that the delegates to the convention made a conscious choice not to allow the legislature to establish the superior courts 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 Hoyts proposal lost by a decided vote.5 According to Theodore Stiles, one of the 23 lawyer delegates to the convention6 the decision

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 Washingtons 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. Washingtons 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. Washingtons 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 conventions 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 Congress 9. Washingtons 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 legislatures usurpation of the superior courts duty to consider all cases involving the title and possession of land within the context of the superior courts 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
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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 Constitutions 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. Washingtons 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
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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. 13As 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. Blacks Law Dictionary defines proof as [e]vidence that substantiates a truth or untruth to the authorities such as a court of law. Blacks 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 borrowers 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 Washingtons Constitution and equity. Klem, 176 Wn. 2d at 790.15

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The legislatures 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 Courts 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
Klems 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 Commn , 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 legislatures attempt to delegate administrative power to the courts as being constitutional.)
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(1985). Why dont 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. Bains 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. Horvaths reasoning is virtually identical to the holdings these federal judges are now improperly foisting

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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.").
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on Washington homeowners in direct contradiction of the Washington Supreme Courts 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 WDTAs 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 States 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).
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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 Courts 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.
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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):
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[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 Constitutions 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. Washingtons republican system of government is identical in this regard to that established by the United States Constitution; except that Washingtons 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 Mickelsons 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
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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 Washingtons 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 states highest court for resolution, but the ultimate decision to do so rests with the discretion
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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 Washingtons 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 States 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 States 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
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the Circuit Court because of those federalism factors inherent in a state sovereigns 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 Courts articulation thereof, to the Supreme Court of Washington for ultimate resolution of those issues of Washington state law premised on the mandates of Washingtons 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

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