Math for Lawyers: The Importance of Counting to Five

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BY David J.S. Ziff

You don’t need to know much math as a lawyer. But you do need to know how to count to five. As U.S. Supreme Court Justice William Brennan Jr. used to say, “Five votes can do anything around here.” The same is true of our Washington Supreme Court. Five votes will create a precedent that binds all the courts in our state—and may even bind future iterations of the Washington Supreme Court itself. 

This so-called “Rule of Five” might appear simple in the abstract, but in practice things can get messy. For example, imagine you’re doing some legal research before drafting a motion. You find an on-point opinion from the Washington Supreme Court. The opinion looks great! It has some excellent language and a holding that supports the argument you want to advance. You’re happy. And you have no reason to question the authority of the opinion. Neither Westlaw nor LexisNexis indicate that the opinion is anything other than the opinion of the court. It’s not color-coded or otherwise marked as a concurrence or dissent. The opinion looks like any other majority opinion.

Unfortunately, it’s not. This supposed “lead” opinion was signed by four justices, not the required five. The only way you would know that fact is if you took the time to count the joining justices’ names at the end of the opinion.

The problem of counting to five arises more often than you might think. In fact, the Washington Supreme Court itself recently ran into this problem in State v. Carter,¹1 State v. Carter, No. 101777-4 (Wash. May 23, 2024), www.courts.wa.gov/opinions/pdf/1017774.pdf. decided in May 2024. Carter involved a superior court’s authority to impose a determinate sentence for aggravated first-degree murder committed when the defendant was between 18 and 20 years old. In reaching its decision, the Carter majority relied on In re P.R.P. of Monschke.²2 197 Wn.2d 305, 482 P.3d 276 (2021). The Carter majority described Monschke’s precedential effect this way: “[W]e held in Monschke that the life without release mandate … is unconstitutional when applied to 18- to 20-year-old offenders … .”³3 Carter, No. 101777-4, slip op. at 5.

The Carter dissent took issue with this characterization of Monschke. The dissent argued that the “majority opinion begins with an incorrect presumption: Monschke held unconstitutional mandatory life without parole (LWOP) for defendants aged 18-20 convicted of aggravated first degree murder.”⁴4 Id. at 44 (Madsen, J., dissenting). This disagreement was based on the Rule of Five. Monschke produced a fractured set of opinions, with the four-justice lead opinion concluding that the relevant sentencing provision was unconstitutional as applied to 18- to 20-year-olds.⁵5 Monschke, 197 Wn.2d at 329 (Gordon McCloud, J., with Yu, Montoya-Lewis, Whitener, JJ.). The four Monschke dissenters declined to hold that the provision’s mandatory sentence of life without parole was unconstitutional.⁶6 Id. at 341-42 (Owens, J., dissenting, with Johnson, Madsen, Stephens, JJ.).

This 4-4 split was therefore resolved by Chief Justice Steven González’s one-paragraph concurrence.⁷7 Id. at 329 (González, C.J., concurring). Chief Justice González agreed with the lead opinion “that the petitioners are entitled to a new sentencing hearing to determine whether their ages at the time of their crimes are a mitigating factor.”⁸8 Id. The concurrence, however, offered different grounds for that result. In State v. O’Dell, the Washington Supreme Court held that a defendant’s youthfulness can justify a sentence below the standard range as a matter of statutory interpretation under the Sentencing Reform Act, even when the defendant is over 18.⁹9 State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In his Monschke concurrence, Chief Justice González reaffirmed his belief that O’Dell should apply retroactively, which would therefore make it applicable to the sentencing at issue in Monschke.¹⁰10 Monschke, 197 Wn.2d at 329 (González, C.J., concurring).

So what was the holding in Monschke? For their part, the Monschke dissenters appeared to believe that the lead opinion was precedential. The dissent explained the Monschke holding this way: “Mandatory life without parole (LWOP) sentences are now prohibited for” people between the ages of 18 and 20.¹¹11 Monschke, 197 Wn.2d at 329 (Owens, J., dissenting, with Johnson, Madsen, Stephens, JJ.). This forward-looking statement of a legal rule makes sense only if the dissenting justices believed the lead opinion (perhaps together with the concurrence) created binding precedent.

The Carter majority took a similar view, explaining that though “Monschke is a plurality decision, … the concurrence parted with the lead opinion only as to which exception of the time bar applied; thus, five justices agreed in result.”¹²12 Carter, No. 101777-4, slip op. at 6 n.2. And, perhaps most importantly, Chief Justice González himself concurred with the Carter majority, stating that he “agree[s] with the reasoning and results in the majority opinion,” presumably including that portion of the Carter majority that addressed his Monschke concurrence.¹³13 Id. at 42 (González, C.J., concurring).

Not surprisingly, the Carter dissent took a different view. First, the dissent set out Washington’s rule for plurality decisions: “a principle of law reached by a majority of the court, even in a fractured opinion, is not considered a plurality but rather binding precedent.”1¹⁴4 Id. at 51 (Madsen, J., dissenting) (quoting In re Det. of Reyes, 184 Wn.2d 340, 346, 358 P.3d 394 (2015)). Under this rule, the dissent reasoned that “a majority of the Monschke court reached no principle of law,” because the “lead opinion anchored its analysis in the Eighth Amendment,” while “the concurrence, to the extent it expressed an opinion on the merits, appears to have relied on O’Dell.”¹⁵15 Id. The lead opinion’s reasoning, therefore, “is not precedential.”¹⁶16 Id. at 52.

What a mess. As Justice Barbara A. Madsen acknowledged in her Carter dissent, the court’s “jurisprudence has been less than clear on how to determine what, if any, legal principles from a fractured opinion are precedential.”¹⁷17 Id. at 50 (quoting King County v. Vinci Constr. Grands Projets/Parsons RCI/FrontierKemper, JV, 188 Wn.2d 618, 645, 398 P.3d 1093 (2017) (Madsen, J., dissenting)). So what should a Washington lawyer do when faced with a fractured set of opinions? Here, I’ll offer a few pieces of advice.

First, I recommend reading Rachael Clark’s 2019 article, “Piecing Together Precedent: Fragmented Decisions from the Washington Supreme Court.”¹⁸18 Rachael Clark, Comment, “Piecing Together Precedent: Fragmented Decisions from the Washington Supreme Court,” 94 Wash. L. Rev. 1989 (2019). Clark gives a practical summary of the law on this issue, while providing myriad examples of the ways fractured opinions can create precedent in unusual circumstances. If you want to avoid common pitfalls, familiarize yourself with Clark’s work.

Second, make sure you’re using Washington’s rule for fractured opinions, which might differ from the more-familiar federal rule. As Justice Madsen explained in Carter: “The federal rule states that when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”¹⁹19 Carter, No. 101777-4, slip op. at 51 (Madsen, J., dissenting) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (emphasis added). This rule, known as the Marks rule, differs from the Washington rule because it limits precedential force to those opinions that concur in the judgment. In other words, under the Marks rule, dissents don’t count. 

That’s not necessarily the case under the Washington rule, which looks for principles of law reached by a majority of the court, even if that principle majority includes dissenting opinions. For example, in Colorado Structures, Inc. v. Insurance Company of the West,²⁰20 161 Wn.2d 577, 167 P.3d 1125 (2007). the court’s lead opinion concluded (1) that the defendant insurer was liable on a performance bond and (2) that the insured was entitled to attorney fees under Olympic Steamship. The lead opinion, however, only garnered four votes.²¹21 Id. at 608, 167 P.3d at 1142. Four justices dissented on the fees issue, declining to apply Olympic Steamship. But those same four justices concurred on liability, agreeing that the defendant insurer should be liable on the bond.²²22 See id. (Alexander, C.J., concurring); id.  at 638 (Madsen, J., concurring in part, dissenting in part).

That left Justice Richard B. Sanders, who wrote—well, it’s difficult to know what to call his opinion. Justice Sanders himself called it a dissent, which makes sense, given that he concluded the defendant insurer should not be liable on the bond. Justice Sanders certainly dissented from the judgment of liability. But Justice Sanders’s opinion ends with this line: “As to the second issue, I agree with the majority that Olympic Steamship applies to surety bonds and I would reward attorney fees to a prevailing contractor.”²³23 Id. at 632 (Sanders, J., dissenting, sort of).

Only four other justices in the majority agreed that Olympic Steamship should apply. And yet, 10 years later in King County v. Vinci Construction, the Supreme Court combined the four-justice lead opinion with Justice Sanders’s dissent to create a holding: “a majority of the court agreed that attorney fees under Olympic Steamship are available in the context of performance bonds.”²⁴24 King Cnty. v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 626, 398 P.3d 1093 (2017). A dissenting opinion became the fifth vote for a majority rule. Keep that in mind when you are counting to five.

Lastly, don’t rely on the labeling or visual indicators provided by commercial search services. Those services seem to mechanically label the first opinion as the “lead” opinion of the court, regardless of whether it garnered a majority of the votes. Moreover, those services attempt to warn you off dissenting opinions, even though you might need them to create a majority rule.

Counting to five can be tricky here in Washington. But now, I hope, you’ll be better prepared when your research calls for a bit of jurisprudential arithmetic. 

NOTES

1. State v. Carter, No. 101777-4 (Wash. May 23, 2024), www.courts.wa.gov/opinions/pdf/1017774.pdf. 

2. 197 Wn.2d 305, 482 P.3d 276 (2021).

3. Carter, No. 101777-4, slip op. at 5.

4. Id. at 44 (Madsen, J., dissenting).

5. Monschke, 197 Wn.2d at 329 (Gordon McCloud, J., with Yu, Montoya-Lewis, Whitener, JJ.).

6. Id. at 341-42 (Owens, J., dissenting, with Johnson, Madsen, Stephens, JJ.).

7. Id. at 329 (González, C.J., concurring).

8. Id.

9. State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015).

10. Monschke, 197 Wn.2d at 329 (González, C.J., concurring).

11. Monschke, 197 Wn.2d at 329 (Owens, J., dissenting, with Johnson, Madsen, Stephens, JJ.).

12. Carter, No. 101777-4, slip op. at 6 n.2.

13. Id. at 42 (González, C.J., concurring).

14. Id. at 51 (Madsen, J., dissenting) (quoting In re Det. of Reyes, 184 Wn.2d 340, 346, 358 P.3d 394 (2015)).

15. Id.

16. Id. at 52.

17. Id. at 50 (quoting King County v. Vinci Constr. Grands Projets/Parsons RCI/FrontierKemper, JV, 188 Wn.2d 618, 645, 398 P.3d 1093 (2017) (Madsen, J., dissenting)).

18. Rachael Clark, Comment, “Piecing Together Precedent: Fragmented Decisions from the Washington Supreme Court,” 94 Wash. L. Rev. 1989 (2019).

19. Carter, No. 101777-4, slip op. at 51 (Madsen, J., dissenting) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) (emphasis added).

20. 161 Wn.2d 577, 167 P.3d 1125 (2007).

21. Id. at 608, 167 P.3d at 1142.

22. See id. (Alexander, C.J., concurring); id.  at 638 (Madsen, J., concurring in part, dissenting in part).

23. Id. at 632 (Sanders, J., dissenting, sort of).

24. King Cnty. v. Vinci Constr. Grands Projets/Parsons RCI/Frontier-Kemper, JV, 188 Wn.2d 618, 626, 398 P.3d 1093 (2017).

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