Common Law States Defined
In the simplest of terms, a common law state or jurisdiction is one that relies predominantly on court-made law. While statutes are still a widely-used source of law, in common law states, judicial opinions are sometimes considered to have greater authority than statutes. Rather than a written code of laws or a constitution being the supreme law of the land, it is the court decisions. This reality may be surprising to those who regularly take on cases in civil courts, where the duty of the judge is often seen as more adhered to than in criminal courts. As lawyers often know before they even walk into the courtroom, a ruling may be decided before opening statements are made. However , if you were to ask any judge why he or she made that decision, the answer is often a question: "Do you remember what the Court said on the issue in some former case?" The case law the judge is thinking of is part of the common law of the state in which the judge serves as a jurist. His or her job is to apply the law to the specific facts of a case, so there is no better source of law for the judge than previous decisions on the same subject. And so it is throughout the country: with 49 states following the common law system. The main exception, of course, is the State of Louisiana, where most predominant source of law is statutes accepted from French equality law.
Common Law System in Washington State
The legal framework of Washington State is a combination of federal law, constitutional law, statutory law, and common law. Common law forms the basis of the state legal system within Washington, however, procedural laws are outlined in statutes, which can override common law precedent.
Procedural laws are regulated by the Washington Revised Code (RCW). The RCW is a collection of all permanent laws that have been passed in the Washington State legislature. It became effective on January 1, 1962, and collects all general and permanent law in the State. A statutory law that has the authority of a public act is called a statute. They are passed by the legislature and have certain procedures for their enactment. Generally, they must be passed by the legislature and then enacted by the governor to be enacted.
Washington also has the Washington Administrative Code (WAC). The WAC is the compilation of all the rules and regulations of each state agency. These rules and regulations are passed by administrative agencies. Legislative bodies enact enabling acts that give the agency the authority to enact certain administrative rules.
Statutory law affects our individual rights, independence, and actions, but so does common law, the law developed by judges over time, which in turn creates precedents that other judges follow. Determine what is common law and whether common law overrides statutory laws.
Common law is based on judicial rulings from individual court decisions. However, since Washington state essentially has a civil law system, this means that statutory law will override any common law rulings. In southern states, with common law system, judges may use precedents — court decisions — and apply them to statewide cases. In effect, precedent "makes" the law in those states.
The fact that Washington is a civil law state means that legislative authority overrides judicial authority, so law is dictated by state statutes. There are two exceptions to this rule: contingency cases and equitable actions. Precedent judges decided as recent as the day before can be overruled by precedent of judges in other cases or in appeals courts.
Common Law in Washington State
In Washington State, as in the vast majority of states in the U.S., common law principles do apply. The Washington State Constitution—ratified in 1889—specifies that Washington is a common law jurisdiction, and it has been since statehood. Washington is twice over a common law jurisdiction, then, given the state constitution’s reference to the United States’ Constitution, whose Article 1 establishes that the United States is a common law jurisdiction.
Washington has long acknowledged the role of common law principles in the courts. Indeed, as far back as 1891, the state supreme court established through case precedent that there is a presumption that all actions not expressly defined and prohibited by statute are allowed. This presumption meant that common law protections also applied to Washington legal proceedings.
In general, common law in Washington applies to civil tort actions, but it can also apply in the areas of real estate and labor law. For example, in 1958 the Washington Supreme Court found through case law that a buyer does not have to have physical possession of property before title to that property vests with the buyer, to the effect that even if a seller refuses to deliver the deed to the buyer, the buyer still owns effective title to the property.
In 1959, a Washington court found that common law principles protected an employee from outside coercion and harassment in his or her work duties. More specifically, the court found that the "voluntariness of an employee’s consent is essential to the validity of employment." Continued rulings on this matter over the course of subsequent decades resulted in the formation of "informed consent documents," which govern how the employer must inform the employee of the conditions of employment and ensure that the employee assents to them.
Note that there are some statutory limitations in Washington when it comes to common law principles, especially when it comes to injuries in the workplace.
Comparison With Other States
In comparison to many other states, Washington’s approach to common law is relatively unique. Some states utilize the common law more strictly, such as California and Virginia.
Virginia has a decidedly formal process that is used to introduce new legal rights and obligations for those who use the law. Unlike Washington, where judges interpret the law in resolving disputes, in Virginia, to create a new right or duty, courts require an enactment of the Virginia General Assembly. This is a substantial difference from Washington, where the judiciary can create new common law precedents without a change in the legislature. Virginia has only recognized ceritan rights or duties in exceptional circumstances. For example, in recognition of a new duty owed to third parties by providers and recipients of blood products that infected a blood donor with HIV, the Virginia Supreme Court refused to recognize a cause of action. Since Virginia does not have a "repose" statute that instructs courts when a lot of time has passed , the court felt that the action would open the door to plaintiffs wanting remuneration for every type of circumstance imaginable.
Washington also contrasts somewhat with California. California utilizes the common law more liberally than Washington does. Cases that move through the California legal system are often reflected as "precedential authority" for later courts to review. Although the precedential value of any California court order is not as clear as it is for Washington, it is still considered to provide the basis for a legal argument to be made to persuade Washington courts to consider a given issue. Arguments are made based on what other courts in other states have said. In California, the courts have found that a duty of care may exist when there is a relationship between the person and a third party. In this way, Washington and California match up on some issues. However, the difference between Washington and other states is that Washington courts are very cautious to recognize new duties.
Recent Legal Changes in Washington
Recently Signed Laws of Interest to the Insurance & Reinsurance Bar; Developing Case Law; New Legislative Initiatives
Yesterday we reviewed the law of Washington in the following areas: (i) choice of law; (ii) loss mitigation; and (iii) third party litigation funding transactions. Today we review some of the recent legislative developments and cases that address the common law of Washington.
A. Recent Case Law
B. New Laws
- HB1392 – This bill allows a hospital to charge a facility fee (additional fees above what is charged by a hospital’s doctors) to patients who receive an emergency service or are admitted at the hospital.
- HB1407 – This bill establishes a notice to the state treasurer procedure and a claim process for individuals owed unclaimed property.
- SB5255 – This law amends the statute that governs the duties and powers of the insurance commissioner.
Effect on Residents and Legal Professionals
For residents of Washington, the common law status means that they will have to rely on the state’s unreliable and non-durable common law marriage doctrine. As with any law, there are often differing interpretations or nuances when it comes to enforcing it. Every state has its own public policy and interest that can impact different areas of law, including property division at divorce. But when you don’t know who you are regarding the law, you are facing a lot of uncertainty that could have downstream ramifications that affect your financial future.
From a legal practitioner’s perspective, there are options but, ultimately, common law recognition can lead to additional litigation . While some states that recognize common law marriage vision a short list of factors to satisfy, Washington has a much more extensive list of elements. There are unique facts to be considered in these cases, and also unique arguments to be made. Based on the fact that the couple’s relationship may have several years of intertwined assets and debts, going through discovery of all assets and debts can be complicated. Even if the parties aren’t sure if they were common law married or not, litigation becomes inevitable because there is no clear cut answer to the question of whether a common law marriage existed based on the state’s factors. And if the issue is one of first impression in court, it can be exceedingly difficult to determine how the court will rule.