Prison Phone Justice

RECEIVED

FEB - 6 2001
1.bVl. QI:FI(;E OF

IN THE COURT OF APPEALS OF THE STATE OF WASHINGIIION& YOUTZ
DIVISION ONE

)
)
)
)
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Respondents,
)
)
)
v.
)
AMERICAN TELEPHONE AND TELEGRAPH )
COMPANY, GTE NORTHWEST, INC..
)
CENTURYTEL TELEPHONE UTILITIES, INC.,)
NORTHWEST TELECOMMUNICATIONS,
)
INC., d/b/a PTI COMMUNICATIONS. INC.,
)
U.S. WEST COMMUNICATIONS. INC.,
)
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Defendants,
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T-NETIX. INC.,
)
)
Appellant.
SANDY JUDD. TARA HERIVEL
and ZURAYA WRIGHT. for themselves.
and on behalf of all similarly situated
persons,

No. 47811-7-1

COMMISSIONER'S RULING
DISMISSING APPEAL

---------------)
Sandy Judd and two other named plaintiffs (Judd) filed suit against T-Netix, Inc.,
American Telephone and Telegraph Company (AT&T). GTE Northwest. Inc.• Centurytel
Telephone Utilities. Inc.• Northwest Communications, Inc. d/b/a PTI Communications
(PTI) and U.S. West Communications, Inc. (Owest). Judd asserted that the companies
had contracts with the Washington State Department of Corrections to provide services
on payphones used by state prison inmates.

According to the complaint, prison

inmates are required to use the companies' services and may only make collect calls.
Judd asserted that the named companies failed to appropriately disclose their rates to
recipients of these calls. in violation of RCW 80.36.520 and the Consumer Protection

No. 47811-7-1
Act. Judd, a recipients of such calls, filed the case as a potential class action and has
now moved to certify a class.
The defendants moved for summary judgment of dismissal. The Honorable J.
Kathleen Learned granted the motion in part and denied it in part.

Judge Learned

ruled:
There is some ambiguity in the literal wording of the statute in
question. However, reading the statute as a whole, the legislature
intended to create a cause of action under the Washington Consumer
Protection Act ("CPA") only for violations of the regulations promulgated
by the Washington Utilities and Transportation Commissioner ("WUTC")
and did not create a cause of action for actions beyond or outside the
regulations. 1
Judge Learned concluded that the defendants would be dismissed unless the
plaintiffs filed supplemental pleadings alleging that the defendants violated WUTC
regulations. After supplemental briefing, Judge Learned entered the following ruling on
T-Netix's motion to dismiss:
IT IS HEREBY ORDERED that Defendant T-Netix' Motion is
granted in part only and the matter is referred to the Washington Utilities
and Transportation Commission (WUTC) for further proceedings to
determine if T-Netix has violated WUTC regulations. CPA claims and any
award of monetary damages are stayed pending WUTC action. Further,
T-Netix's motion to dismiss claims related to interstate cl~ms are
dismissed under federal pre-emption. Class action issues are stayed
.
pending WUTC action. 2
T-Netix filed a notice of appeal.

This Court set a motion to determine

appealability. T-Netix asserts that this case is properly appealable. Judd asserts that it
is not. T-Netix has not filed a motion for discretionary review nor has it argued that the
trial court's decision constitutes obvious or probable error as required by RAP 2.3(b).

, Appendix 2 to T-Nelix Response lo Court's Malian
Appendix 3lo T-Netix Response lo Court's Molion

2

-2-

No. 47811-7-1
T-Netix contends that this case is appealable under various federal doctrines,
none of which are applicable here. T-Netix asserts that the trial court's decision is final
and complete and closed because the trial court has passed Judd's claim to the WUTC
in its entirety. That does not seem to be the case. The superior court has deferred to
the WUTC for a declaration as to whether T-Netix has violated any specific WUTC
rules. But the court has retained the CPA case and specifically stayed the issue of
class certification.

In short, the trial court has deferred to the agency with the

appropriate expertise to determine if its own rules have been violated. Based upon the
WUTC declaration, the trial court is apparently ready to proceed with rulings on
summary jUdgment and/or class certification and the CPA trial, whichever is
appropriate.
T-Netix also claims that the dispute is appealable because the issue it wishes to
raise is collateral to the main issue and thus comes within the collateral order doctrine
of the federal courts.

First, there is no merit to T-Netix' claim that this court has

adopted the collateral order doctrine. The case to which T-Netix refers merely quotes
the holding of a federal case that referred to the collateral order doctrine. But that case
did not involve an appeal of a collateral order and the court had no occasion to
determine its applicability to Washington state procedure. A number of states have
rejected the doctrine as inapplicable to state procedure. See Walden v. City of Seattle,
77 Wn. App. 784, 789, 892 P.2d 745 (1995)(federal rule permitting immediate appeal of
ruling denying qualified immunity is not applicable to state proceeding; our discretionary
review procedure provides adequate opportunity for immediate review).

-3-

No. 47811-7-1
the main issue in the case. That Judd disagrees with the trial court's ruling which limits
her ability to pursue the CPA claim does not suggest that the question of whether TNetix has violated WUTC regulation is collateral.

Judd has also responded to the

court's motion and has argued that the matter is not appealable.
There is no basis for finding that T-Netix is entitled to appeal the trial court's
order. Moreover, there is a strong policy in Washington against piecemeal appeals. Fox
v. Sunmaster Prods.! Inc., 115 Wn.2d 498,503-04,798 P.2d 808 (1990); Doerflinger v.
New York Life Ins. Co., 88 Wn.2d 878, 882, 567 P.2d 230 (1977).

T-Netix has not

overcome the presumption that an appeal does not lie from an interlocutory order.
T-Netix has not filed a motion for discretionary review nor requested time to file
such a motion. As this case is not properly before this court, the appeal is dismissed.
Now, therefore, it is hereby
ORDERED that the appeal is dismissed.
-~

Done this ~ -

day of February, 2001.

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