By Stephen L. Adams and W. Christopher Pooser

Few options for interlocutory review of trial court decisions exist in Idaho, and the options that are available are difficult to obtain. As a result, litigators are often stuck with non-final rulings from the trial court until an appeal as a matter of right is available. Of course, there are many good reasons for that. Our appellate courts should be concerned about the efficient administration of our legal system.

But there are also times when a case requires immediate appellate review. While Idaho trial judges do their best to apply the law correctly, the reality is that they make mistakes. Reversal rates in the Idaho Supreme Court confirm as much. When a ruling is obviously or probably wrong, parties are mostly left without recourse to correct the error until final judgment, sometimes needlessly.

This article discusses whether there is a better system of interlocutory review for Idaho to aid the resolution of significant, disputed interlocutory rulings.

Idaho’s Appellate System

Let us first set out Idaho’s appellate system. In our state, the Idaho Supreme Court has original and appellate jurisdiction.[i] The Supreme Court’s original jurisdiction extends to the issuance of “writs of mandamus, certiorari, prohibition, habeas corpus, and all writs necessary or proper to the exercise of its appellate jurisdiction.”[ii] As for appellate jurisdiction, the Supreme Court reviews the final decisions of district courts and all cases removed to it by law.[iii]

It follows that no litigant has direct access to the Idaho Court of Appeals, which is not a true intermediate appellate court. Instead, the Court of Appeals is statutorily created and “subordinate to the Idaho Supreme Court.”[iv] Because there is no right of appeal to the Court of Appeals,[v] its jurisdiction is limited to cases assigned to it by the Supreme Court.[vi]

Reversal rates before the Idaho Supreme Court are also worth mentioning. In 2021 and 2022, an informal survey shows a total reversal rate of approximately 30%.[vii] Compare that to the Ninth Circuit Court of Appeals in fiscal year 2021, where the court’s overall reversal rate was 10.2%.[viii] The national average for reversals in federal appeals was 8.7%.[ix]

Correcting Interlocutory Errors in Idaho

If an Idaho trial court makes an error, a litigant has very limited recourse to fix the error before the entry of a final judgment. One option is I.R.C.P. 54(b), but for this article, we would like to consider the review of the many non-final rulings that do not resolve claims in multi-claim or multi-party suits.[x] There are two options for interlocutory review that originate from the Idaho Supreme Court’s appellate and original jurisdiction, respectively.

The first option is a permissive appeal under I.A.R. 12. The standard for obtaining a permissive appeal is exceedingly difficult to achieve.[xi] There must be “a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal from the order or decree may materially advance the orderly resolution of the litigation.”[xii]

This standard tracks the federal standard for interlocutory review.[xiii] But “substantial grounds for difference of opinion” is nearly impossible to show in a state like Idaho. Trial court decisions are rarely available and the direct right of appeal to the Idaho Supreme Court means that conflicts simply do not arise. Perhaps because the standard is so difficult, the Idaho Supreme Court has instructed that the intent of I.A.R. 12 is to allow appeal of errors of law that relate to matters of public concern or are of first impression.[xiv] No other errors can be addressed on permissive appeal.

As a result, the Supreme Court accepts very few permissive appeals. By our count, a total of five were granted in 2021 and 2022.[xv]

Not surprisingly, most practitioners do not see permissive appeal as a practical option to correct an interlocutory error made by the trial court.

The second option to correct an interlocutory error is also extremely limited. Practitioners have resorted to direct actions against trial courts utilizing the Supreme Court’s original authority to issue writs of mandamus or prohibition to force the trial court to take or refrain from a specific act.

For example, in Hepworth Holzer, LLP v. Fourth Judicial District of State, a 2021 case, the trial court disqualified plaintiff’s counsel.[xvi] The plaintiff’s firm filed a direct cause of action against the trial court seeking a writ of mandamus reinstating them as counsel and the writ was granted.[xvii]

The Supreme Court’s decision is worth reading. Initially the Court questioned whether writ review was appropriate because the trial court’s decision to grant or deny a motion to disqualify counsel was discretionary. Traditionally “writs of mandate (and their counterpart, prohibition) will not issue to compel the performance of a purely discretionary function.”[xviii]

Nevertheless, the Court decided that a writ of mandate is an appropriate method to review a trial court’s decision to disqualify counsel because an appeal would not provide an adequate remedy.[xix] Doing so, the Court adopted the framework used by the Ninth Circuit, which considers whether: (1) the petitioner has no other means, such as a direct appeal, of attaining the desired relief; (2) the petitioner will be damaged in a way not correctable on appeal; (3) the trial court’s order is clearly erroneous as a matter of law; (4) the order is an oft-repeated error or manifests a persistent disregard of the federal rules; and (5) the order raises new and important problems or issues of law of first impression.[xx]

While satisfaction of all the factors is not required, the decision whether to issue a writ is highly discretionary.[xxi] No party can reasonably expect this method of “appeal” to apply to many situations. Of the nine original proceedings heard by the Idaho Supreme Court since 2019, at least as indicated by published decisions, only Hepworth Holzer and one other[xxii] involved a challenge to a trial court’s interlocutory ruling.[xxiii] And as it stands now, the only discretionary trial court decision that is likely “appealable” through the writ process is a decision to disqualify counsel. It remains to be seen whether other legal decisions can utilize this process.

Interlocutory Review in Neighboring States

Two neighboring states, Washington and California, offer a more defined and utilized interlocutory review process. Washington’s system is tied to its appellate courts’ appellate jurisdiction, while California’s system is tied to its appellate courts’ original jurisdiction. Both begin with their courts of appeal.

Washington allows for the “discretionary review” of interlocutory orders by permission of the appellate courts.[xxiv] Petitions for discretionary review are heard by appellate commissioners (staff attorneys) with the Washington Court of Appeals.[xxv] They decide whether interlocutory review is warranted in mostly unpublished orders that are rarely reviewed on the merits.[xxvi]

Discretionary review “is available in those rare instances where the alleged error is reasonably certain and its impact on the trial manifest.”[xxvii] Discretionary review may be accepted in three limited circumstances, which are established by rule.[xxviii]

The first consideration requires an “obvious error” that is so severe that there is no point to continuing the litigation.[xxix] Examples include where a trial court failed to follow controlling precedent that would have resulted in judgment as a matter of law[xxx] and other situations where a useless lawsuit would be prevented.[xxxi]

The second consideration applies to a “probable error” having immediate effect outside the court proceedings.[xxxii] Examples include trial court orders pertaining to injunctions[xxxiii] and a ruling that removed an initiative from an upcoming election.[xxxiv]

The third consideration is rarely invoked and applies “where circumstances call for the ‘exercise of revisory’ authority, even absent ‘senseless or inappropriate’ conduct by the trial judge.”[xxxv]

California also has a stringent (yet broader) procedural process allowing for interlocutory review of trial court decisions, deriving from its appellate courts’ original jurisdiction. California’s system resides with the California Court of Appeal, which has original jurisdiction over statutory and common law writ petitions.[xxxvi]

As to common law writs of mandamus,[xxxvii] as in Idaho, writ relief in California is extraordinary and highly discretionary. More than 90 percent of writs are denied by the California Court of Appeal, usually without explanation.[xxxviii] Thus, while common law writs of mandamus are rarely granted, they are granted more readily than in Idaho.

In deciding whether to hear the merits of a writ petition, the California Court of Appeal considers criteria that is not dissimilar to the factors recently adopted in Hepworth Holzer.[xxxix] It is critical that the issue cannot wait to be resolved through the normal appellate process, such that an appeal will not provide an adequate remedy under the circumstances.[xl] California appellate courts are also inclined to grant writs to prevent “irreparable injury” (as opposed to “irreparable inconvenience”).[xli]

Mandamus is generally not available to control the exercise of a trial court’s discretion.[xlii] But mandate may lie where that discretion can be exercised in only one way or is abused. For example, the California Court of Appeal has found mandate proper to remedy an abuse of discretion consisting of a misinterpretation of a statute or case law or an improper ruling under the particular facts.[xliii]

Is There a Case for More Flexible Interlocutory Review in Idaho?

Is there an opportunity for a better interlocutory review process within the Idaho appellate system? We believe so. But we are not advocating for unfettered review of non-final trial court orders. There are many good reasons why the review of interlocutory rulings is disfavored and must be tightly controlled through stringent standards. Without such limitations, piecemeal appeals could lead to judicial gridlock. The ability of trial courts to manage litigation would be disrupted and normal appeals would be pushed to the sidelines. That would be true even when the alleged error could be cured prior to trial, would have little effect on the outcome of the case, or be better considered on appeal.

But it is also true that, in Idaho, the most realistic method a party has to correct a significant error prior to entry of an appealable order or judgment is a motion for reconsideration or other similar motions.[xliv] Sure, “[t]he purpose of a motion for reconsideration is to reexamine the correctness of an order.”[xlv] But these rulings are presided over by the same judge who made the initial error. Experience and the Idaho Supreme Court’s high reversal rate teach that our trial courts rarely reconsider and correct erroneous rulings. Frankly, at times, trial judges seem more interested in forcing settlement. Obtaining a corrected ruling can be difficult, if not impossible.

That leaves the Idaho Supreme Court’s appellate and original jurisdiction. Washington and California’s mechanisms for interlocutory review offer lessons for both. While Idaho’s focus is on issues of first impression and public importance (in permissive appeals) and whether issues are capable of review by a direct appeal (in writ review), what about other significant issues that simply cannot wait for an appeal taken after entry of judgment? What about trial court rulings that are plainly incorrect and would render further proceedings useless, deprive a party of presenting a significant portion of their case, or otherwise substantially prejudice a party’s case?

We do not have the space here to advocate or decide how the Idaho Supreme Court should exercise its appellate or original authority to provide more effective interlocutory review. Both are suited for occasional interlocutory review. But perhaps a solution is recognizing that the standard for permissive appeals under I.A.R. 12 is too stringent and unforgiving given Idaho’s unique appellate system.

Perhaps the standards for interlocutory relief can be defined to focus on the effect of the trial court’s error rather than the novelty of the error. Perhaps the circumstances that justify interlocutory review should include error that would needlessly waste the parties and the court’s resources or threatens a litigant with immediate and irreparable injury. And perhaps there is a role for the Idaho Court of Appeals to be the gatekeeper of an interlocutory review process.

Idaho’s interlocutory appeals process cuts out cases that would benefit from immediate appellate review. Expanding interlocutory appeals, even slightly, could help short-circuit meritless cases. Errors that result in overwhelming burdens for which there is no adequate remedy would be cured. Litigants with meritorious challenges to significant and impactful errors, whether legal or discretionary rulings, would not be discouraged from seeking interlocutory review. Further, a more robust and defined process of interlocutory review would promote, over the long term, better decisions from trial judges and better appellate practice from Idaho practitioners.

W. Christopher Pooser is an appellate attorney in the Boise office of Stoel Rives LLP. He is a co-founder, past chair, and current governing council member of the Appellate Practice Section. He is also rounding out.

[i] Idaho Const., art. V, § 9; Idaho Code § 1-202.

[ii] IdahoCode § 1-203.

[iii] Idaho Code § 1-204.

[iv] Idaho Code § 1-2402.

[v] Idaho Code § 1-2410.

[vi] Idaho Code § 1-2406. The Supreme Court may not assign cases of original jurisdiction, capital appeals, or appeals from the industrial commission or the public utilities commission.

[vii] The authors found approximately 51% of civil and criminal appeals were affirmed, approximately 19% were affirmed or reversed in part, and approximately 30% were reversed. In civil appeals, the reversal rate was approximately 26% percent. In criminal appeals, the reversal rate was approximately 35%.   

[viii] United States Courts for the Ninth Circuit, 2021 Annual Report at 48, https://cdn.ca9.uscourts.gov/datastore/judicial-council/publications/AnnualReport2021.pdf.

[ix] Id.

[x] Interlocutory review under Rule 54(b) is available in limited situations: when the trial court resolves at least one claim or the rights and liabilities of at least one party and finds no just reason for delay.

[xi] See generally Stephen Adams, The How’s and When’s of Permissive Appeals, Idaho State Bar Journal (The Advocate) at 26-30 (May 2018) for a discussion of case law applying the standards.

[xii] I.A.R. 12(a).

[xiii] See 28 U.S.C. § 1292(b).

[xiv] See Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983); Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 892, 265 P.3d 502, 505 (2011); Rountree v. Boise Baseball, LLC, 154 Idaho 167, 170, 296 P.3d 373, 376 (2013); Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009).

[xv] It appears three permissive appeals were granted in 2022. See State v. Diaz, 170 Idaho 79, 507 P.3d 1109, 1112 (2022); Weaver v. Weaver, 170 Idaho 72, 507 P.3d 1102, 1103 (2022); Swanson v. Swanson, 169 Idaho 766, 768, 503 P.3d 982, 984 (2022). In 2021, there were similarly few permissive appeals. See Matter of Doe, 169 Idaho 328, 334, 495 P.3d 1016, 1022 (2021); Tucker v. State, 168 Idaho 570, 573, 484 P.3d 851, 854 (2021).

[xvi] Hepworth Holzer, LLP v. Fourth Jud. Dist. of State, 169 Idaho 387, 391–92, 496 P.3d 873, 877–78 (2021).

[xvii] Id. at 395-99, 496 P.3d at 881-85.

[xviii] Bower v. Morden, 126 Idaho 215, 218, 880 P.2d 245, 248 (1994) (citation omitted).

[xix] Hepworth Holzer, LLP, 169 Idaho at 396, 496 P.3d at 882.

[xx] Id. at 396-99, 496 P.3d at 882-85 (citing Cole v. U.S. Dist. Court for the Dist. of Idaho, 366 F.3d 813, 816–17 (9th Cir. 2004)).

[xxi] Id. at 396, 496 P.3d at 882. The Supreme Court instructed that the factors are not to be “mechanically applied,” and how could they be? How can a case involve both an oft-repeated error and an issue of first impression? 

[xxii] See Re Petition for Writ of Prohibition, 168 Idaho 909, 489 P.3d 820 (2021) (granting writ of prohibition).

[xxiii] The published decisions do not accurately reflect the number of writ petitions granted by the Idaho Supreme Court during that time. Depending on the circumstances, the Court will summarily grant a writ of mandate or prohibition without issuing a decision.

[xxiv] Wash. R. App. P. 2.1(a)(2), 2.3. For a more comprehensive discussion than we provide here, see Geoffrey Crooks, Discretionary Review of Trial Court Decisions Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541, 1548 (1986), and Stephen J. Dwyer et al., The Confusing Standards for Discretionary Review in Washington and a Proposed Framework for Clarity, 38 Seattle U. L. Rev. 91 (2014).

[xxv] Wash. R. App. P. 17.2, 1.1(f).

[xxvi] A party who disagrees with a commissioner’s decision may move the Court of Appeals to modify the ruling. Wash. R. App. P. 17.7(a).

[xxvii] Minehart v. Morning Star Boys Ranch, Inc., 156 Wash. App. 457, 462, 232 P.3d 591, 594 (2010) (cleaned up); see also In re Dependency of Grove, 127 Wn.2d 221, 235, 897 P.2d 1252, 1259 (1995) (“A party moving for discretionary review of an interlocutory trial court order bears a heavy burden.”).

[xxviii] Wash. R. App. P. 2.3(b)(1)-(3). There is also a fourth circumstance, which is largely identical to the permissive appeal standard under I.A.R. 12(a). See Wash. R. App. P. 2.3(b)(4).

[xxix] See Crooks, supra, 61 Wash. L. Rev. at 1548.

[xxx] See, e.g., Macias v. Mine Safety Appliances Co., 158 Wash. App. 931, 935–36, 244 P.3d 978, 979–80 (2010).

[xxxi] See, e.g., Long v. Dugan, 57 Wash. App. 309, 310–11, 788 P.2d 1, 1-2 (1990) (reversing denial of motion to dismiss because wrongful death statute does not give nondependent siblings right of action); Barfield v. Estate of Barfield, No. 51884-4-1, 2003 WL 21055110, at *1 (Wash. Ct. App. May 12, 2003) (reversing denial of summary judgment where suit was filed after expiration of limitation period).

[xxxii] In re Dependency of N.G., 199 Wash.2d 588, 598, 510 P.3d 335 (2022).

[xxxiii] See, e.g., Bellevue Square, LLC v. Whole Foods Mkt. Pac. Nw., Inc., 6 Wash. App. 2d 709, 712, 432 P.3d 426, 428 (2018) (reversing grant of preliminary injunction where specific performance was not warranted); Ameriquest Mortg. Co. v. State Att’y Gen., 148 Wash. App. 145, 156–57, 199 P.3d 468, 472-73 (2009) (reversing denial of motion for preliminary injunction where the trial court improperly combined the preliminary injunction hearing with the permanent injunction trial).

[xxxiv] See Filo Foods LLC v. City of SeaTac, 179 Wash. App. 401, 405, 319 P.3d 817, 819 (2014).

[xxxv] State v. Alpert, 21 Wash. App. 2d 1062, 2022 WL 1210528, at *4 (2022) (unpublished) (cleaned up).

[xxxvi] See Cal. Const. art. VI, § 10. California has enacted statutory writs, which are the exclusive method to obtain review of certain orders, such as orders granting or denying a motion to disqualify judge, Cal. Code Civ. Proc. § 170.3(d) and a motion to change venue, Cal. Code Civ. Proc. § 400, among other motions. 

[xxxvii] Cal. Code Civ. Proc. § 1086. Common law writs also include writs of prohibition, Cal. Code Civ. Proc. § 1103; writs of certiorari, Cal. Code Civ. Proc. § 1068; and writs of supersedeas, Cal. Code Civ. Proc. § 923. 

[xxxviii] Jon B. Eisenberg, California Practice Guide: Civil Appeals and Writs ¶ 15.1.3, Westlaw (database updated Nov. 2022); Omaha Indem. Co. v. Superior Court, 209 Cal. App. 3d 1266, 1271, 258 Cal. Rptr. 66, 68 (1989).

[xxxix] See Omaha Indem. Co., 209 Cal. App. 3d at 1273–74, 258 Cal. Rptr. at 69–70.

[xl] Id. at 1274, 258 Cal. Rptr. at 70.

[xli] Id.

[xlii] Robbins v. Superior Ct., 38 Cal. 3d 199, 205, 695 P.2d 695, 698 (1985).

[xliii] See, e.g., Du-All Safety, LLC v. Superior Court, 34 Cal. App. 5th 485, 495–97, 246 Cal. Rptr. 3d 211, 217–18 (2019) (mandate proper where trial court violated party’s statutory right to supplement expert witness disclosure); Gertner v. Superior Court, 20 Cal. App. 4th 927, 930, 25 Cal. Rptr. 2d 47, 49 (1993) (mandate proper in probate proceeding where, under terms of applicable statute, trial court lacked discretion to grant creditor’s petition to file late claim); Waicis v. Superior Court, 226 Cal. App. 3d 283, 287, 276 Cal. Rptr. 45, 48 (1990) (mandate proper to review discovery ruling denying a party fair opportunity to litigate the case); Omaha Indem. Co., 209 Cal. App. 3d at 1271–74, 258 Cal. Rptr. at 68–70 (mandamus proper where trial court abused its discretion denying a motion to sever without prejudice).

[xliv] See I.R.C.P. 11.2, 59, 60; I.C.R. 35.

[xlv] Int’l Real Est. Sols., Inc. v. Arave, 157 Idaho 816, 819, 340 P.3d 465, 468 (2014).