Petition for Writ of Certiorari — Susan Chen, Petitioner v. Darren Migita, et al.

»&{

No.

1 B. i

&« *

2fn t!je Supreme Court of tfje 3Emteb States;

1

filedJUN 0 3 2021

Susan Chen.

Petitioner

^REMECnlwgj^

v.

Darren Migita, M.D., Ian Kodish, M.D., James

Metz, M.D. and Seattle Children’s Hospital.

Respondents

On Petition for a Writ of Certiorari to

The Washington Supreme Court

PETITION FOR A WRIT OF

CERTIORARI

Susan Chen, pro se petitioner

PO BOX 134, Redmond, WA 98073

Tel: (323)902-7038

RECEIVED

JUL 2 9 2021

1

QUESTIONS PRESENTED

Under Due process, adequate notice must be given

to the affected parties. The current petition and the

underlying four-years' appellate litigation are

results of Washington courts’ refusal to clarify an

ambiguous order about whether minor, J.L. was

bound to the dismissal order or whether the

dismissal to the minor was without prejudice.

Petitioner pro se filed a lawsuit, mistakenly added

J.L.’s name but quickly informed the court that she

cannot represent minor in court as non-attorney. A

Washington state court judge dismissed the action

upon Defendants’ pre-discovery motion for

summary judgment announcing the lack of personal

jurisdiction over defendants due to the plaintiffs’

defective service. The order was silent as to whether

it was with or without prejudice as to the

unrepresented minor plaintiffs (“2017 Order”). The

Chief Judge expressed his intent to vacate the

ambiguous order, reasoning that a dismissal

without prejudice was the limit that a court lacking

jurisdiction could act and that parties are entitled to

a clear judgment (“2019 Intent”) - the Order has not

yet been formally entered.

Defendants appealed the court’s intent. The

Washington Court of Appeals reversed, concluding

that the Chief Judge abuses the discretion to

resolve the jurisdictional challenge, opined that the

Court has no obligation to first determine whether

or not it has jurisdiction. The Court of Appeals

disagreed with chief judge and ordered the indigent

Petitioner (Respondent on appeal) to pay appellate

11

costs and fees to the appeal initiated by the

Respondents (Appellants on appeal).

1. Whether a state court’s dismissal order, absent

clear languages about the legal effects; and its

further refusal to clarify - which has led to four

violate notice

years’ appellate litigations

requirement of procedural due process as set out

in the Fourteenth Amendments’ Due Process

Clause?

2. Whether the Court has authority to further rule

on the merits of the claims and dismiss the

unrepresented children’s claims, after it has

announced lacking personal jurisdiction over

defendants.

3. Whether the Court has personal jurisdiction over

a disabled minor who was unrepresented by legal

lawyer and guardian ad litem - while all federal

circuits dismissed the unrepresented minors’

claims without prejudice because pro se parents

are not permitted to represented minors in both

federal and state courts. 28 U. S. C. § 1654;

RCW 2.48.180.

4. Whether the Court is under the duty to first

resolve the jurisdictional issue before ruling on

the merits of the case.

5. Whether it is unconstitutional for the state Court

to impose legal financial sanction upon the

passive indigent Respondents who were forced to

respond to the interlocutory appeal - if any

appellate costs - completely occurred by the

appellants themselves.

Ill

TABLES OF CONTENTS

QUESTIONS PRESENTED

1

TABLES OF AUTHORITIES

vi

OPINIONS BELOW

1

JURISDICTION

1

STATUTORY PROVISION INVOLVED

1

STATEMENT OF THE CASE

3

REASON FOR GRANTING THE PETITION

13

I.

The Court Must Resolve The Jurisdiction

14

Defects Whenever Comes To Light

II.

This Case Is An Appropriate Vehicle For

Deciding This Important Constitution

Question Related to Due Process Rights.....19

A. The Ambiguous Order Itself Is A Due Process

19

Violation

B. The Trial Judge’s Failure To Recuse Is A Due

24

Process Violation

III.

The Question Presented Involves A

Recurring Issue of Exceptional Importance

That Threatens The Fundamental Right Of

26

Access To The Courts

A. Absent Legal Representation, J.L.’s access to the

27

Courts had been denied

IV

B. This is an Ideal Vehicle to Address the “Seldom”

Reviewed but Important Rights of Access to The

30

Courts

CONCLUSION

31

V

APPENDIX A:

Order of the Washington Supreme Court, filed on

la

January 6, 2021

APPENDIX B:

Orders of the Washington Supreme Court, filed on

2a

April 28, 2021

APPENDIX C:

Opinion of the Washington Court of Appeals filed

3a

on June 22, 2020

APPENDIX D:

Order of the Washington Court of Appeals denying

19a

reconsideration dated on July 22, 2020

APPENDIX E:

Ruling of the Washington Court of Appeals denying

20a

appointment of counsel for J.L

APPENDIX F:

Orders from the Washington State King County

22a

Superior Cour in 2017 ("2017 Order”)

APPENDIX G:

Orders from the Washington State King County

27a

Superior Court in 2019 (“2019 Intent”)

APPENDIX H:

Order from the Washington State King County

Superior Court granting motion to recuse Smith

34a

Goodfriend, P.S

APPENDIX I:

Respondents’ Motion for Summary Judgment....37a

■A

VI

APPENDIX J:

Petitioner’s Motion for Reconsideration, filed at the

81a

trial court

APPENDIX K:

Petitioner’s Opening Brief, filed at Washington

94a

Court of Appeals

APPENDIX L:

Petitioner’s RAP

Authorities

10

Statement

of Additional

159a

APPENDIX M:

Petitioner’s Motion for Reconsideration, filed at

159a

Washington Court of Appeals

APPENDIX N:

Petitioner’s Motion for Reconsideration, filed at

162a

Court of Appeals

APPENDIX O:

Petitioner’s Petition for review filed in Washington

168a

Supreme court

Vll

TABLE OF AUTHORITIES

FEDERAL CASES

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)

26

Asahi Metal Indus. Co. v. Superior Court,

107 S. Ct. 1026 (1987).............................

14

Baltimore Contractors, Inc. v. Bodinger,

348 U.S. 176, 181 (1955).....................

13, 18

BNSFRy. Co. v. Tyrrell, 137 S. Ct. 1549 (2017)

15

Boddie v. Connecticut. 401 U.S. 371 (1971)

31

- Bounds v. Smith, 430 U.S. 817 (1977)........

30

Bristol-Myers Squibb Co. v. Superior Court of Cal,

137 S. Ct. 1773 (2017).............................................

15

Burger King Corp. v. Rudzewicz, 105 S. Ct. 2174 (1985)....14

Caperton v. A.T.Massey Coal Co., 556 U.S. 868 (2009)

19

Calder v. Jones, 465 U.S. 783 (1984).........................

14

Cheung v. Youth Orchestra Found. Of Buffalo, Inc.

906 F.2d 59,61 (2d Cir. 1990).............................

27

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

18

Daimler AG v. Bauman, 571 U.S. 117 (2014)

15

Devine v. Indian River County Sch. Bd., 121 F.3d 576, 578,

582

(11th

Cir.

1997),

cert.

denied,

522

(U.S.

27

1110(1998)

\

Vlll

Ex parte McCardle, 7 Wall. 506, 514 (1869)

13,14,21

Great Southern Fire Proof Hotel Co., v. Jones,

177 U.S.. 449, 453 (1900)............................

15, 16

Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 U.S. 915 (2011)...............................................

15

Graham-Humphresys v. Memphis Brooks Museum of Art,

29

Inc., 209 F.3d 552, 561 (6* Cir. 2000)

17, 18

Hanson v. Denckla, 357 U.S. 235 (1958)

Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408 (1984).................................................

14

24, 26

In re Murchison, 349 U.S. 133, 136 (1955)

Insurance Corp. of Ireland v. Compagnie de Bauxites des

15

Guinee, 456 U.S. 694 (1982)

Johns v. County of San Diego,

114 F.3d 874, 876-77 (9th Cir. 1997)

11, 17, 27,29,30

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011)..................

15

Keeton v. Hustler Magazine,

465 U.S. 770 (1984)...

14

Mansfield, C. & L. M. R. Co. u. Swan,

U.S. 379, 382 (1884)..............................................

13, 15

Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986)

27

Mezere v. Flory, 26 Wn. 2d 274, 173 P.2d 776 (1946)

19

IX

McGirt v. Oklahoma, 591. U.S._(2020)

18

McNeil v. United States, 508 U.S. 106, 113 (1993)

28

Melo v. U.S. 505 F 2d 1026 (8th Cir. 1974)

11

Myers v. Loudon County Pub. Schs.,

418 F.3d 395, 401 (4th Cir. 2005).....

27

O’Diah v. Volkswagen of Am., Inc.,

91 Fed. Appx. 159, 160 (1st Cir. 2004)

27

Osei-Afriyie v. Medical College of Pennsylvania,

937 F.2d 876, 883 (3«* Cir. 1991)................

27, 30

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985)

14

Schlesinger v. Reservists Comm, to Stop the War,

418 U.S. 208, 227 (1974)...................................

14

Shaffer v. Heitner, 433. U.S. 186 (1977)

17

Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002)....27

Smith v. Smith, 49 Fed. Appx. 618, 620 (7th Cir. 2002)

Steel Co. v. Citizens for a Better Env’t

523 U.S. 83, 101 (1998)................

Turney v. Ohio, 273 U.S. 510 (1927)

United States v. Corrick, 298 U.S. 435, 440 (1936)

27

14, 15, 16

26

13, 18

United States v. Richardson, 418 U.S. 166, 179 (1974)....14

Walden v. Fiore, 571 U.S. 277 (2014)

15

X

Winkelman v. Parma City School District,

550 U.S. 516 (2007).............................

27

WASHINGTON STATE CASES

Allied Fid, Ins. Co. v. Ruth,

57 Wn. App. 783 790 P.2d 206 (1990)

12, 23

Anderson v. Dussault,

181 Wn.2d 360, 333 P.3d 395 (2014)

20

Dependency of A. G.,

'

93 Wn.App. 268, 968 P.2d 424 (1998)

19

Diimmel v. Campbell,

68 Wn.2d 697, 699, 414 P.2d 1022 (1966)

24

Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968)

23

Hagan v. Kassler Escrow, Inc.,

96 Wn.2d 443, 635 P.2d 730 (1981)

28

Newell v. Ayers, 23 Wn. App. 767, 598 P.2d 3 (1979)

20

Schroeder v. Weighall et al.

179 Wn.2d 566; 316 P.3d 482 (2014)

8, 20, 21

State ex rel. McFerran v. Justice Courts of Evangeline Starr,

24

32 Wn.2d 544, 548, 202 P.2d 927 (1949)

State ex. Rel. Barnard v. Bd. Of Educ.,

19 Wash. 8, 17, 52 P.317 (1898)..

24

State v. Nw. Magnesite Co.,

28 Wn.2d 1, 182 P.2d 643 (1947)

9

XI

State v. Douty, 92 Wn. 2d 930, 603 P.2d 373 (1979)

20

State v. Yishmael,

195 Wn.2d 155, 456 P.3d 1172 (2020)

28

Wash. State Bar Assn. v. Great W. Union Fed. Sav. & Loan

11, 20, 28

Assn., 91 Wn.2d 48, 586 P.2d 870 (1978)

OTHER AUTHORITIES

Brilmayer, How Contacts Count: Due Process Limitations

on State Court Jurisdiction, 1980 Sup. Ct. Rev. 77, 7717

79

Frank, Disqualification of Judges, 56 Yale L.J. 605, 611612

26

(1947)

George, In Search of General Jurisdiction, 64 Tu L. L. Rev.

17

1097, 1107 (1990)

Kurland, The Supreme Court, the Due Process Clause and

the In Personam Jurisdiction of State courts: From

Pennoyer to Denckla: A Review, 25 U. Chi. L. Rev. 569, 573

17

(1958)

The Federalist No. 10, p. 59 (J. Cooke ed. 1961) (J.

26

Madison)

RULES AND STATUTES

RCW 4.08.050

19

RCW 2.48.180

17, 20, 28

RCW 4.16.190

8, 20, 21

Xll

RCW 2.48.170

12

RAP 7.2(e)

10

RAP 10.8

10, 11

Washington

2.11(A)(6)(d)

Code

28U.S.C. § 1654

of

Judicial

Conduct

Rule

25

11, 17, 28

1

PETITION FOR A WRIT OF CERTIORARI

Susan Chen respectfully petitions for a writ of

certiorari to review orders from Washington

Supreme Court.

OPINIONS BELOW

On January 6, 2021, the Washington Supreme

court denied discretionary review of Court of

Appeals’ Opinion reversing Superior court’s 2019

Order vacating the 2017 summary judgment of

dismissal orders. On April 28, 2021, the

Washington Supreme Court denied Petitioner’s

Motion to modify Commissioner’s Ruling of

imposing appellate legal financial sanction against

indigent Petitioner (Respondent below). The orders

are attached as APP. A-B, at la-2a.

JURISDICTION

The Washington Supreme Court denied

discretionary review on January 6, 2021. On March

19, 2020, this Court extended the deadline to file a

petition for certiorari to 150 days from the date of

order denying discretionary review. This Court has

jurisdiction under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to

Constitution provides, in relevant part:

the

U.S.

No State shall * * * deprive any person of life,

liberty, or property, without due process of

law.

2

FEDERAL STATUE INVOLVED

28 U. S. C. § 1654 provides, “In all courts of the

United States the parties may plead and conduct

their own cases personally or by counsel.”

3

STATEMENT OF THE CASE

A. Facts Giving Rise to This Case.

Seattle Children’s Hospital (“SCH”) has a long

history of making false allegation towards innocent

parents, including but not limited to the

misdiagnosis of mother having a non-existent and

rarely seen disease called Munchausen by Proxy. A

SeattlePI investigative article published in 2002

revealed that one single doctor from Seattle

Children’s Hospital had (wrongfully) accusing over

one hundred mothers having Munchausen, all of

which was eventually proven to be false.1

Prior to the event occurred in 2013, J.L. had

been seeing the GI clinic of SCH at over one year,

for different digestive problems such as diarrheas,

constipation, gas, failure to gain weight, etc.

The three SCH Defendant doctors, Darren

Migita, James Metz and Ian Kodish (Collectively

“Migita”2) ignored J.L.’s medical history available in

their own institution, did not consult with J.L.'s

main treating physicians whose names were known

to them in the medical records and labs. Other than

negligent, they provided the knowingly false

information to child protective services (“CPS”). For

example, Defendant Darren Migita claimed J.L.

suffering from kidney failure (while in fact J.L.’s

kidney function was normal and the only mediation

i https://www.seattlepi.com/news/article/Persecuted - parents

- or — protected - children - 1092970.php

2 For easy statement purpose, no disrespect.

4

he was given was “Bisacodyl,” a medication for

constipation); Defendant Metz wrote in the report

(sent to CPS) that Chen did not send J.L. to ER on

20th but the medical records showed the contrary.

Kodish claimed J.L. did not have autism but

reactive attachment disorder with caregivers

though he never observed the interaction between

J.L. and his parents. The Juvenile Court was

“outrageous” with Darren Migita’s below-thestandard care for not consulting with the minor

patient’s main treating physician, talking with

parents, and reviewing his medical records before

jumping to a conclusion.

As the presiding judge for the dependency

action caused by defendants’ misstatements, Judge

Hollis Hill reviewed testimonies from J.L.’s

multiple medical providers; and made multiple

discretionary decisions including but not limited to

a (later-proven-to-be-wrong) decision of placing J.L.

in foster homes resulting into long-lasting damages.

After one-year’s investigation, the State

that

defendant

James

Metz’s

concluded

misstatements were simply “contrary to” the

medical facts in J.L.’s medical records and moved to

strike the dependency petition before trial. King

County Prosecutors moved to dismiss the wrongful

criminal charges against J.L.’s mother, Susan Chen

“in the interest of justice” and “due to the evidence

discovered after filing [which had been withheld].”

These rightful dismissals came too later. The

consequences for Susan Chen and her minor child,

J.L. were tragic. Due to the one-year removal,

interruption, and denial of his therapy, withheld

5

medications and treatment, J.L. lost all the abilities

he previously had and cannot regain the skills. At

age 10, he cannot speak, and scream uncontrollably,

sometime for hours, at any actual or possible

separation from his family. These conditions were

not present before he was falsely seized.

Defendant physicians’ negligence was true. All

the damages done to Chen and J.L. were real. Chen

was falsely arrested, jailed and prosecuted, and had

to carry on the pains with her son’s permanent

losing abilities as a result of Migita’s negligence.

J.L. did nothing wrong but had been harmed and

will carry on all the pains and damages to the end

of his life. It is unfair for him to be declined every

right to have his claims fully reviewed by the Court.

Whether or not J.L. will eventually prove his

case should be left to the jury, Petitioner will not go

into details here. 3 Fundamentally, J.L. is entitled

to his day in court with the assistance of a

competent counsel but had been unfairly deprived

of such right by Washington courts.

B. The State Superior Court Proceedings (I)

In October 2016, Chen pro se filed lawsuit

against the three defendant physicians. Chen

mistakenly added minors’ name in the complaint,

but quickly brought to the Court’s attention that

pro se parents cannot represent minors. See Clerk’s

3 The Opinion below did not include all facts. This Court is

invited to review facts in 120-124a, 195-198a, 83-93a.

6

paper (“CP”) 4 (“I was not able to represent my

children”); and asked the court to give them time to

retain an attorney (CP 5). The issue was

unaddressed.

In December 2016, Defendants moved for a pre­

discovery summary judgment, arguing at length

that trial court lacked personal jurisdiction over

them due to Chen’s improper service, and that lack

of signature on the complaints. They concluded the

defects rendered the complaint void ab initio. See

App. I, at 62a, 65a.

In their motion for dismissal, the defendant

doctors (joined by SCH) made a lengthy argument

that the improper service and lack of signature on

two of the complaints rendered the complaints void

ab initio. Thus, they stated that:

•

“this Court lacks personal jurisdiction over Dr.

Migita, Dr. Kodish, and Dr. Metz because

Plaintiffs failed to effect original service of

process” See App I, at 37a.

•

“Voided complaints have no legal effect and

are not subject to later amendment because

there is nothing to amend” See Id, at 38a

•

if the summons and complaint are not

completed within 90 days, “the action is

treated as if it had not been commenced” See

Id, at 58a;

•

“If the original complaint is void, there is

nothing to amend (Id, at 61a); “Something that

is “void” has no legal effect” (Id at 62a);

7

•

“the filing of a void complaint does not

commence a civil action” (Id, at 64a);

•

“the complaint Plaintiff seeks to amend does

not exist, it is a nullity because it was void ab

initio and “there can be no ‘relation back’ to a

pleading . . . that was a nullity from the start”

(Id, at 65a); and

•

plaintiffs’ complaints should be dismissed

“because they were void ab initio, and

therefore, they failed to confer subject matter

jurisdiction upon this Court” (Id, at 66a).

In support the motion each defendant

submitted several sentence declarations (Id, at 7576a; 77-78a; 79-80a) and twenty pages’ medical

records (the entire medical records were 600 pages).

Judge Hill declined Petitioners’ very first request

for weeks continuance to allow the appearance of

counsel, granted the summary judgment and

entered a dismissal order, but silent in language

about whether it was with or without prejudice.

App F, at 24-26a.

Chen moved for reconsideration, asking the

Court to clarify the order was without prejudice as

to the minor. Chen wrote,

The Order is silent as to whether this

dismissal was with or without prejudice.

As to the minors’ claims only, the dismissal

should be without prejudice for re-filing, as

they are still in their minority, and the

statute of limitations is tolled until they

8

reach majority. RCW 4.16.190. Schroeder v.

Weighall et al. 179 Wn.2d 566; 316 P.3d

482; 2014 Wash., holding RCW 4.16.190 (2),

which excluded medical malpractice claims

from tolling unconstitutional.

Alternatively, due to failure to appoint a

GAL to bring the action, the action on

behalf of the minors was a nullity, and

there was no action on behalf of the minors

for judicial consideration, and therefore no

action to dismiss.

Judge Hill denied the motion, again, without

any explanation. App. F, 22-23a.

Chen appealed, pleading for a clear judgment as

the party bound by the judgment. Chen’s appeal

was dismissed.4 Chen sought discretionary review

at the state supreme court, pleading an answer for

the ambiguous order in 2019, which was not

accepted.

C.The State Superior Court Proceedings (II)

Chen later obtained J.L. 600 pages’ complete

medical records from a separate civil action (where

she was represented) and filed motion to vacate the

2017 order before the chief judge, Ken Schubert.

^ Chen’s request for appointment of counsel for minor, J.L. as a

reasonable accommodation under ADA and GR 33 was denied by the

Court of Appeals. The Clerk ruled that, “[i]t appears that appointing

counsel in this case risks fundamentally changing the nature of

appellate court services.” See App E, at 21a.

9

Migita’s appellate attorney Smith Goodfriend

(“Goodfriend”) was Chen’s consulting counsel. Chen

moved to disqualify Goodfriend which was granted

by the trial court (See App H, at 34-36a).

Relying on the Washington Supreme Court’s

holding in State v. Nw. Magnesite Co., 28 Wn.2d 1,

182 P.2d 643 (1947) that a dismissal without

prejudice is the limit that a court lacking personal

jurisdiction could act, Judge Schubert eventually

granted Chen’s Motion to Vacate the 2017 Order.

See App G, at 30-33a. Judge Schubert wrote,.

Whether the Court dismissed plaintiffs’

complaint on jurisdictional or substantive

grounds is critical. If the Court did not have

personal jurisdiction over Defendants, then

it had no power to rule on the merits of the

claims asserted against them and the

dismiss could not have been with prejudice

as a matter of law. See State v. Nw.

Magnesite Co., 28 Wn. 2d 1, 42, 182 P.2d

643, 664 (1947) (“However, we do not agree

with the trial court that the order

dismissing those respondents should be

with prejudice to the state's cause of action

against them. The court having been

without jurisdiction over those parties, by

reason of lack of proper service upon them

or of general appearance by them, it had no

power to pass upon the merits of the state's

case as against those parties.”). But if the

Court did have personal jurisdiction over

Defendants, then it could properly reach the

merits of plaintiffs’ claims against them and

10

the dismissal of those claims

presumably be with prejudice.

would

Under Washington laws, permission was

required for the entry of an order on motion to

vacate after the appeal was already filed. Judge

Schubert thus wrote,

Should the appellate court so permit, this

Court will enter a formal order vacating the

March 3 and April 10, 2017 orders pursuant

to CR 60(b) as to Defendants only. This

Court must receive that permission because

plaintiffs have appealed this Court's March

3 and April 10, 2017 orders and this order

will change a decision then being reviewed

by the appellate court. See RAP 7.2(e).

Before the Order was formally entered, Migita

appealed the Order. Judge Schubert entered a

clarifying that his order is not subject to appeal

before it was formally entered. See App G, at 27-29a.

Chen contended that the order was unappealable

because the order was not even a formal order, but

an intent; and even if it was a formal order, it was

an interlocutory decision because it did not affect

parties’ rights. Chen argued, the order vacating

order granting summary judgment is similar to an

order denying summary judgment which is not an

appealable order. The Court denied Chen’s request

to dismiss a pre-mature appeal.

Two months before the Court of Appeals

decided the appeal. Chen submitted RAP 10.8

Statement of Additional Authorities. App L at 1712a):

11

Pursuant to RAP 10.8, Appellants cite the

following additional authorities, with regard

to issues in their opening brief, i.e., (1)

whether trial court lacking personal

jurisdiction can reach merits (e.g., Brief at P.

20- 24) and (2) whether minors had been

properly before the court (e.g., Brief at P. 31;

39).

Melo v. U.S. 505 F 2d 1026 (8th Cir. 1974)

("Once jurisdiction is challenged, the court

cannot proceed when it clearly appears that

the court lacks jurisdiction, the court has no

authority to reach merits, but rather should

dismiss the action.")

28 U.S. Code § 1654 ("In all courts of the

United States the parties may plead and

conduct their own cases personally or by

counsel...”.).

Johns v. County of San Diego, 114 F. 3d 874,

877 (9th Cir. 1987) (“a nonlawyer ‘has no

authority to appear as an attorney for

others than himself’)

Wash. State Bar Assn. v. Great W. Union

Fed. Sav. & Loan Assn., 91 Wn.2d 48, 586

P.2d 870 (1978) (“[ojrdinarily, only those

persons who are licensed to practice law in

this state...“[t]he ‘pro se’ exception are quite

limited and apply only if the layperson is

acting solely on his own behalf.”

RCW 2.48.170 (“Only active members may

practice law”).

12

The Court of Appeals did not address any the

above authorities, reversed Judge Schubert’s Intent

to vacate the 2017 Order granting Summary

Judgment, opined that the trial court was not

obliged to first determine the jurisdiction, and

concluded that Judge Schubert abused his

discretion for resolving the jurisdictional issue in

Chen’s favor. App C, at 14a. (“We need not resolve

the issue of whether Judge Hill, in fact, first

resolved the jurisdictional issue in Chen’s favor.”).

Chen sought the second discretionary review at

the state supreme court, challenging that “Division

the

fundamental

One’s

decision

ignores

jurisdictional issue” (App N.at 209a) and the Court

was under “nondiscretionary duty” to vacate the

underlying 2017 order which was void ab initio. {Id,

at 214a). Chen argued that “[a] judgment entered

by a court which lacks jurisdiction is void and must

be vacated whenever the lack of jurisdiction comes

to light. Allied Fid. Ins. Co. v. Ruth, 57 Wn.App 783,

790 P.2d 206 (1990).” (Id, at 214a)

The Court of Appeals further awarded fees and

costs to Migita and Seattle Children’s Hospital

under RAP 14.2. Chen’s contention that RAP 14.2

should not apply to indigent Respondent who was

at no fault, but passively forced to respond to the

appeal initiated by Migita was denied. Chen sought

discretionary review in Washington state supreme

court, which was denied. See App. B, at 2a.

Thus far, Chen has exhausted all the state level

remedies.

13

REASONS FOR GRANTING THE PETITION

Jurisdiction is the elementary prerequisite for a

court to exercise its judicial power over the case.

Without jurisdiction, the court can do nothing but

to dismiss the case without prejudice. Ex parte

McCardle, 7 Wall. 506, 514 (1869). Jurisdiction is

always the first question a court must address;

Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379,

382 (1884). It is “the responsibility of all courts.”

Baltimore Contractors, Inc. v. Bodinger, 348 U.S.

176, 181 (1955). When the lower courts lack

jurisdiction, this Court is obliged to exercises its

supervisory power for “the purpose of correcting the

error of the lower court.” United States v. Corrick,

298 U.S. 435, 440 (1936).

Here, the Washington court suggested, “[the

chief judgej’s conclusions that Judge Hill was

required to address the personal jurisdiction issue

before the merits ... We need not resolve the issue

of whether Judge Hill, in fact, first resolved the

jurisdictional issue in Chen's favor.” See App C, at

14a. If this suggestion is accepted, the legal system

will be in disordered condition, e.g., a California

Court could rule against a Florida resident without

having to first establish jurisdiction or a

bankruptcy court could take over matters in

criminal court even having no subject-matter

jurisdiction. This Court should reverse in light of

McCardle and Mansfield.

It has been the unanimous decision through all

circuits across the country that a lay parent cannot

represent her minor child in courts. The

Washington court suggested differently. This Court

14

should accept for review and resolve the conflicts.

See SUP. CT. R. 10 (b).

The

Resolve

I. The

Court

Must

Defects Whenever

Jurisdiction

Comes To Light.

Jurisdiction is the power to exercise authority

over persons and things within a territory. “Without

jurisdiction the court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and

when it ceases to exist, the only function remaining

to the court is that of announcing the fact and

dismissing the cause.” Ex parte McCardle, 7 Wall.

506, 514 (1869). “The statutory and (especially)

constitutional elements of jurisdiction are an

essential ingredient of separation and equilibration

of powers, restraining the courts from acting at

certain times, and even restraining them from

acting permanently regarding certain subjects.”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

101 (1998); United States v. Richardson, 418 U.S.

166, 179 (1974); Schlesinger v. Reservists Comm, to

Stop the War, 418 U.S. 208, 227 (1974).

Given its importance, jurisdiction is probably

one of the most reviewed issues before this Court.

For example, this Court has dealt with the issue

seven times in five years, e.g., Asahi Metal Indus.

107

S.

Ct.

Superior

Court,

Co.

v.

1026 (1987); Burger King Corp. v. Rudzewicz, 105 S.

Ct. 2174 (1985); Phillips Petroleum v. Shutts, 472

U.S. 797 (1985); Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Calder

v. Jones, 465 U.S. 783 (1984); Keeton v. Hustler

Magazine, 465 U.S. 770 (1984); Insurance Corp. of

15

Ireland v. Compagnie de Bauxites des Guinee, 456

U.S. 694(1982). From 2011 to 2017, this Court

decided six personal jurisdiction cases. See BristolMyers Squibb Co. v. Superior Court of Cal, 137 S.

Ct. 1773 (2017); BNSF Ry. Co. v. Tyrrell, 137 S. Ct.

1549 (2017); Walden v. Fiore, 571 U.S. 277 (2014);

Daimler AG v. Bauman, 571 U.S. 117 (2014);

Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 U.S. 915 (2011); J. McIntyre Mach., Ltd. u.

Nicastro, 564 U.S. 873 (2011).

“On every writ of error or appeal, the first and

fundamental question is that of jurisdiction, first, of

this court, and then of the court from which the

record comes. This question the court is bound to

ask and answer for itself, even when not otherwise

suggested, and without respect to the relation of the

parties to it.” Great Southern Fire Proof Hotel Co., v.

Jones, 177 U.S.. 449, 453 (1900). Jurisdiction

“would normally be considered a threshold question

that must be resolved...before proceeding to the

merits.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 101 (1998). Jurisdiction is always an antecedent

question and is “inflexible and without exception.”

Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379,

382 (1884).

The Court cannot resolve contested questions

of law when its jurisdiction is in doubt. The

threshold question in this case was whether the

Washington Court had personal jurisdiction in 2017

to rule on the merits of the case when it already

dismissed the claims for lack of personal

jurisdiction upon the defendants. The Washington

court’s jurisdiction was further blurred about

because the minor plaintiffs had not been properly

16

before the court when they were unrepresented by

legal counsel and mandatory guardian ad litem.

Without first addressing the contested threshold

jurisdiction question that “the court is bound to ask

and answer for itself’ “on every writ of error or

appeal.” Great Southern Fire Proof Hotel Co., v.

Jones, 177 U.S.. 449, 453 (1900). This was exactly

what Judge Schubert said at the hearing:

You deal with jurisdiction first. That’s the way

it’s always been. That’s the way it should have

been here.

App K, at 136a; also App N, at 202a.

The Washington court disagreed. “We need not

resolve the issue of whether Judge Hill, in fact, first

resolved the jurisdictional issue in Chen’s favor,”

and “the court must have dismissed the claims

against the physicians on the merits.” See App C at

10a.lt further concluded that Judge Schubert

abused the discretion for first resolving jurisdiction

issue. The decision directly conflicts with this

Court’s holdings, e.g., Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998) (Jurisdiction is a

threshold question that must be “resolved first.”).

Washington Court of Appeals’ reasoning that a

court could ignore jurisdiction but just proceed to

if

act on the merits is dangerously flawed

accepted, Oregon Courts could act against

Washington residents without having to first obtain

jurisdiction; or trial court could take over appellate

court’s appellate authority as long as it chooses to

do so. This Court’s supervisory power is thus

justified. See SUP. CT. R. 10 (a).

17

Jurisdiction is a matter of constitutional

concern. See e.g., Shaffer v. Heitner, 433. U.S. 186

(1977); Hanson o. Denckla, 357 U.S. 235 (1958); also

Brilmayer, How Contacts Count: Due Process

Limitations on State Court Jurisdiction, 1980 Sup.

Ct. Rev. 77, 77-79 (assuming traditional bases of

jurisdiction are matter of constitutional law);

George, In Search of General Jurisdiction, 64 TuL.

L. Rev. 1097, 1107 (1990) (assuming personal

jurisdiction is an issue of constitutional law);

Kurland, The Supreme Court, the Due Process

Clause and the In Personam Jurisdiction of State

courts: From Pennoyer to Denckla: A Review, 25 U.

Chi. L. Rev. 569, 573 (1958) (assuming personal

jurisdiction is an issue of constitutional law).

The Washington courts did not have

jurisdiction to render judgment against minor, J.L.

because he had not been properly before the courts

because minors are considered legally incompetent

and he was prohibited from being represented by

pro se parent. Both federal and state laws, prevent

a non-attorney from representing on others’ behalf

and there is no exception for pro se parents. 28 U. S.

C. § 1654; RCW 2.48.180. All circuits across the

country ruled that minor is not bound to their

parents’ pro se actions and had chosen to enter a

dismissal without prejudice, “thereby giving

[minors] further opportunity to secure an attorney

at some later time within the limitations

period...[minor] should not be prejudiced by his

father’s failure to comply with the court order.”

Johns v. County of San Diego, 114 F.3d 874, 876-77

(9th Cir. 1997). Here, Washington courts’ refusal to

clarify the dismissal as to the minor was without

18

prejudice has effectively deprived Chen and J.L.’s

Due Process rights to judicial notice. This Court

should accept for review and reverse under

Supremacy Clause, e.g., Cipollone v. Liggett Group,

Inc., 505 U.S. 504 (1992). See SUP. CT. R. 10 (b).

The core issue for this appeal is jurisdiction:

whether the court has authority to render judgment

against unrepresented minors; whether a court

lacking personal jurisdiction over defendants can

further rule on the merits; and whether the order

was void ab initio given the extraordinary facts:

unsigned complaints, improperly served defendants

and statutorily recused judge and essentially

unrepresented minors.

“It is the responsibility of all courts to see that

no unauthorized extension or reduction of

jurisdiction,

direct

or

indirect,”

Baltimore

Contractors, Inc. v. Bodinger, 348 U.S. 176, 181

(1955). When the lower courts lack jurisdiction, this

Court is obliged to exercises its supervisory power

for “the purpose of correcting the error of the lower

court.” United States v. Corrick, 298 U.S. 435, 440

(1936). See e.g., McGirt v. Oklahoma, 591. U.S.

__(2020) (reversing conviction judgement entered by

Oklahoma state court when the alleged unlawful

act was only subject to federal jurisdiction, not state

jurisdiction). The McGirt decision results in

“thousands of convicted criminals may have their

convictions undone” Wikipedia. See also Hanson v.

Denckla, 357 U.S. 235 (1958) (“The Florida court

did not have in rem jurisdiction...or personal

jurisdiction... without such jurisdiction it had no

power under Florida law to pass on the validity of

the trust. Therefore, its decree is void”).

19

II.

This Case Is An Appropriate Vehicle

Important

The

Deciding

For

Constitution Question Related to Due

Process Rights.

A. The Ambiguous Order Itself Is A Due

Process Violation.

Due process provides parties right to notice,

hearing and an impartial judicial officer. The

burden of ensuring due process rights was upon

parties as well as the court. Caperton v. A. T.

Massey Coal Co., 556 U.S. 868 (2009) (when the

probability of actual on the part of the judge or

decisionmaker is too high to “be constitutionally

tolerable”).

Petitioner did not receive an adequate judicial

notice as to the 2017 Order. The silence in the

Order and absence of language as to the legal

effects as well as the Court’s refusal for clarification

resulted in four years’ appellate inquiries. The

question presented is simple and straightforward:

Whether a litigant has a Due Process right to a

clear judgment from the court.

J.L. had not been properly before the Court,

although J.L.’s name was mistakenly added in the

complaint (Chen quickly clarified to the Court, see

CP 4). As argued by the Respondents, the dismissal

to J.L. was proper because the mandatory guardian

ad litem was not appointed. CP 524-5. See also

RCW 4.08.050. Mezere v. Flory, 26 Wn. 2d 274, 173

P.2d 776 (1946) (“the appointment of a guardian ad

litem is mandatory.”). Dependency of A. G., 93

20

Wn.App. 268, 968 P.2d 424 (1998) (“The [guardian

ad litem] statute is mandatory, and the children’s

interests are paramount.”). Newell v. Ayers, 23 Wn.

App. 767, 598 P.2d 3 (1979) (“the rule is that a

minor must be represented by a guardian ad litem,

or the judgment against him may be voidable at his

option.”). Washington supreme court held that

absent a guardian ad litem who could receive notice

on minor’s behalf, the minor plaintiffs action was

not time barred. Anderson v. Dussault, 181 Wn.2d

360, 333 P.3d 395 (2014). Also State v. Douty, 92

Wn. 2d 930, 603 P.2d 373 (1979) (“it should be

noted that the child, though named in the action,

was never served. Consequently, he is not before

the court.”).

Most importantly, of course, J.L. was not

represented, and he cannot be represented by pro se

parent. 28 U. S. C. § 1654; RCW 2.48.180. Under

Washington law, J.L. had not been properly before

the court, e.g., Wash. State Bar Assn. v. Great W.

Union Fed. Sav. & Loan Assn., 91 Wn.2d 48, 586

P.2d 870 (1978) (“[o]rdinarily, only those persons

who are licensed to practice law in this state... [t]he

‘pro se exceptions are quite limited and apply only

if the layperson is acting solely on his own behalf.”).

legally

incompetent,

without

are

Minors

representation, the action on behalf of J.L was a

nullity, and there was no action on behalf of the

minors for judicial consideration.

Respondents mistakenly suggested the statute

of limitation has expired (App I, at 59-60a), but this

does not apply to minors. In fact, Washington

supreme court struck down RCW 4.16.190 (2),

holding it unconstitutionally deprived minors’

21

rights under equal protection. Schroeder v. Weighall

et al. 179 Wn.2d 566; 316 P.3d 482 (2014). The

Washington Supreme Court held that, minor’s

medical malpractice claim is subject to tolling until

reaching the majority of age.

Absent legal representation and the guardian

ad litem, minor J.L. has not been properly before

the court and the Court has not obtained

jurisdiction over him. “Without jurisdiction the

court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when

it ceases to exist, the only function remaining to the

court is that of announcing the fact and dismissing

the cause.” Ex parte McCardle, 7 Wall. 506, 514

(1869).

In Motion for Reconsideration, Chen asked the

court to clarify that the dismissal should be without

prejudice as to the minors:

As to the minors’ claims only, the dismissal

should be without prejudice for re-filing, as

they are still in their minority, and the

statute of limitations is tolled until they

reach majority. RCW 4.16.190. Schroeder v.

Weighall et al. 179 Wn.2d 566; 316 P.3d

482; 2014 Wash., holding RCW 4.16.190 (2),

which excluded medical malpractice claims

from tolling unconstitutional.

Alternatively, due to failure to appoint a

GAL to bring the action, the action on

behalf of the minors was a nullity, and

there was no action on behalf of the minors

22

for judicial consideration, and therefore no

action to dismiss.

See App J. at 82a

The Court (Judge Hill) refused to clarify, except

for an order denying reconsideration. Chen was

forced to go through four (4) years’ time-consuming

appeal, for the sole purpose of seeking a

clarification as to the ambiguous order. Her appeal

was dismissed. Judge Schubert observed the

jurisdictional defects and vacated the ambiguous

order on Chen’s motion to vacate, it was reversed on

Migita’s interlocutory appeal.

As a threshold requirement of Due Process, J.L.

was still entitled to a clear judgment. However, he

did not even know whether or not he was bound to

the judgment - Judge Hill refused to clarify, except

denying

order

another

for

reconsideration/clarification, The Chief Judge

agreed that “ [t]he parties (and the appellate court)

are entitled to know the legal effect of this Court’s

orders.” There, he specially raised the jurisdictional

inquiry ( See App G, 31a):

Was dismissal due to a lack of personal

jurisdiction, and thus without prejudice? Or

was dismissal with prejudice due to a

finding of both personal jurisdiction over

Defendants and a lack of meritorious claims

against them?

The Chief judge noted that the limit of a court

lacking jurisdiction is the entry of dismissal without

prejudice. Thus, the Court ruled,

23

The silence of this Court’s orders in that

regard creates a question of regularity of

the proceedings that justifies relief from the

operation of those orders.

Id, at 31a.

“A judgement entered by a court which lacks

jurisdiction is void and must be vacated whenever

the lack of jurisdiction comes to light.” Allied Fid,

Ins. Co. v. Ruth, 57 Wn. App. 783 790 P.2d 206

(1990). Following the law, the chief judge vacated

the order with jurisdictional defects, which was

pitifully found by the Court of Appeals to “abuse the

discretion.” The Court of Appeals further ruled that

“[the court] need not resolve the issue of whether

Judge Hill, in fact, first resolved the jurisdictional

issue in Chen’s favor.” App C, at 14a. The Court of

Appeals claimed Judge Schubert’s resolution of

jurisdictional defect was to correct a legal error

made by Judge Hill. Opinion at xx. Legal errors are,

however, associated with a court that has complete

jurisdiction. Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490

(1968). The Court of Appeals was silent how a court

could

disregard

the

threshold jurisdiction

requirement. 5

^ The Court of Appeals suggested Judge Hill must have

dismissed the case on the merits. This is not, however, the

only explanation of 2017 order because SCH repeatedly stated

that it cannot be sued for “vicarious liability” because “the

three co-defendant physicians are not employees of Seattle

Children’s Hospital.” See CP 412, also CP 527.

24

As the affected party, Chen sought judicial

clarification that they are entitled to, i.e., a clear

judgment about the legal effect. Judge Hill refused

to clarify whether it was with or without prejudice

for the minors, except for a denial order. The silence

of language as to with/without prejudice in the

orders "that fail to remark [on] a jurisdiction issue

are not assumed to have resolved it by their

silence." Crawford v. United States, 796 F.2d 924,

928 (7th Cir. 1986) (internal citations omitted).

The issue here is not just whether or not the

order was wrong, but that J.L. was entitled to a

clear due process notice about whether and/or how

he was bound to that order. The ambiguous order

(and Judge Hill’s refusal) itself is a due process

violation.

B. The Trial Judge’s Failure To Recuse

Is A Due Process Violation.

impartiality,

of

principle

“[T]he

disinterestedness, and fairness on the part of the

judge is as old as the history of courts.” State ex rel

McFerran v. Justice Courts of Evangeline Starr, 32

Wn.2d 544, 548, 202 P.2d 927 (1949) (quoting State

ex. Rel. Barnard v. Bd. Of Educ., 19 Wash. 8, 17, 52

P.317 (1898)); also Diimmel v. Campbell, 68 Wn.2d

697, 699, 414 P.2d 1022 (1966) (“It is incumbent

upon members of the judiciary to avoid even a cause

for suspicion of irregularity in the discharge of their

duties.”). “[0]ur system of law has always

endeavored to prevent even the probability of

unfairness,” In re Murchison, 349 U.S. 133, 136, 75

S. Ct. 623, 99 L. Ed. 942 (1955). The judge must

25

recuse himself where “he has an interest in the

outcome.” Id.

Both American and Washington Code of Judicial

Conduct Rule 2.11(A)(6)(d) requires disqualification:

(A) A judge shall disqualify himself or herself in

any proceeding in which the judge’s

impartiality* might reasonably be questioned,

, including but not limited to the following

circumstances:

(6) The judge:

(d) previously presided as a judge over the

matter in another court.

(emphasis added).

Judge Hill previously presided over the matter

in another court (Juvenile Court), thus was

mandatorily recused from this case. Further, this

case was as result of the underlying dependency

action where Judge Hill was the presiding judge

who had made multiple discretionary decisions,

including but not limited to order an out-of-home

placement for J.L., which turned out to be wrong.

The state moved to unilaterally strike the

dependency action before trial and the handling

assistant attorney general apologized to Chen.

Judge Hill reviewed evidence and testimonies from

witnesses who would re-appear and testify at the

current case that was based on damages occurred

from the wrongful removal and the wrongful out-ofhome placement, highly related to Judge Hill,

26

Judge Hill’s impartiality was thus reasonably

questioned.

Here, the Court of Appeals mistakenly claimed

that Judge Hill’s deep involvement in the

underlying dependency case does not require a

recusal because “We presume, however, that judges

perform ‘regularly and properly and without bias or

prejudice.” See App. C at 17a. However, the law

does require to decide whether in fact the judge was

influenced. Aetna Life Ins. Co. v. Lavoie, 475 U.S.

813 (1986). Also see Turney v. Ohio, 273 U.S. 510

(1927).The Turney Court concluded that the Due

Process Clause incorporated the common-law rule

that a judge must recuse himself when he has a

direct, personal, substantial, pecuniary interest in a

case. This rule reflects the maxim that [n]o man is

allowed to be a judge in his own cause; because his

interest would certainly bias his judgment, and, not

improbably, corrupt his integrity. The Federalist No.

10, p. 59 (J. Cooke ed. 1961) (J. Madison).

Judge Hill does have a direct interest in the

outcome of the case because her erroneous decision

to place J.L. in out-of-home placement in the

underlying dependency case. Judge Hill should

have recused from hearing the case but did not.

Judge Hill’s failure to recuse had deprived

Petitioner’s Due Process right to an impartial

tribunal. See Frank, Disqualification of Judges, 56

Yale L.J. 605, 611612 (1947) (same). It is axiomatic

that [a] fair trial in a fair tribunal is a basic

requirement of due process. In re Murchison, 349

U.S. 133, 136 (1955).

27

III.

The question presented involves a

of

exceptional

issue

recurring

threatens

the

that

importance

fundamental right of access to the courts.

A. Absent Legal Representation, J.L.’s access

to the Courts had been denied.

J.L. has a right to adequate representation. As a

minor, J.L. has rights to be heard, at a meaningful

time and in a meaningful manner through a

competent counsel. Absent this prerequisite, his

minimal access was denied.

Whether pro se parents could represent the

minor children in courts is a recurring issue.6 All

circuit courts across the county prohibit a non­

attorney from representing on others’ behalf, with

no exemption for pro se parents. Indeed, all circuits

to address the question subscribe to this rule. See

O’Diah v. Volkswagen of Am., Inc., 91 Fed. Appx.

159, 160 (1st Cir. 2004); Cheung v. Youth Orchestra

Found. Of Buffalo, Inc., 906 F.2d 59,61 (2d Cir.

1990); Osei-Afriyie v. Med. Coll. Of Pennsylvania,

937 F.2d 876, 882 (3d Cir. 1991); Myers v. Loudon

County Pub. Schs., 418 F.3d 395, 401 (4* Cir. 2005);

Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir.

2002); Smith v. Smith, 49 Fed. Appx. 618, 620 (7th

Cir. 2002); Johns v. County of San Diego, 114 F.3d

874, 876-77 (9th Cir. 1997); Meeker v. Kercher, 782

F.2d 153, 154 (10th Cir. 1986); Devine v. Indian

6 In 2007, this Court accepted for review but did not resolve

this issue. See Winkelman v. Parma City School District, 550

U.S. 516 (2007).

28

River County Sch. Bd., 121 F.3d 576, 578, 582 (11th

Cir. 1997), cert, denied, 522 (U.S. 1110(1998). These

decisions further support that dismissal without

prejudice is the limit that a court lacks personal

jurisdiction could act.

Washington courts have decades-long history of

rejecting non-attorney representation. Wash. State

Bar Assn. v. Great W. Union Fed. Sav. & Loan

Ass?r., 91 Wn.2d 48, 586 P.2d (1978) ("The pro se’

exceptions are quite limited and apply only if the

layperson is acting solely on his own behalf’)

(emphasis in original); Also Hagan v. Kassler

Escrow, Inc., 96 Wn.2d 443, 635 P.2d 730 (1981)

(“In passing RCW 19.62, allowing lay persons to

practice law, the legislature imprecisely usurped

the courts’ power. Accordingly, RCW 19.62 is

unconstitutionally as a violation of the separation of

powers doctrine.”).

The common law ban on lay parent

representation comports with 28 U.S.C. § 1654,

which provides that “In all courts of the United

States the parties may plead and conduct their own

cases personally or by counsel...” Non-attorney

representation is a crime in Washington. RCW

2.48.180. State v. Yishmael, 195 Wn.2d 155, 456

P.3d 1172 (2020).

The common law rule furthers several

important policy objectives. Pro se representation

carries with it risks that are not present, compared

to parties represented by counsel. McNeil v. United

States, 508 U.S. 106, 113 (1993) (a litigant without

counsel could make “a fatal procedural error”). This

case illustrates the point. In its Opinion, the Court

29

of Appeals admonished Chen’s incompetency, e.g.,

‘‘Chen made no request to SCH for medical records

through discovery or otherwise” before the

defendants moved for summary judgment.7 App C,

at 17a. Even finding Chen’s incompetency, the

Court did not appoint the mandatory GAL., but

concluding that J.L could be represented by a pro se

parent. Id, at 18a.

When an adult chose to proceed without

counsel, he assumes the risk. Graham-Humphresys

v. Memphis Brooks Museum of Art, Inc., 209 F.3d

552, 561 (6th Cir. 2000). However, minors are not

bound to their parents’ pro se actions in such

instances. Jurisdictions across the country had

chosen to enter a dismissal without prejudice,

“thereby giving [minors] further opportunity to

secure an attorney at some later time within the

limitations

period... [minor]

should

not

be

prejudiced by his father’s failure to comply with the

court order.” Johns v. County of San Diego. The

Second Circuit explained:

The choice to appear pro se is not a true

choice for minors who under state

law...cannot determine their own legal

actions. There is thus no individual choice

to proceed pro se for courts to respect...goes

without saying that it is not the interest of

minors or incompetents that they be

represented by non-attorneys. Were they

7 The order granted motion for summary judgment was

entered six months before the discovery cutoff.

30

have claims that require adjudication, they

are entitled to trained legal assistance so

their rights may be fully protected.

Chueng, 906 F.2d at 61 (remanding to district

court so it could either appoint counsel or dismiss

the complaint without prejudice); See also Johns v.

County of San Diego, 114 F.3d 874(9th Cir. 1997)

(directing the district court to change dismissal

with prejudice to without prejudice; “because the

goal is to protect the rights of infants, the

complaints should not have been dismissed with

prejudice as to minor”)- The Courts agreed that

“[t]he infant is always the ward of every court

wherein his rights or property are brought into

jeopardy, and is entitled to the most jealous care

that no injustice be done to him.” Osei-Afriyie v.

Medical College of Pennsylvania, 937 F.2d 876, 883

(3rd Cir. 1991).

B. This is an Ideal Vehicle to Address the

“Seldom” Reviewed but Important Rights of

Access to The Courts.

Writing for the Supreme Court in Bounds v.

Smith, 430 U.S. 817 (1977), Justice Thurgood

Marshall spoke confidently of "the fundamental

constitutional right of access to the courts." Justice

Marshall also stressed that the access needs to be

“meaningful”. Id.

This case presents an extremely unusual

situation involving a disabled minor whose access

was denied. He did not have any minimal access, let

alone “meaningful”. He was not represented, he was

not given an opportunity to conducted discovery,

31

the order was entered by the judge who previously

decided to place him in out-of-home placement leading to permanent and unreversible disabilities.

Access to the Courts must be meaningful. But

here, the minimal access for this disabled minor

had not even been satisfied. The issue here is not

whether or not J.L. will eventually be able to prove

his case or prevail at trial; but that his access

should not have been deprived for denying

appearance of his legal counsel. Whether or not the

case has merits, it should be left to the open courts,

instead of kicking an unrepresented disabled child

the courtroom, without

permanently out of

conducting any discovery. The facts that J.L. had

been denied counsel by the superior court, the

appellate court, the supreme court of Washington

will bring “chilling effects” to the public confidence

to our judicial system.

This Court should take this case as an

excellent vehicle to reiterate the importance of the

access to the courts, the cornerstone of our justice

system. “This Court has seldom been asked to view

access to the courts as an element of due process.”

Boddie u. Connecticut. 401 U.S. 371 (1971).

Decades could pass before this Court has another

opportunity to review this important issue.

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted

/s/ Susan Chen

Susan Chen, pro se Petitioner

PO BOX 134, Redmond, WA 98073