Jeffrey R. McKee v. Dep't of Corrections

• Court: Court of Appeals of Washington
• Decided: January 19, 2023
• Docket: 37870-5
• Status: Unpublished

Opinion

FILED JANUARY 19, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

JEFFREY R. McKEE, ) No. 37870-5-III ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) DEPARTMENT OF CORRECTIONS, ) ) Respondent. )

LAWRENCE-BERREY, J. — Jeffrey McKee appeals the trial court’s summary

judgment dismissal of his claims against the Department of Corrections (DOC). We

summarily affirm because Mr. McKee intentionally filed an incomprehensible brief.

FACTS

Jeffrey McKee is an inmate in the custody of DOC. In March 2019, he filed suit

against DOC. He asserted that DOC violated the Uniform Health Care Information Act

(UHCIA), chapter 70.02 RCW, and that several of its policies violated his constitutional

rights. In October 2020, the trial court granted DOC’s motion for summary dismissal of

Mr. McKee’s claims. It additionally awarded DOC reasonable attorney fees of $25,000

for prevailing on the UHCIA claim. No. 37870-5-III McKee v. Dep’t of Corrections

Mr. McKee timely appealed.

Procedure on appeal

On July 8, 2021, Mr. McKee filed a 137-page opening brief, together with a

motion to allow filing of an overlength brief. Our clerk/administrator denied his

motion and directed him to file a 50-page opening brief. Letter from Renee Townsley,

Clerk of Court, Wash. Ct. of Appeals 3, to Jeffrey R. McKee, McKee v. Dep’t of Corr.,

No. 37870-5-III (Wash. Ct. App. July 12, 2021). Mr. McKee filed a motion to modify

our clerk/administrator’s ruling. We originally denied his motion, but later entered an

amended order allowing Mr. McKee to file an overlength brief of 65 pages. Order

Denying Motion to Modify Clerk’s Letter Ruling, McKee v. Dep’t of Corr.,

No. 37870-5-III (Wash. Ct. App. Aug. 31, 2021); Am. Order Granting Motion to Modify

Clerk’s Ruling, McKee v. Dep’t of Corr., No. 37870-5-III (Wash. Ct. App. Sept. 7, 2021).

On November 2, 2021, Mr. McKee sought discretionary review of our order. A

Supreme Court commissioner denied review. Ruling Denying Review, McKee v. Dep’t of

Corr., No. 100350-1, (Wash. Dec. 30, 2021). In its denial, the commissioner explained:

“Whether to allow additional pages or words for appellate briefing is a matter for the

clerk’s discretion. RAP 18.17(c). Nothing in Mr. McKee’s written submissions or

2 No. 37870-5-III McKee v. Dep’t of Corrections

statements at oral argument indicate a compelling need for more pages or words to draft

an effective opening brief.” Id. at 2.

On March 15, 2022, Mr. McKee filed an amended opening brief that contained

three appendixes. The appendixes included materials not contained in the record on

review. One appendix was his original 137-page brief. Our clerk/administrator rejected

Mr. McKee’s amended brief and directed him to file a new amended brief. Letter from

Tristen Worthen, Clerk of Court, Wash. Ct. of Appeals 3, to Jeffrey R. McKee, McKee v.

Dep’t of Corr., No. 37870-5-III (Wash. Ct. App. Mar. 21, 2022).

On March 31, 2022, Mr. McKee filed his new amended brief. The new brief is 51

pages, although it could have been 65 pages. It appears that Mr. McKee literally removed

words and sentences from his rejected 137-page brief to shorten it to 51 pages.

Mr. McKee’s statement of the case consists of incomplete sentences and is

difficult if not impossible to decipher. His arguments are wholly nonsensical. By way of

example, he writes: “Department argue statute no mention legal property and McKee pay

filing fee therefore statute constitutional.” Appellant’s Br. at 33. This is only one

example of hundreds of similarly incomprehensible sentences in his new amended brief.

3 No. 37870-5-III McKee v. Dep’t of Corrections

ANALYSIS

Mr. McKee lists 14 assignments of error. Most relate to discovery issues. Only a

handful relate to substantive issues. Even after careful review of his statement of facts

and arguments, we are unable to discern the underlying facts nor can we discern why the

trial court erred.

DOC argues this court should summarily affirm because Mr. McKee has failed to

adequately brief the issues. To prevent similar filings, we agree.

The Rules of Appellate Procedure are intended to enable the court and opposing

counsel to efficiently and expeditiously review the accuracy of the factual statements

made in the brief and to efficiently and expeditiously review the relevant legal authority.

Litho Color, Inc. v. Pac. Emps. Ins. Co., 98 Wn. App. 286, 305-06, 991 P.2d 638 (1999).

For this reason, courts should not consider issues that lack adequate, cogent argument and

briefing. Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 808, 225 P.3d 213

(2009); Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 160, 795 P.2d 1143 (1990);

Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989); see also

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,

hunting for truffles buried in briefs.”).

4 No. 37870-5-III McKee v. Dep 't of Corrections

DOC notes that Mr. McKee has experience filing proper appellate briefs, so his

failure to file a proper brief here appears intentional. Resp't's Br. at 20. We agree.

Were we to spend our time hunting for whatever truffles might be buried in Mr. McKee's

brief, we would be rewarding bad behavior. We refuse to do so. We summarily affirm

the trial court.

Attorney fees

DOC, citing RAP 18.1 and RCW 70.02.170(2), requests reasonable attorney fees

and costs to the extent it has incurred fees and costs responding to Mr. McKee's UHCIA

claims. We grant its request.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

WE CONCUR:

~~J.::r. Fearing, J.