Rule 2.5 of rules of Appellate Procedure is important to this case. The City has made a motion to strike sections of the Citizens’ amicus briefs, specifically “those portions of amici’s briefs containing claims and arguments [and attachments] not presented to the trial court and to strike and not consider the attachments related to those claims and arguments.” … “[N]one of those issues and attachments … were presented to the trial court and no factual record was made before the trial court. … [T]here are no factual findings of the trial court related to the new issues …; there are no assignments of error related to those … issues; andthe issues are being raised for the first time by amici in this Court.”
My response will be first, that these issues were raised because the two initiatives were attached to the complaint; second, that the Court can take judicial notice of many of the facts raised because they are now recognized scientific fact; third, because RAP 2.5 says “… that a party may raise … for the first time in the appellate court: … manifest error affecting a constitutional right.
My third argument is the most important. There are constitutional issues at stake. One has the right not to be forced to consume the drug/poison fluoride because it violates his constitutional rights to liberty, freedom, personal bodily integrity, and privacy. One has the right to vote on such issues under the First and Fourteenth Amendment rights of free speech and the right to petition one’s government.
CIRCUMSTANCES WHICH MAY AFFECT SCOPE OF REVIEW
(a) Errors Raised for First Time on Review. The appellate court may
refuse to review any claim of error which was not raised in the trial
court. However, a party may raise the following claimed errors for the
first time in the appellate court: (1) lack of trial court jurisdiction,
(2) failure to establish facts upon which relief can be granted, and (3)
manifest error affecting a constitutional right. A party or the court may
raise at any time the question of appellate court jurisdiction. A party may
present a ground for affirming a trial court decision which was not
presented to the trial court if the record has been sufficiently developed
to fairly consider the ground. A party may raise a claim of error which was
not raised by the party in the trial court if another party on the same
side of the case has raised the claim of error in the trial court.
(b) Acceptance of Benefits.
(1) Generally. A party may accept the benefits of a trial court
decision without losing the right to obtain review of that decision only
(i) if the decision is one which is subject to modification by the court
making the decision or (ii) if the party gives security as provided in
subsection (b)(2) or (iii) if, regardless of the result of the review based
solely on the issues raised by the party accepting benefits, the party will
be entitled to at least the benefits of the trial court decision or (iv) if
the decision is one which divides property in connection with a dissolution
of marriage, a legal separation, a declaration of invalidity of marriage,
or the dissolution of a meretricious relationship.
(2) Security. If a party gives adequate security to make restitution if
the decision is reversed or modified, a party may accept the benefits of
the decision without losing the right to obtain review of that decision. A
party that would otherwise lose the right to obtain review because of the
acceptance of benefits shall be given a reasonable period of time to post
security to prevent loss of review. The trial court making the decision
shall fix the amount and type of security to be given by the party
accepting the benefits.
(3) Conflict With Statutes. In the event of any conflict between this
section and a statute, the statute governs.
(c) Law of the Case Doctrine Restricted. The following provisions apply
if the same case is again before the appellate court following a remand:
(1) Prior Trial Court Action. If a trial court decision is otherwise
properly before the appellate court, the appellate court may at the
instance of a party review and determine the propriety of a decision of the
trial court even though a similar decision was not disputed in an earlier
review of the same case.
(2) Prior Appellate Court Decision. The appellate court may at the
instance of a party review the propriety of an earlier decision of the
appellate court in the same case and, where justice would best be served,
decide the case on the basis of the appellate court’s opinion of the law at
the time of the later review.