Discretionary review is the second level of appeal in the Washington State appeals process. If you lose at the first appeal level, you can ask a higher court to conduct further review (a party seeks review of Superior Court decisions in the Court of Appeals and in the Supreme Court for decisions made by the Court of Appeals).
This next level of review is not automatic. A party gets a direct appeal from a misdemeanor conviction or administrative ruling only to the Superior Court (likewise to the Court of Appeals for felony convictions). Any further appellate review is not guaranteed. Ultimately, it is up to the discretion of the court whether to accept the case for further consideration on appeal – hence the name.
A party seeks review by filing a motion for discretionary review. There are certain guidelines that the appellate courts must follow in deciding whether or not to take the case and a large percentage of motions for review are rejected.
One of the reasons the appellate courts are so selective is that Court of Appeals and Supreme Court decisions have precedential value, which means they make law that applies to all lower courts and future cases.
Generally, the types of cases accepted on this level involve issues likely to have broad application and may recur in the future.
Needless to say, discretionary review is a rare opportunity if granted. With the right facts and a good argument, it can be tool for justice for our clients and others.