In re Marriage of Muriel and Farris

What sanction did the court impose?

The court affirmed the parenting plan in full, holding that Rebekah's mental-health-treatment challenge was unpreserved and that the other rulings were within the superior court's discretion. It refused to find the appeal frivolous, because Johnathan did not show it was "devoid of any debatable issues," and denied his fee request. It declined Rebekah's requests based on intransigence, citing both parties' "extremely contentious and litigious behavior," and on RCW 26.09.140. Although her request did not invoke RAP 18.9, it awarded Rebekah appellate attorney fees under RAP 18.9(a) "for her time spent reviewing and responding to Jonathan's response brief," holding that "[i]n citing to a hallucinated case, Jonathan has submitted a frivolous filing that 'is so totally devoid of merit.'" The amount is to be determined by the commissioner under RAP 18.1(f). The sanctioned filer was the prevailing respondent: the award ran against him even though the appeal itself failed.

Why does In re Marriage of Muriel and Farris matter for law firms using AI?

In re Marriage of Muriel and Farris shows that a hallucinated citation can cost the party who wins the appeal. Division Two affirmed the parenting plan in every respect and refused to find the appeal frivolous, yet it still awarded the losing appellant her fees for the time spent reviewing and responding to the respondent’s brief. The reason was a case the respondent cited twice, “Marriage of Sanjuan,” which the appellant’s reply showed does not exist. The court held that “[i]n citing to a hallucinated case, Jonathan has submitted a frivolous filing,” applying to a single brief the RAP 18.9(a) frivolousness standard that the opinion had just quoted for appeals.

The court’s AI finding is a surmise, not an admission or a record finding: “We surmise that Jonathan used artificial intelligence (AI) to assist in writing his brief, which resulted in an ‘AI hallucination.’” The court phrased its holding in terms of the citation, not the tool: “In citing to a hallucinated case, Jonathan has submitted a frivolous filing.” It accepted that the respondent “is entitled to use AI to write his response brief” and grounded the violation in the duty “to conduct a reasonable inquiry and confirm that the claims he advances are well-grounded in fact and in law,” applying the principle that a pro se litigant is held to the same standard as an attorney.

The fee analysis around the sanction is worth noting. The court denied Johnathan’s frivolous-appeal request because he did not show the appeal was “devoid of any debatable issues,” rejected Rebekah’s intransigence theory because both parties had engaged in “extremely contentious and litigious behavior,” and declined need-based fees under RCW 26.09.140. The only fees it awarded were “for time spent reviewing and responding to Jonathan’s response brief,” the brief with the nonexistent case. Firms documenting compliance may wish to consider that in this unpublished decision Division Two made such an award even though it rejected every other fee theory.