WSR 99-11-019

RULES OF COURT

STATE SUPREME COURT


[ May 6, 1999 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO SAR 4, SAR 6, SAR 8, SAR 9, SAR 10, SAR 11, SAR 12, SAR 13, SAR 15, SAR 16, SAR 18, SAR 21, SAR 22; AND RAP 15.2)

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ORDER

NO. 25700-A-651

The Court having recommended the adoption of the proposed amendments to SAR 4, SAR 6, SAR 8, SAR 9, SAR 10, SAR 11, SAR 12, SAR 13, SAR 15, SAR 16, SAR 18, SAR 21, SAR 22; and RAP 15.2, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice and that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 6th day of May, 1999.
Guy, C.J.


Alexander, J.


Smith, J.


Madsen, J.


Johnson, J.


Sanders, J.


Talmadge, J.


Ireland, J.



RULE 4

TERMS AND SESSIONS OF THE SUPREME COURT


The regular sessions terms of the Supreme Court shall be held in the Supreme Court, the Temple of Justice, at the capital, beginning on the second Monday of January, the second Monday of May, and the second Monday of September each year. The court will not sit for the regular hearing of cases in July and August.

Sessions of the court shall commence at 9 a.m. or at such other time as the court may order.

At the direction of the Chief Justice, sessions of the Supreme Court may be held outside Olympia at other locations in the state of Washington. The times and places of such sessions will be designated by the court.

Hearings en banc, rehearings, and special hearings may be set by the court in its discretion at such other times as the court may order.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 6

TWO DEPARTMENTS--ASSIGNMENT OF JUSTICES


The court may be divided into two departments for the hearing of motions and such other matters as the Chief Justice may designate. The Chief Justice shall assign four of the associate Justices to each department, and such assignment may be changed by him the Chief Justice from time to time, provided that the associate Justices shall be competent to sit in either department and may interchange with one another by agreement among themselves, or, if no such agreement is made, as ordered by the Chief Justice.

The Chief Justice shall sit in both departments and shall preside when so sitting.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

RULE 8

CHIEF JUSTICE, CHOICE OF--DUTY


The Justice having the shortest term to serve, not holding his office by appointment or election to fill a vacancy, shall be the Chief Justice, and shall preside at all sessions of the Supreme Court, and in case there shall be two Justices having in like manner the same short term, the other Justices of the Supreme Court shall determine which of them shall be Chief Justice.

A. Quadrennial Nomination and Election of Chief Justice

Commencing in November 1996 and continuing every four years thereafter, the Supreme Court shall select from among its membership a Chief Justice who will serve a four-year term. The term of the person so elected shall commence on the second Monday in January next succeeding the election. All members of the court at the time of the election, except those Justices who it is known will not be members of the court on the second Monday in January next, shall be eligible for election to the position, including the incumbent Chief Justice and Justices who have less than four years to serve on their current term of office.

Nominations for the position of Chief Justice shall be made orally at the meeting of the court at which the election is conducted. All Justices on the court at the time the election is held are eligible to vote. The vote shall be by secret ballot and the Justice receiving a majority of the votes of the full court shall be deemed elected to the position.

B. Resignation of a Chief Justice and Election of a Successor

The Chief Justice may resign at any time from that position without resigning from the court. In that event or in the event of the death, resignation, or removal of the Chief Justice, the remaining Justices of the court shall elect a successor to the position of Chief Justice in the same manner as the quadrennial election of a Chief Justice. The Justice so elected shall serve the remainder of the term of the Chief Justice that Justice replaces.

The Chief Justice shall be the executive officer of the court preside at all sessions of the Supreme Court and shall do and perform those duties required of him the Chief Justice by the constitution and laws of the State of Washington and the rules of this court, and shall serve as coordinator between the two departments.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 9

ACTING ASSOCIATE CHIEF JUSTICE


The court shall elect from time to time an Acting Chief Justice. The Acting Chief Justice may be any member of the court not holding his office by appointment or election to fill a vacancy. The position of Associate Chief Justice shall be held by the senior Justice of the court, other than the Chief Justice. In the event the senior Justice declines to serve in that position, the next most senior Justice shall be designated as Associate Chief Justice. The Acting Associate Chief Justice shall perform the duties, and exercise the powers of the Chief Justice during the absence or inability of the Chief Justice to act.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 10

RIGHT OF SENIOR JUSTICE TO ACT


In the absence or inability of both the Chief Justice and the Acting Associate Chief Justice, the senior Justice present at the capital shall act as Chief Justice.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 11

SENIORITY OF JUSTICES


Seniority among the Justices of the Supreme Court shall be determined by length of continuous service on the court.


RULE 12

ACTS IN CONTEMPT OF COURT


It shall be contempt of this court for anyone to divulge to others than the Justices and employees of this court working upon an opinion, the results of any appeal proceeding or the identity of the assignment Justice prior to the time the opinion is filed by the Clerk of the Supreme Court.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

RULE 13

MINUTES--COURT BUSINESS MEETINGS


The court will cause to be recorded in a book kept for that purpose minutes of all business meetings. The Justice junior in length of service shall act as secretary.

Minutes relating to case conferencing are confidential. Minutes relating to the general business of the court may be made public at the discretion of the court.


RULE 15

COMMISSIONER OF THE SUPREME COURT


(a) Appointment. To promote the effective administration of justice, the Justices of the Supreme Court will appoint a commissioner of the court. The salary of the commissioner will be fixed by the court. The commissioner may be removed at the pleasure of the Supreme Court.

(b) Deciding Motions. The commissioner will hear and decide those motions authorized by the Rules of Appellate Procedure and any additional motions that may be assigned to the commissioner by the court. The commissioner will determine whether to accept cases certified by the Court of Appeals to the Supreme Court.

(c) Screening for the Court. The commissioner will screen petitions for review and direct appeals to the Supreme Court and recommend whether Supreme Court review should be granted. Except for motions to modify a ruling of the commissioner, the commissioner will also screen motions which are to be decided by the Justices and recommend to the court an appropriate disposition for each motion. When necessary, screening memoranda will contain an evaluation sufficiently comprehensive to assist each Justice in independently deciding the matter being screened.

(d) Assisting Chief Justice. The commissioner will assist the Chief Justice in determining whether cases certified by the Court of Appeals to the Supreme Court should be accepted for review. The commissioner will also assist the Chief Justice with motions to file amicus curiae briefs.

(e) Judicial Law Clerks. The commissioner will assist the Justices of the Supreme Court with the selection of judicial law clerks, as desired by each Justice. The commissioner will present an annual orientation for the new law clerks. The commissioner will prepare and periodically revise a manual for use by the judicial law clerks.

(f) Improving Administration of Justice. The commissioner will make recommendations to the court regarding procedures. The commissioner will serve on court committees when appointed thereto by the Chief Justice.

(g) Central Staff. The commissioner will employ and train staff attorneys and other personnel to assist the commissioner in carrying out the duties of the commissioner's office. These employees shall serve at the pleasure of the commissioner. To the extent appropriations permit, the court will authorize the commissioner to employ sufficient staff to assist the court in expeditiously fulfilling its duties to promptly fulfill the duties of the office.

(h) Duties To Benefit Full Court. All duties performed by the commissioner are for the benefit of the court as a whole. The court may alter or add to the duties of the commissioner. In the performance of these duties the commissioner is responsible to the Chief Justice as executive officer of the court under SAR 8.

(i) Qualifications. The commissioner must be a graduate of an accredited law school and a member in good standing of the Washington State Bar Association and, prior to appointment, have at least 5 years of experience in the practice of law or in a judicially related field.

(j) Oath of Office. Before entering upon the duties of the office, the commissioner will take and file an oath of office in the form prescribed by order of the Supreme Court. The oath will include a requirement that the commissioner adhere to the Code of Judicial Conduct.

(k) Prohibition From Practice of Law. The commissioner and the attorneys employed by the commissioner is are prohibited, during term of office, from acting as an attorney or having a partner who acts as an attorney.

(l) Deputies. The commissioner may have one or more deputies, to be appointed by the commissioner in writing, to serve during the commissioner's pleasure. The deputies shall have the power to perform any act of duty relating to the commissioner's office that the commissioner has, and the commissioner is responsible for their conduct.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 16

CLERK OF THE SUPREME COURT--APPOINTMENT--

POWERS--DUTIES


(1a) Appointment. The Justices of the Supreme Court shall appoint a clerk of that court, who may be removed at their pleasure. The clerk shall receive such compensation by salary only as shall be fixed by the court.

(2b) Deputies. The Clerk of the Supreme may have one or more deputies, to be appointed by him the clerk in writing, to serve during his the clerk's pleasure. The deputies shall have the power to perform any act or duty relating to the clerk's office that their principal has, and their principal is responsible for their conduct.

(3c) Prohibited Activity. The clerk and his deputies are prohibited, during their continuance in office, from acting or having a partner who acts as an attorney.

(4d) Oath. Before entering upon the duties of his office, the clerk and each deputy clerk shall take an oath of office, and give bond in such a sum, with surety and condition, as the court shall require, which oath and bond shall be deposited with the Secretary of State.

(5e) Hours. The clerk shall keep his the clerk's office at the seat of government open at such hours as the court shall require, and shall keep such records and books as are prescribed by the court.

(6f) Powers and Duties. The Clerk of the Supreme Court is given the power to take and certify the proof and acknowledgment of a conveyance of real property or any other written instrument authorized or required to be proved or acknowledged, and to administer oaths in every case when authorized by law. and shall have such other powers as are authorized by the court or by statute.

It is the duty of the clerk--

(a1) To keep the seal of the court and affix it in all cases where he the clerk is required by law;

(b2) To record the proceedings of the court;

(c3) To keep the records, files and other books and papers appertaining to the court; which may be kept electronically/digitally when authorized by the court.

(d4) To file all papers delivered to him for that purpose, in any action or proceeding in that court, except when by the rules of court he is directed otherwise to refuse to file papers under the conditions set out by the rules.

(7) The Clerk of the Supreme Court shall keep the following books and records:

(1) Journal in which he shall record

(a) all judgments;

(b) orders of the court except those of a temporary nature which do not affect the final result of the case;

(c) original bonds;

(d) citations to the Supreme Court of the United States;

(e) mandates from the Supreme Court of the United States and certified copies of its orders.

(2) Appearance docket in which he shall show

(a) the substantial title of the case, the number in the superior court, the trial judge, the county whence comes the appeal, and names of attorneys;

(b) appearance fees and money paid into the clerk's trust fund;

(c) the date of filing each paper and part of the record;

(d) all minute entries directed by the court or Chief Justice;

(e) the date for hearing on the calendar and any continuance;

(f) the disposition of motions and petitions;

(g) the entry of judgment and where recorded;

(h) date mandated;

(i) citation of opinion in Washington Reports.

(3) General index of cases;

(4) Motion docket, which shall show the number and title of the case, the attorneys, the nature of the motion and sufficient space for the Chief Justice to show the disposition;

(5) Cash book, in which shall be shown all moneys received and disbursed by the clerk;

(6) Trust fund journal, in which shall be shown all receipts and disbursements in clerk's trust fund;

(7) Appropriation expenditure ledger, showing all expenditures from appropriations for salaries and operations;

(8) Withholding tax ledger, showing withholdings from salaries of each employee and officer of the court for federal income taxes and disbursement of the same;

(9) Courtroom docket, which shall show the title and number of each case argued, the department, names of the judges sitting, the attorneys arguing each side of the case, and the time used by each, together with the nature of the matter heard. The bailiff, at the direction of the clerk, will prepare and make entries;

(10) Clerk's docket of admission and discipline of attorneys, which shall show all papers covering the admission and discipline of attorneys.

(8g) The clerk shall do and perform any and all other duties as may be prescribed by the Supreme Court.

(9) In all cases that are remanded for a new trial or for further proceedings, at the time the mandate goes down, the clerk, at the expense of appellant, shall return the statement of facts and the exhibits to the clerk of the superior court.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.


RULE 18

STATE LAW LIBRARY


The following rules shall govern the operation of the State Law Library:

(a) State Law Library--General. The primary function of the State Law Library shall be to maintain a legal research library at the state capital for the use of all state officials and employees, equipped to serve them effectively with legal research materials required by them in connection with their official duties. Specifically included, but not limited to, are members, staff, and employees of the:

(1) Supreme Court

(2) Office of Administrator for the Courts

(3) Attorney General

(4) Legislature

(5) Governor's Office

(6) Commissions, agencies, and boards of all branches of state government.

(b) Public Use. In addition to the groups provided in section (a), the library shall be open to the public each day of the week from 8 a.m. to 5 p.m. except Saturdays, Sundays, and those legal holidays provided in RCW 1.16.050.

(c) After-Hours Use. In addition to the hours for public use as provided in section (b), and when required by them in connection with their official duties, those persons provided for in section (a) may, upon application to the law librarian, have access to the library collection during evenings, weekends, and holidays.

(d) State Law Librarian--Appointments. The court will appoint a law librarian who may be removed at its pleasure.

(e) State Law Librarian--Duties. The state law librarian shall:

(1) Maintain as complete and up-to-date law library as possible;

(2) Administer the library in accordance with the best professional standards and protect library property from loss or damage;

(3) Do legal research for any Supreme Court Justice when he or she requests it;

(4) Establish, develop, and maintain legal research libraries for each division of the Court of Appeals;

(5) Upon request, advise and consult with boards of trustees, or other administrative bodies, of county law libraries in the development, improvement, arrangement, and maintenance of county law library collections and services;

(6) Promote improved statewide law library service to all citizens of the state of Washington by lending of legal materials and providing reference assistance in any manner not inconsistent with the primary responsibility of the State Law Library as set forth in section (a);

(7) Make distribution of legislative journals, session laws, Washington Reports, and Washington Appellate Reports as required by statute;

(8) Perform any and all other duties as may be prescribed by the Supreme Court or by statute.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

RULE 21

JUSTICES PRO TEMPORE


(a) Selection and Use. When a member of the court is disqualified or unable to function on a case for good cause, a majority of the regular remaining members of the court may, by written order, designate a justice pro tempore to sit with the court en banc to hear and determine the case. The designating order shall set forth the period of service. In no event shall more than two justices pro tempore sit with the court en banc. No justice pro tempore shall be appointed who has less than 5 years' service as a judge of a court of record.

(a) Generally. If one or more justices recuse on a case which reduces the court to an even number, a pro tempore justice shall be appointed by the Chief Justice when available, unless a majority of the court directs otherwise. In all other cases of recusal, the Chief Justice shall notify the other justices, in writing, of the recusal as soon as the fact of recusal becomes known to the Chief Justice, and the majority shall direct whether a pro tempore justice should be appointed when available.

(b) Qualifications. If a pro tempore justice is to be selected, the proposed selection shall be made in the manner set forth hereafter by the Chief Justice, or at the Chief Justice's option by the Clerk of the Court, from a list of active and retired court of appeals judges. The list shall be approved by a majority of the Court. All retired appellate judges will be included on the list, except those who are (1) incapacitated, (2) are litigants whose cases have been in this court or will probably come to this court, (3) are over 75 years of age (the mandatory judicial retirement age in this state), (4) are in a law firm or of counsel to a law firm, or (5) who prefer not to be on the pro tem list.

(c). Selection. When a pro tempore justice is to serve in a case, the names on the pro tempore list will be put on separate slips and drawn from a container by the Clerk to ensure that selection is random. A pro tempore justice so selected who agrees to serve will serve on all the cases, where a pro tempore justice is needed, on a given court day. A separate drawing will be held for each day.

(d) Oath, A justice pro tempore shall take the oath of office required by article 4, section 28 of the state constitution. The oath of office, together with the original order of appointment, shall be filed forthwith in the office of the Secretary of State. A copy of the oath and order of appointment shall be filed in the office of the Clerk of the Supreme Court.

(ce) Duties of the Justice Pro Tempore.

(1) A justice, while serving pro tempore, shall have the same power and authority as a Justice of the Supreme Court, and he the pro tempore justice shall perform such duties as the court may direct. Justices pro tempore shall author majority opinions at the discretion of the Chief Justice.

(2) A justice pro tempore will function promptly on opinions and motions for reconsideration on which he the pro tempore justice is qualified to function. When such opinions are received by him the pro tempore justice after the period of his appointment has expired, his the original period of office as a justice pro tempore shall be deemed to exist in order for him to function and to accomplish the ministerial act of filing the opinion.

(df) Publication of Opinions.

(1) Dissents and Concurrences. Dissents or concurrences written by a justice pro tempore shall be published in regular form, except that a reference symbol shall be placed after his the name, directing attention to a footnote which shall read:

"Justice _______________ is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. 4, section 2 (a) (amend. 38)."

(2) Opinions signed by a justice pro tempore shall be published in the regular form, except that the name of the justice pro tempore shall follow the names of the Justices of the Supreme Court signing such opinion, with the designation "Pro Tem." after his the signature.

(3) There shall appear, in each bound volume of the Washington Reports, on the page following the page listing the Justices of the Supreme Court, the names and terms of office of the justices pro tempore who served during the period covered by the published volume.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

RULE 22

REPORTING OF CRIMINAL CASES


On any criminal appeal taken to the Supreme Court from a determination made by a court of lesser jurisdiction, the court clerk shall, within 5 court days of the filing of a final decision on the merits in the matter, forward to the Washington State Patrol Section on Identification on a form approved by the Administrator for the Courts its disposition of the particular case. In the event that original or collateral proceedings are brought in the Supreme Court and the result of those original or collateral proceedings changes, or otherwise makes inaccurate, the information forwarded on the original disposition report, the court clerk shall prepare and forward to the Section a supplemental disposition report on a form approved by the Administrator for the Courts indicating thereon the information necessary to correct the current status of the disposition of charges against the subject maintained in the records of the Section.


[Reserved. See RCW 10.97.045.]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.


RULE 15.2

DETERMINATION OF INDIGENCY AND RIGHTS

OF INDIGENT PARTY


(a) Motion for Order of Indigency. A party seeking review partially or wholly at public expense must move in the trial court for an order of indigency. The motion must be supported by an affidavit setting forth the moving party's total assets; the expenses and liabilities of the party; a statement of the amount, if any, the party can contribute toward the expense of review; a statement of the expenses the party wants waived or provided at public expense; a brief statement of the nature of the case and the issues sought to be reviewed; a designation of those parts of the record the party thinks are necessary for review; and a statement that review is sought in good faith. If the case is a civil case which does not involve a termination of parental rights or a disposition in a juvenile offense proceeding, the party must also demonstrate in the motion or the supporting affidavit that the issues the party wants reviewed have probable merit and that the party has a constitutional right to review partially or wholly at public expense.

(b) Action by Superior Court. The superior court shall decide the motion for an order of indigency, after a hearing if the circumstances warrant, as follows:

(1) Denial Generally. The superior court shall deny the motion if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.

(2) Cases Involving Crimes, Parental Rights, Juvenile Offenses, Involuntary Commitments. In a criminal case, a case involving a termination of parental rights, or a case involving a disposition in a juvenile offense proceeding, or an involuntary commitment, the superior court shall grant the motion and enter an order of indigency if the party seeking public funds is unable by reason of poverty to pay for all or some of the expenses of appellate review.

(3) Other Civil Cases. If the case is a civil case which does not involve a termination of parental rights, or a disposition in a juvenile offense proceeding or an involuntary commitment and if the party is unable by reason of poverty to pay for all of the expenses of review, the superior court shall enter findings of indigency. The superior court shall determine in those findings the portion of the record necessary for review and the amount, if any, the party is able to contribute toward the expense of review. The findings shall conclude with an order to the clerk of the superior court to promptly transmit to the Supreme Court, without charge to the moving party, the findings of indigency, the motion for an order of indigency, the affidavit in support of the motion, and all other papers submitted in support of or in opposition to the motion. The superior court clerk shall promptly transmit to the Supreme Court the papers designated in the findings of indigency.

(c) Action by Supreme Court. If findings of indigency and other papers relating to the motion for an order of indigency are transmitted to the Supreme Court, the Supreme Court will determine whether an order of indigency in that case should be entered by the superior court. The determination will be made by a department of the Supreme Court on a regular motion day without oral argument and based only on the papers transmitted to the Supreme Court by the superior court clerk, unless the Supreme Court directs otherwise. If the Supreme Court determines that the party is seeking review in good faith, that an issue of probable merit is presented, and that the party is entitled under the state or federal constitution to review partially or wholly at public expense, the Supreme Court will enter an order directing the trial court to enter an order of indigency. In all other cases, the Supreme Court will enter an order denying the party's motion for an order of indigency. The clerk of the appellate court will transmit a copy of the order to the clerk of the superior court and notify all parties of the decision of the Supreme Court.

(d) Order of Indigency. An order of indigency shall designate the items of expense which are to be paid with public funds and, where appropriate, the items of expense to be paid by a party or the amount which the party must contribute toward the expense of review. The order shall designate the extent to which public funds are to be used for payment of the expense of the record on review, limited to those parts of the record reasonably necessary to review issues argued in good faith. The order of indigency shall appoint counsel if the party is entitled to counsel on review at public expense. The order of indigency must be transmitted to the appellate court as a part of the record on review.

(e) Continued Indigency Presumed. A party and counsel for the party who has been granted an order of indigency must bring to the attention of the trial court any significant improvement during review in the financial condition of the party. The appellate court will give a party the benefits of an order of indigency throughout the review unless the trial court finds the party's financial condition has improved to the extent that the party is no longer indigent.

(f) Appointment and Withdrawal of Counsel in Trial Court. The trial court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review, except withdrawal as provided in section (h). If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.

(g) Review of Order of Indigency. Only a party in a criminal case, in a case involving termination of parental rights, or in a case determining whether a person is a juvenile offender may seek review of an order of indigency or an order denying an order of indigency. Review must be sought by a motion for discretionary review.

(h) Withdrawal of Counsel in Appellate Court. If counsel can find no basis for a good faith argument on review, counsel should file a motion in the appellate court to withdraw as counsel for the indigent as provided in rule 18.3(a).


References

Form 12, Order of Indigency; Rule 2.3, Decisions of The Trial Court Which May Be Reviewed by Discretionary Review.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office