WSR 09-23-033

RULES OF COURT

STATE SUPREME COURT


[ November 5, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 2.4, RAP 4.2, RAP 4.3, RAP 4.4, RAP 9.5, RAP 9.6, RAP 9.7, RAP 9.8, RAP 10.3, RAP 10.4, RAP 12.4, RAP 12.7, RAP 12.9, RAP 14.3, RAP 15.1, RAP 16.7, RAP 16.20, RAP 17.4, RAP 17.5, RAP 18.1, RAP 18.6, RAP 18.14, RAP FORM 15A AND RAP FORM 19 )

) ) ) ) ) ) ) )

ORDER

NO. 25700-A-929


The Court of Appeals having recommended the adoption of the proposed amendments to RAP 2.4, RAP 4.2, RAP 4.3, RAP 4.4, RAP 9.5, RAP 9.6, RAP 9.7, RAP 9.8, RAP 10.3, RAP 10.4, RAP 12.4, RAP 12.7, RAP 12.9, RAP 14.3, RAP 15.1, RAP 16.7, RAP 16.20, RAP 17.4, RAP 17.5, RAP 18.1, RAP 18.6, RAP 18.14, RAP FORM 15A AND RAP FORM 19, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January, 2010.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2010. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 5th day of November 2009.
For the Court
Gerry L. Alexander
CHIEF JUSTICE


GR 9 Cover Sheet


Suggested Amendment to RAP 2.4

SCOPE OF REVIEW OF A TRIAL COURT DECISION





Purpose: The proposal corrects two cross-references to a superior court criminal rule.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 2.4

SCOPE OF REVIEW OF A TRIAL COURT DECISION



(a) Generally. [No change.]

(b) Order or Ruling Not Designated in Notice. [No change.]

(c) Final Judgment Not Designated in Notice. Except as provided in rule 2.4(b), the appellate court will review a final judgment not designated in the notice only if the notice designates an order deciding a timely posttrial motion based on (1) CR 50(b) (judgment as a matter of law), (2) CR 52(b) (amendment of findings), (3) CR 59 (reconsideration, new trial, and amendment of judgments), (4) CrR 7.4 (arrest of judgment), or (5) CrR 7.6 7.5 (new trial).

(d) Order Deciding Alternative Post-Trial Motions in Civil Case. [No change.]

(e) Order Deciding Alternative Post-Trial Motions in Criminal Case. [No change.]

(f) Decisions on Certain Motions Not Designated in Notice. An appeal from a final judgment brings up for review the ruling of the trial court on an order deciding a timely motion based on (1) CR 50(b) (judgment as a matter of law), (2) CR 52(b) (amendment of findings), (3) CR 59 (reconsideration, new trial, and amendment of judgments), (4) CrR 7.4 (arrest of judgment), or (5) CrR 7.6 7.5 (new trial).

(g) Award of Attorney Fees. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 4.2

DIRECT REVIEW OF SUPERIOR COURT DECISION

BY SUPREME COURT





Purpose: The proposal amends section (b) to state that a statement of grounds for direct review should be filed only if the notice of appeal or notice for discretionary review is directed to the Supreme Court. The change is intended to clarify that: (1) a statement of grounds is required only when direct review is being sought in the Supreme Court; and (2) the statement of grounds for direct review is not a pleading that may be used to request transfer of review from the Court of Appeals to the Supreme Court.

The rule's sections (c) and (d) are amended to specify that both the statement of grounds for direct review and the answer to that statement need to meet the formatting requirements for appellate briefs found in RAP 10.4(a).

The technical changes in this proposal reflect current appellate practice.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 4.2

DIRECT REVIEW OF SUPERIOR COURT DECISION

BY SUPREME COURT



(a) Type of Cases Reviewed Directly. [No change.]

(b) Service and Filing of Statement of Grounds for Direct Review. Procedure for Seeking Direct Review. A party seeking direct review of a superior court decision in the Supreme Court must file a notice of appeal or notice for discretionary review directed to the Supreme Court. Within within 15 days after filing the notice of appeal or notice for discretionary review, the party seeking direct review must serve on all other parties and file in the Supreme Court a statement of grounds for direct review in the form provided in section (c).

(c) Form of Statement of Grounds for Direct Review. The statement should be captioned "Statement of Grounds for Direct Review," contain the title of the case as provided in rule 3.4, conform to the formatting requirements of rule 10.4(a), and contain under appropriate headings and in the order here indicated:

(1) Nature of the Case and Decision. A short statement of the substance of the case below and the basis for the superior court decision;

(2) Issues Presented for Review. A statement of each issue the party intends to present for review; and

(3) Grounds for Direct Review. The grounds upon which the party contends direct review should be granted.

The statement of grounds for direct review should not exceed 15 pages, exclusive of appendices and the title sheet.

(d) Answer to Statement of Grounds for Direct Review. A respondent may file an answer to the statement of grounds for direct review. In an appeal, the answer should be filed within 14 days after service of the statement on respondent. In a discretionary review, the answer should be filed with any response to the motion for discretionary review. The answer should conform to the formatting requirements of rule 10.4(a). The answer should not exceed 15 pages, exclusive of appendices and the title sheet.

(e) Effect of Denial of Direct Review. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 4.3

DIRECT REVIEW OF DECISIONS OF

COURTS OF LIMITED JURISDICTION





Purpose: The proposal amends sections (c) and (d) to specify that both the statement of grounds for direct review and the answer to that statement need to meet the formatting requirements for appellate briefs that are found in RAP 10.4(a).

These technical changes reflect current appellate practice.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 4.3

DIRECT REVIEW OF DECISIONS OF

COURTS OF LIMITED JURISDICTION



(a) Prerequisites for Direct Review of Decisions of Courts of Limited Jurisdiction. [No change.]

(b) Service and Filing of Statement of Grounds for Direct Review. [No change.]

(c) Form of Statement of Grounds for Direct Review. The statement should be captioned "Statement of Grounds for Direct Review," contain the title of the case as provided in rule 3.4, conform to the formatting requirements of rule 10.4(a), and contain under appropriate headings and in the order here indicated:

(1) Nature of Case and Decision. [No change.]

(2) Issues Presented for Review. [No change.]

(3) Grounds for Direct Review. [No change.]

(4) Appendix. [No change.]

(d) Answer to Statement of Grounds for Direct Review. A respondent may file an answer to the statement of grounds for direct review. The answer should be filed within 14 days after service of the statement on respondent. The answer should conform to the formatting requirements of rule 10.4(a). The answer should not exceed 15 pages, exclusive of appendices and the title sheet.

(e) Procedure. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 4.4

TRANSFER OF CASES BY SUPREME COURT





Purpose: The proposal directs parties to perfect the record and file all briefs before filing a motion to transfer a case from the Court of Appeals to the Supreme Court. The proposal reflects current appellate practice.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 4.4

TRANSFER OF CASES BY SUPREME COURT



The Supreme Court, to promote the orderly administration of justice may, on its own initiative, upon certification by the Court of Appeals, or on motion of a party, transfer a case from the Court of Appeals to the Supreme Court or from one division to another division of the Court of Appeals. The Court of Appeals, on its own initiative or on motion of a party, may transfer a case from one division to another division pursuant to CAR 21(a). A party should not file a motion to transfer until the record has been perfected and all briefs have been filed in the Court of Appeals.


GR 9 Cover Sheet


Suggested Amendment to RAP 9.5

FILING AND SERVICE OF REPORT OF PROCEEDINGS -- OBJECTIONS





Purpose: The proposal eliminates a conflict between sections (a) and (b) by clarifying that it is the court reporter, not a party, who is required to file the notice of filing of the report of proceedings. The proposal also changes in several places the phrase "court reporter, or video transcriber, or authorized person" so that it more simply refers to "court reporter or authorized person." This change merely recognizes that courts have been moving away from the use of video transcribers and that video transcribers are otherwise covered with the term "authorized person."


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 9.5

FILING AND SERVICE OF REPORT OF PROCEEDINGS -- OBJECTIONS



(a) Generally. The party seeking review must file an agreed or narrative report of proceedings with the clerk of the trial court within 60 days after the statement of arrangements is filed. The court reporter or person authorized to prepare the verbatim report of proceedings must file it within 60 days after the statement of arrangements is filed and all named court reports are served. If the proceeding being reviewed was recorded on videotape, the transcript must be filed by the transcriber with the clerk of the trial court within 60 days after the statement of arrangements is filed and all named court reporters are served. The party who caused a report of proceedings to be filed should at the time of filing the report of proceedings serve notice that the report of proceedings has been filed and file proof of the service on all parties.

(1) [No change.]

(2) [No change.]

(b) Filing and Service of Verbatim Report of Proceedings. If a verbatim report of proceedings cannot be completed within 60 days after the statement of arrangement is filed and served, the court reporter or video transcriber or authorized person shall, no later than 10 days before the report of proceedings is due to be filed, submit an affidavit to the party who ordered the report of proceedings stating the reasons for the delay. The party who requested the verbatim report of proceedings should move for an extension of time from the appellate court. The clerk will notify the parties of the action taken on the motion. When the court reporter or video transcriber or authorized person files the verbatim report of proceedings, a copy shall be provided to the party who arranged for transcription and either the reporter or video transcriber or authorized person shall serve and file notice of the filing on all other parties and the appellate court. The notice of filing served on the appellate court shall include a declaration that (1) the transcript was computer generated and an ASCII diskette or compact disc was filed or (2) the transcript was not computer generated. Failure to timely file the verbatim report of proceedings and notice of service may subject the court reporter or video transcriber or authorized person to sanctions as provided in rule 18.9.

(c) Objections to Report of Proceedings. A party may serve and file objections to, and propose amendments to, a narrative report of proceedings or a verbatim report of proceedings within 10 days after receipt of the report of proceedings or receipt of the notice of filing of the report of proceedings. If objections or amendments to the report of proceedings are served and filed, any objections or proposed amendments must be heard by the trial court judge before whom the proceedings were held for settlement and approval, except objections to the form of a report of proceedings, which shall be heard by motion in the appellate court. The court may direct a party or a reporter or typist or authorized person transcribing videotape transcriber to pay for the expense of any modifications of the proposed report of proceedings. The motion procedure of the court deciding any objections shall be used in settling the report of proceedings.

(d) Substitute Judge May Settle Report of Proceedings. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 9.6

DESIGNATION OF CLERK'S PAPERS AND EXHIBITS





Purpose: The proposal specifies that a copy of the designation of clerk's papers needs to be filed with the appellate court clerk, while the original document needs to be filed with the trial court clerk. The proposal also clarifies that the clerk's papers need to include either the notice of appeal or the notice for discretionary review.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 9.6

DESIGNATION OF CLERK'S PAPERS AND EXHIBITS



(a) Generally. The party seeking review should, within 30 days after the notice of appeal is filed or discretionary review is granted, serve on all other parties and file with the trial court clerk a designation of those clerk's papers and exhibits the party wants the trial court clerk to transmit to the appellate court. A copy of the designation shall also be filed with the appellate court clerk. Any party may supplement the designation of clerk's papers and exhibits prior to or with the filing of the party's last brief. Thereafter, a party may supplement the designation only by order of the appellate court, upon motion. Each party is encouraged to designate only clerk's papers and exhibits needed to review the issues presented to the appellate court.

(b) Designation and contents.

(1) The clerk's papers shall include, at a minimum:

(A) the notice of appeal or the notice for discretionary review;

(B) the indictment, information, or complaint in a criminal case;

(C) any written order or ruling not attached to the notice of appeal, of which a party seeks review;

(D) the final pretrial order, or the final complaint and answer or other pleadings setting out the issues to be tried if the final pretrial order does not set out those issues;

(c) Format. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 9.7

PREPARING CLERK'S PAPERS AND

EXHIBITS FOR APPELLATE COURT





Purpose: The proposal allows trial court clerks to transmit clerk's papers electronically, if authorized by the appellate court. The proposal also requires trial court clerks to file the clerk's papers within 14 days of receiving the party's payment.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 9.7

PREPARING CLERK'S PAPERS AND

EXHIBITS FOR APPELLATE COURT



(a) Clerk's Papers. The clerk of the trial court shall make copies at cost, not to exceed 50 cents a page, of those portions of the clerk's papers designated by the parties and prepare them for transmission to the appellate court. The clerk shall assemble the copies and number each page of the clerk's papers in chronological order of filing, and bind in volumes of no more than 200 pages, or, as authorized by the appellate court, assemble and transmit the numbered clerk's papers to the appellate court in electronic format. The clerk shall prepare a cover sheet for the papers with the title "Clerk's Papers" and prepare an alphabetical index to the papers. The clerk shall promptly send a copy of the index to each party. The reproduction costs must be paid to the trial court clerk within 14 days of receipt of the index. Failure to do so may result in sanctions under rule 18.9. Upon receipt of Within 14 days of receiving payment, the clerk shall forward the clerk's papers to the appellate court.

(b) Exhibits. [No change.]

(c) Certified record of administrative adjudicative orders. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 9.8

TRANSMITTING RECORD ON REVIEW





Purpose: The proposal adds "hazardous items" to the list of exhibits that should not be forwarded to the appellate court without specific direction from that court.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 9.8

TRANSMITTING RECORD ON REVIEW



(a) Duty of Trial Court Clerk. [No change.]

(b) Cumbersome Exhibits. The clerk of the trial court shall transmit to the appellate court exhibits which are difficult or unusually expensive to transmit only if the appellate court directs or if a party makes arrangements with the clerk to transmit the exhibits at the expense of the party requesting the transfer of the exhibits. No weapons, controlled substances, hazardous items, or currency shall be forwarded unless directed by the appellate court.

(c) Temporary Transmittal to Another Court. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 10.3

CONTENT OF BRIEF





Purpose: The proposal specifies that many of the existing formatting requirements for an appellant/petitioner's opening brief also apply to the reply brief.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 10.3

CONTENT OF BRIEF



(a) Brief of Appellant or Petitioner. The brief of the appellant or petitioner should contain under appropriate headings and in the order here indicated:

(1) Title Page. A title page, which is the cover.

(2) Tables. A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where cited.

(3) Introduction. A concise introduction. This section is optional. The introduction need not contain citations to the record of authority.

(4) Assignments of Error. A separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error.

(5) Statement of the Case. A fair statement of the facts and procedure relevant to the issues presented for review, without argument. Reference to the record must be included for each factual statement.

(6) Argument. The argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record. The argument may be preceded by a summary. The court ordinarily encourages a concise statement of the standard of review as to each issue.

(7) Conclusion. A short conclusion stating the precise relief sought.

(8) Appendix. An appendix to the brief if deemed appropriate by the party submitting the brief. An appendix may not include materials not contained in the record on review without permission from the appellate court, except as provided in rule 10.4(c).

(b) Brief of Respondent. [No change.]

(c) Reply Brief. A reply brief should conform with subsections (1), (2), (6), (7), and (8) of section (a) and be limited to a response to the issues in the brief to which the reply brief is directed.

(d) [Reserved; see rule 10.10.] [No change.]

(e) Amicus Curiae Brief. [No change.]

(f) Answer to Brief of Amicus Curiae. [No change.]

(g) Special Provision for Assignments of Error. [No change.]

(h) Assignments of Error on Review of Certain Administrative Orders. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 10.4

PREPARATION AND FILING OF BRIEF BY PARTY





Purpose: Currently, section (d) of RAP 10.4 addresses motions submitted in briefs. The proposal adds a sentence describing how to submit answers to these motions. The same sentence is also proposed for addition to the other rule that directly addresses motions in briefs, RAP 17.4(d).


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 10.4

PREPARATION AND FILING OF BRIEF BY PARTY



(a) Typing or Printing Brief. [No change.]

(b) Length of Brief. [No change.]

(c) Text of Statute, Rule, Jury Instruction, or the Like. [No change.]

(d) Motion in Brief. A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits. The answer to a motion within a brief may be made within the brief of the answering party in the time allowed for filing the brief.

(e) Reference to Party. [No change.]

(f) Reference to Record. [No change.]

(g) Citation Format. [No change.]

(h) Unpublished opinions. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 12.4

MOTION FOR RECONSIDERATION OF

DECISION TERMINATING REVIEW





(C) Purpose: The proposal provides that an order denying a petition for review is not subject to a motion for reconsideration. The proposal reflects the current appellate practice.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 12.4

MOTION FOR RECONSIDERATION OF

DECISION TERMINATING REVIEW



(a) Generally. A party may file a motion for reconsideration only of a decision by the judges (1) terminating review, or (2) granting or denying a personal restraint petition on the merits. The motion should be in the form and be served and filed as provided in rules 17.3(a), 17.4 (a) and (g), and 18.5, except as otherwise provided in this rule. A party may not file a motion for reconsideration of an order refusing to modify a ruling by the commissioner or clerk, nor may a party file a motion for reconsideration of a Supreme Court order denying a petition for review.

(b) Time. [No change.]

(c) Content. [No change.]

(d) Answer and Reply. [No change.]

(e) Length. [No change.]

(f) No Oral Argument. [No change.]

(g) Grant of Motion. [No change.]

(h) Only One Motion Permitted. [No change.]

(i) Amicus Curiae Memoranda. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 12.7

FINALITY OF DECISION





Purpose: Currently, RAP 12.7(c) specifies that the appellate court may rule on fees and costs following the issuance of a mandate. The proposal expands the rule so that these rulings are also allowed after the issuance of a certificate of finality.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 12.7

FINALITY OF DECISION



(a) Court of Appeals. [No change.]

(b) Supreme Court. [No change.]

(c) Special Rule for Costs and Attorney Fees and Expenses. The appellate court retains the power after the issuance of the mandate or the certificate of finality to act on questions of costs as provided in Title 14 and on questions of attorney fees and expenses as provided in rule 18.1.

(d) Special Rule for Law of the Case. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 12.9

RECALL OF MANDATE





Purpose: The proposal expands the rule on recalling mandates (RAP 12.9) to similarly allow for recalling certificates of finality. The proposal reflects current appellate practice.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 12.9

RECALL OF MANDATE OR CERTIFICATE OF FINALITY



(a) To Require Compliance with Decision. [No change.]

(b) To Correct Mistake or Remedy Fraud. The appellate court may recall a mandate or certificate of finality issued by it to correct an inadvertent mistake or to modify a decision obtained by the fraud of a party or counsel in the appellate court.

(c) Time for Motion. The motion to recall the mandate or certificate of finality must be made within a reasonable time.


GR 9 Cover Sheet


Suggested Amendment to RAP 14.3

EXPENSES ALLOWED AS COSTS





Purpose: The proposal changes the "reference" that accompanies RAP 14.3 to more specifically identify the applicable statute on attorney fees. No change is proposed for the rule itself.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 14.3

EXPENSES ALLOWED AS COSTS



[No change is proposed for the text of the rule, only for the references that appear after the rule.]

(a) Generally. [No change.]

(b) Special Rule for Cost of Preparing Brief or Other Original Document. [No change.]

(c) Special Rule for Indigent Review. [No change.]


References


Rule 18.1, Attorney Fees and Expenses; RCW 4.84, Costs RCW 4.84.080(2), Schedule of Attorneys' Fees.


GR 9 Cover Sheet


Suggested Amendment to RAP 15.1

PROCEDURES TO WHICH TITLE APPLIES





Purpose: The proposal corrects a cross-reference to another rule.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 15.1

PROCEDURES TO WHICH TITLE APPLIES



The rules in this title define the procedure to be used (1) to determine indigency and to determine the expenses of an indigent party to review which will be paid from public funds as provided in rule 15.2, (2) to obtain a waiver of charges imposed by the court as provided in rule 15.3, (3) to claim payment from public funds for services rendered to an indigent party to review as provided in rule 15.4, (4) to allow claims for expense as provided in rule 15.5, and (5) to recover public funds expended on behalf of an indigent as provided in rule 15.6. The rules in this title apply to all proceedings in the appellate court, except the rules apply to personal restraint petitions only to the extent defined in rule 16.15 (f) and (g) and (h).


GR 9 Cover Sheet


Suggested Amendment to RAP 16.7

PERSONAL RESTRAINT PETITION -- FORM OF PETITION





Purpose: The proposal limits personal restraint petitions to 50 pages.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 16.7

PERSONAL RESTRAINT PETITION -- FORM OF PETITION



(a) Generally. [No change.]

(b) Standard Form. [No change.]

(c) Length of Petition. The petition should not exceed 50 pages.


GR 9 Cover Sheet


Suggested Amendment to RAP 16.20

TRANSMITTAL OF JURY QUESTIONNAIRES AND

CLERK'S PAPERS IN CAPITAL CASES





Purpose: The proposal clarifies that it is the Supreme Court clerk, not the trial court clerk, that provides the juror questionnaires to the appellate attorneys in a capital case.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 16.20

TRANSMITTAL OF JURY QUESTIONNAIRES AND

CLERK'S PAPERS IN CAPITAL CASES



If questionnaires are used during jury selection, the clerk of the trial court shall seal and transmit a copy of all the questionnaires to the Supreme Court along with all of the clerk's papers, including copies of any clerk's minutes. The clerk of the Supreme Court will provide defendant's appellate counsel and the prosecuting attorney copies of all of the juror questionnaires. These copies shall remain in the possession of counsel and not be made available to the defendant.

The clerk of the Supreme Court shall copy and distribute the clerk's papers as follows: one copy to the defendant, two copies to the defendant's appellate attorneys, and one copy to the prosecuting attorney.


GR 9 Cover Sheet


Suggested Amendment to RAP 17.4

FILING AND SERVICE OF MOTION -- ANSWER TO MOTION





Purpose: The proposal revises deadlines and procedures for filing and hearing motions:

Several specific deadlines that are inconsistent with current appellate practices are deleted or revised.

Section (a)'s procedures for noting motions are changed to provide greater consistency among the practices of the three divisions.

The procedures for emergency motions are revised in section (b).

Procedures for responding to a motion within a brief are added to section (d). The same change is also being proposed in RAP 10.4(d).

New procedures relating to answers to motions are added to section (e).


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 17.4

FILING AND SERVICE OF MOTION -- ANSWER TO MOTION



(a) Filing and Service Generally; Procedure for Noting a Motion Where Permitted.

(1) A motion filed by a party Except in the special circumstances defined in section (c), a motion must be served on all parties, amicus, and other persons entitled to notice.

(2) The Supreme Court and each division of the Court of Appeals will determine by General Order whether a party may note a motion for hearing. Except in the special circumstances defined in sections (b), (c), and (d), a motion which is to be decided by a commissioner or the clerk If a party is permitted to note a motion for hearing, the motion must be accompanied by a notice of the time and date set for oral argument of the motion. The movant should contact the clerk of the appellate court to determine the date and time available for argument of the motion. The motion and notice must be served on all parties, amicus, and other persons entitled to notice and filed in the appellate court at least 10 15 days before the date noted for the hearing on the motion. If service is by mail, the moving party must mail the motion and notice at least 13 days before the date noted for hearing the motion. If a motion is not noted for hearing and the court does not set a date for a hearing, the motion will be decided without oral argument.

(b) Emergency Motion. In an emergency, a person may present request expedited consideration of a motion to the commissioner or clerk on notice less than that required by section (a) and at any time and place the commissioner or clerk will make available to hear the motion. The person presenting the motion must, at the time the motion is made, file an affidavit stating the type of notice given and the time and date the notice was given to each person, and explain in the motion why it should be decided on an emergency basis. The If the court requires an answer or sets the motion for argument, it will notify the parties and other persons entitled to notice as to when an answer should be filed, and of the date, time, and place the motion will be heard. The commissioner or clerk may decide the motion only if satisfied (1) that adequate relief cannot be given if a decision of the motion is delayed to permit the notice required by section (a) the motion is considered in the normal course, and (2) the movant has taken reasonable steps under the circumstances to give notice to persons who would be affected by the ruling sought. An emergency motion may be presented on less notice that that required by section (a).

(c) Summary Determination.

(1) The commissioner or clerk may summarily determine without oral argument, and without awaiting a response an answer, a motion which, in the judgment of the commissioner or clerk, does not affect a substantial right of a party.

(2) If the commissioner or clerk makes a summary determination granting a motion under subsection (c)(1) of this rule, and a party files and serves a timely responsive pleading after the ruling has been entered, the commissioner or clerk will treat the responsive pleading as a motion for reconsideration of the ruling. If such a responsive pleading is filed, the commissioner or clerk may permit the moving party to file a reply and may allow oral argument on the motion.

(d) Motion in Brief. A party may include in a brief only a motion which, if granted, would preclude hearing the case on the merits. The answer to a motion within a brief may be made within the brief of the answering party in the time allowed for filing the brief.

(e) Answer and Reply to Motion; Reply. A person with a recognized interest in the subject matter of the motion may submit a written answer to the motion. If the motion is to be determined without oral argument, the court will set a date for the filing of the answer to the motion. If the motion is set for oral argument, the answer must be served and filed at least 4 days preceding the day of hearing. If service is by mail, the answering party must mail the answer at least 7 days before the day noted for hearing the motion. Unless the court directs otherwise, any answer must be filed and served no later than 10 days after the motion is served on the answering party. The answer to a motion within a brief may be made within the brief of the answering party. The moving party may submit a written reply to the answer to the motion. If the motion is to be determined without oral argument, the court will set a date for the filing of a reply. If the motion is set for oral argument, the reply to an answer must be served and filed by noon 2 days before the hearing. Unless the court directs otherwise, any reply to an answer must be filed and served no later than 3 days after the answer is served on the moving party, but at least 1 day prior to the date set for oral argument.

(f) Supporting Papers. A person should serve and file with the motion all affidavits and other papers submitted in support of the motion. A person must, in any event, serve and file affidavits and other papers submitted in support of the motion not less than 5 days before the date designated for hearing the motion. If the affidavits and other papers are mailed, the person must, in any event, mail them at least 8 days before the day noted for hearing the motion. Affidavits and other papers submitted in support of an answer or reply must be served and filed with the answer or reply. Rule 9.11 does not apply to affidavits and other papers submitted in connection with a motion other than a motion on the merits under rule 18.14.

(g) Length of Motion, Response Answer and Reply; Form of Papers and Number of Copies.

(1) A motion and response answer should not exceed 20 pages, not including supporting papers. A reply should not exceed 10 pages, not including supporting papers. For compelling reasons, the court may grant a motion to file an over-length motion, response answer, or reply.

(2) All papers relating to motions or responses answers should be filed in the form provided for briefs in rule 10.4(a), provided an original only and no copy should be filed. The appellate court commissioner or clerk will reproduce additional copies that may be necessary for the appellate court and charge the appropriate party as provided in rule 10.5(a).


GR 9 Cover Sheet


Suggested Amendment to RAP 17.5

ORAL ARGUMENT OF MOTION





Purpose: The proposal revised RAP 17.5 for consistency with the changes that are proposed for RAP 17.4


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 17.5

ORAL ARGUMENT OF MOTION



(a) Oral Argument to Commissioner or Clerk. Unless the motion is determined without oral argument, as provided in rule 17.4(c) for a motion determined summarily If oral argument is permitted by General Order, the movant, and any person entitled to notice of the motion who has filed a response to the motion, may present oral argument on a motion to be decided by a commissioner or the clerk.

(b) Oral Argument to Judges. [No change.]

(c) Date and Time of Argument. [No change.]

(d) Time Allowed, Order, and Conduct of Oral Argument. [No change.]

(e) Telephone Argument. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP 18.1

ATTORNEY FEES AND EXPENSES





Purpose: The proposal amends section (b) to add a cross-reference to section (j). The change makes explicit what is currently implied. Section (j) represents an exception to the statement in section (b) that a request for attorney fees made in the Court of Appeals is treated as a continuing request in the Supreme Court. Under section (j), a party who seeks attorney fees in the Supreme Court for answering a petition for review that is subsequently denied must include a request for those fees in the answer.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 18.1

ATTORNEY FEES AND EXPENSES



(a) Generally. [No change.]

(b) Argument in Brief. The party must devote a section of its opening brief to the request for the fees or expenses. Requests made at the Court of Appeals will be considered as continuing requests at the Supreme Court, except as stated in section (j). The request should not be made in the cost bill. In a motion on the merits pursuant to rule 18.14, the request and supporting argument must be included in the motion or response if the requesting party has not yet filed a brief.

(c) Affidavit of Financial Need. [No change.]

(d) Affidavit of Fees and Expenses. [No change.]

(e) Objection to Affidavit of Fees and Expenses; Reply. [No change.]

(f) Commissioner or Clerk Award Fees and Expenses. [No change.]

(g) Objection to Award. [No change.]

(h) Transmitting Judgment on Award. [No change.]

(i) Fees and Expenses Determined After Remand. [No change.]

(j) Fees for Answering Petition for Review. If attorney fees and expenses are awarded to the party who prevailed in the Court of Appeals, and if a petition for review to the Supreme Court is subsequently denied, reasonable attorney fees and expenses may be awarded for the prevailing party's preparation and filing of the timely answer to the petition for review. A party seeking attorney fees and expenses should request them in the answer to the petition for review. The Supreme Court will decide whether fees are to be awarded at the time the Supreme Court denies the petition for review. If fees are awarded, the party to whom fees are awarded should submit an affidavit of fees and expenses within the time and in the manner provided in section (d). An answer to the request or a reply to an answer may be filed within the time and in the manner provided in section (e). The commissioner or clerk of the Supreme Court will determine the amount of fees without oral argument, unless oral argument is requested by the commissioner or clerk. Section (g) applies to objections to the award of fees and expenses by the commissioner or clerk.


GR 9 Cover Sheet


Suggested Amendment to RAP 18.6

COMPUTATION OF TIME





Purpose: The proposal removes a cross-reference to RAP 17.4. Due to the changes being proposed to RAP 17.4, that rule will no longer set forth an exception to the computation of time under RAP 18.6.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 18.6

COMPUTATION OF TIME



(a) Generally. [No change.]

(b) Service by Mail. Except as provided in rule 17.4 or GR 3.1, if the time period in question applies to a party serving a paper by mail, the paper is timely served if mailed within the time permitted for service. Except as provided in GR 3.1, if the time period in question applies to the party upon whom service is made, the time begins to run 3 days after the paper is mailed to the party.

(c) Filing by Mail. Except as provided in GR 3.1, a brief authorized by Title 10 or Title 13 is timely filed if mailed to the appellate court within the time permitted for filing. Except as provided in rule 17.4 or GR 3.1, any other paper, including a petition for review, is timely filed only if it is received by the appellate court within the time permitted for filing.


GR 9 Cover Sheet


Suggested Amendment to RAP 18.14

MOTION ON THE MERITS





Purpose: The proposal amends the rule on motions on the merits by substituting "opening brief" for "appellant's brief." This change is needed because motions on the merits can be filed whether a case is on appeal or discretionary review. The term "appellant's brief" is too narrow for this context.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


RULE 18.14

MOTION ON THE MERITS



(a) Generally. [No change.]

(b) Time. A party may submit a motion on the merits to affirm any time after the appellant's opening brief has been filed. A party may submit a motion on the merits to reverse any time after the respondent's brief has been filed. The appellate court on its own motion may, at any time, set a case on the motion calendar for disposition and enter orders the court deems appropriate to facilitate the hearing and disposition of the case. The clerk will notify the parties of the setting and of any orders entered by the court.

(c) Content, Filing, and Service; Response. [No change.]

(d) Who Decides Motion. [No change.]

(e) Considerations Governing Decision on Motion. [No change.]

(f) Oral Argument. [No change.]

(g) Form of Decision Denying Motion. [No change.]

(h) Form of Decision Granting Motion. [No change.]

(i) Review of Ruling. [No change.]

(j) Nondisqualification of Judge. [No change.]

(k) Procedure Optional With Court. [No change.]


GR 9 Cover Sheet


Suggested Amendment to RAP Form 15A

NOTICE OF FILING

VERBATIM REPORT OF PROCEEDINGS





Purpose: The proposal changes the form that court reporters/transcribers use for filing a verbatim report of proceedings. The proposal adds checkboxes and a sentence relating to computer-generated transcripts. The sentence serves to remind court reporters/transcribers that they need to file the ASCII version of a computer-generated transcript.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


FORM 15A. NOTICE OF FILING

VERBATIM REPORT OF PROCEEDINGS



IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON, DIVISION _____
) No.
)
v. ) NOTICE OF FILING VERBATIM REPORT OF PROCEEDINGS (RAP 9.5)

)
DECLARATION
I, ___(name)___, court reporter/transcriber, filed the verbatim report of proceedings for 20__ on _______, 20 , for the following dates and provided a copy to the party who arranged for transcription.:
The transcript (check one): __ was computer generated __ was not computer generated.
If it was computer generated, I filed a copy of the ASCII diskette or compact disk on the same date as the transcript was filed and provided a copy to the party who arranged for transcription.

CERTIFICATE OF SERVICE


I certify that on the ____ day of _______ 20__, I caused a true and correct copy of this Notice to be served on the following in the manner indicated below:


( ) U.S. Mail
( ) Hand Delivery
( )

( )

U.S. Mail

( ) Hand Delivery
( )

( )

U.S. Mail

( ) Hand Delivery
( )
By:


GR 9 Cover Sheet


Suggested Amendment to RAP Form 19

NOTICE OF MOTION





Purpose: The proposal corrects a mistake in the form's caption. The form is a notice for motion, not a civil appeal statement. The proposal also changes "rule" to "RAP," reflecting the fact that forms like this are sometimes found separated from the rules themselves, such that a reference to a "rule" does not clearly identify the rule being referred to.


SUGGESTED AMENDMENT

RULES OF APPELLATE PROCEDURE (RAP)


FORM 19

NOTICE OF MOTION


(Rule RAP 17.4(a))

(Supreme Court or Court of Appeals, Division _____)

of the State of Washington

[Title of trial court proceeding with parties designated as in Rule 3.4] ) No. (appellate court)
)
) CIVIL APPEAL STATEMENT

NOTICE FOR MOTION

)
To: (Names of persons entitled to notice and their attorneys. See rule RAP 17.4(a).)
(Name of moving party), (appellant, petitioner, or respondent), will bring on for hearing (name of motion, for example: "Motion to Substitute Appellant") on (date). The motion will be heard by the (Judges, Commissioner, or Clerk) at (hour), or as soon thereafter as the motion can be heard. The address of the place of hearing is [room number and address].
(Date)
Signature

(Name of attorney)

Washington State Bar Association membership number

Attorney for (Appellant, Respondent, or Petitioner)

(The notice may be made a part of the motion.)

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.

Washington State Code Reviser's Office