WSR 10-01-027

RULES OF COURT

STATE SUPREME COURT


[ December 3, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 9.6-DESIGNATION OF CLERK'S PAPERS AND EXHIBITS, RAP 9.7-PREPARING CLERK'S PAPERS AND EXHIBITS FOR APPELLATE COURT, RAP 11.3(a)-DATE OF ARGUMENT, RAP 13.4-DISCRETIONARY REVIEW OF DECISION TERMINATING REVIEW AND RAP 18.1-ATTORNEYS FEES AND EXPENSES )

)

)

)

)

)

)

)

)

)

)

ORDER

NO. 25700-A-938


The Washington Appellate Lawyers Association having recommended the adoption of the proposed amendments to RAP 9.6-Designation of Clerk's Papers and Exhibits, RAP 9.7-Preparing Clerk's Papers and Exhibits for Appellate Court, RAP 11.3(a)-Date of Argument, RAP 13.4-Discretionary Review of Decision Terminating Review and RAP 18.1-Attorneys Fees and Expenses, 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 attached hereto 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 3rd day of December, 2009.
For the Court

Gerry L. Alexander
CHIEF JUSTICE


RAP 9.6

GR 9 Cover Sheet



Purpose: Compiling a set of clerk's papers is frequently an expensive and cumbersome task for appellate counsel. The purpose of this amendment is to simplify this task by requiring the trial court clerk to make available a complete set of clerk's papers to the parties or their counsel, subject to payment of the clerk's reasonable reproduction expenses. With advances in computer technology, electronic filing, and document scanning, many trial court clerks have the ability to compile and reproduce the clerk's papers in electronic format, and, in fact, transmit the clerk's papers to the appellate court electronically. This amendment will allow the parties or counsel to obtain a computer generated set of clerk's papers in electronic format where the trial court clerk prepares the clerk's papers electronically, subject to payment of the clerk's reproduction expenses, at a rate not to exceed that charged by the clerk for photocopying the clerk's.


PROPOSED AMENDMENT


RAP 9.6

DESIGNATION OF CLERK'S PAPERS AND EXHIBITS



[(a) & (b) unchanged]

(c) Format.

(1) Full copies of all designated pleadings shall be included, unless the trial court orders otherwise.

(2) The trial court clerk shall number the papers sequentially from beginning to end, including any supplemental clerk's papers, regardless of which party designated them.

(3) The trial court clerk shall make available a copy of the clerk's papers transmitted to the appellate court to any party, upon payment of the trial court clerk's reasonable expenses. If the trial court clerk generates the clerk's papers in electronic format, the trial court clerk shall make available to any party a copy of the clerk's papers in electronic format, upon payment of the trial court clerk's reasonable expenses.


RAP 9.7

GR 9 Cover Sheet



Purpose: WALA has proposed amendments to RAP 9.7 to allow electronic reproduction and transmission of the clerk's papers. With electronic filing and scanning, many superior court clerks reproduce the clerk's papers in electronic format, and appellate court clerks store and disseminate clerk's papers electronically. This amendment allows the superior court clerk to transmit clerk's papers electronically, as an alternative to sending hard copies to the appellate court.

The clerks have proposed changing the time within which the clerk's papers must be delivered to the appellate court to 14 days, from the current wording, which requires transmission "upon receipt."


RAP 9.7

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,. The clerk shall and bind the assembled clerk's papers in volumes of no more than 200 pages, or, alternatively, 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. The clerk of the trial court shall assemble those exhibits designated by the parties and prepare them for transmission to the appellate court. Exhibits which are papers should be assembled in the order the exhibits are numbered with a cover sheet which lists the exhibits and is titled "Exhibits."

(c) Certified record of administrative adjudicative orders. When an administrative agency has certified the record of an administrative order for review by the superior court, the clerk of the superior court shall transmit to the appellate court the original record certified by the administrative agency.


RAP 11.3

DATE OF ARGUMENT



(a) Notice. The clerk will advise all parties and others who have filed briefs of the time and place of oral argument and the members of the court who will consider the case on the merits.

(b) Unchanged.


RAP 13.4

GR 9 Cover Sheet



Purpose: Subsection (g)'s current provision, allowing the clerk to serve the parties with a petition, parallels former RAP 10.5, which provided that the clerk, and not the parties, should serve appellate briefs. The current version of RAP 13.4(g) is an anachronism as it places an unnecessary burden on the appellate court and leads to confusion and delay regarding the date of service. Petitions, answers to petitions, and replies, when authorized by RAP 13.4(d), should be served by the party filing the document.


RAP 13.4

DISCRETIONARY REVIEW OF DECISION TERMINATING REVIEW



(a) How to Seek Review. A party seeking discretionary review by the Supreme Court of a Court of Appeals decision terminating review must file a petition for review or an answer to the petition that raises new issues. A petition for review should be filed in the Court of Appeals. If no motion to publish or motion to reconsider all or part of the Court of Appeals decision is timely made, a petition for review must be filed within 30 days after the decision is filed. If such a motion is made, the petition for review must be filed within 30 days after an order is filed denying a timely motion for reconsideration or determining a timely motion to publish. If the petition for review is filed prior to the Court of Appeals determination on the motion to reconsider or on a motion to publish, the petition will not be forwarded to the Supreme Court until the Court of Appeals files an order on all such motions. The first party to file a petition for review must, at the time the petition is filed, pay the statutory filing fee to the clerk of the Court of Appeals in which the petition is filed.

(b) Considerations Governing Acceptance of Review. A petition for review will be accepted by the Supreme Court only:

(1) If the decision of the Court of Appeals is in conflict with a decision of the Supreme Court; or

(2) If the decision of the Court of Appeals is in conflict with another decision of the Court of Appeals; or

(3) If a significant question of law under the Constitution of the State of Washington or of the United States is involved; or

(4) If the petition involves an issue of substantial public interest that should be determined by the Supreme Court.

(c) Content and Style of Petition. The petition for review should contain under appropriate headings and in the order here indicated:

(1) Cover. 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 reference to the pages of the brief where cited.

(3) Identity of Petitioner. A statement of the name and designation of the person filing the petition.

(4) Citation to Court of Appeals Decision. A reference to the Court of Appeals decision which petitioner wants reviewed, the date of filing the decision, and the date of any order granting or denying a motion for reconsideration.

(5) Issues Presented for Review. A concise statement of the issues presented for review.

(6) Statement of the Case. A statement of the facts and procedures relevant to the issues presented for review, with appropriate references to the record.

(7) Argument. A direct and concise statement of the reason why review should be accepted under one or more of the tests established in section (b), with argument.

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

(9) Appendix. An appendix containing a copy of the Court of Appeals decision, any order granting or denying a motion for reconsideration of the decision, and copies of statutes and constitutional provisions relevant to the issues presented for review.

(d) Answer and Reply. A party may file an answer to a petition for review. If the party wants to seek review of any issue that is not raised in the petition for review, including any issues that were raised but not decided in the Court of Appeals, the party must raise those new issues in an answer. Any answer should be filed within 30 days after the service on the party of the petition. A party may file a reply to an answer only if the answering party seeks review of issues not raised in the petition for review. A reply to an answer should be limited to addressing only the new issues raised in the answer. A reply to an answer should be filed within 15 days after the service on the party of the answer. An answer or reply should be filed in the Supreme Court. The Supreme Court may call for an answer or a reply to an answer.

(e) Form of Petition, Answer, and Reply. The petition, answer, and reply should comply with the requirements as to form for a brief as provided in rules 10.3 and 10.4, except as otherwise provided in this rule.

(f) Length. The petition for review, answer, or reply should not exceed 20 pages double spaced, excluding appendices.

(g) Service and Reproduction of Petition, Answer, and Reply. The party filing the petition for review, the answer, and any reply, should serve a copy on every other party and any amicus curiae and file proof of service in accordance with rules 18.5 and 18.6. The clerk will arrange for the reproduction of copies of a petition for review, an answer, or a reply, and bill the appropriate party for the copies as provided in rule 10.5. The clerk will serve the petition, answer, or reply if the party has not done so.

The clerk will serve the petition, answer, or reply if the party has not done so.

(h) Amicus Curiae Memoranda. The Supreme Court may grant permission to file an amicus curiae memorandum in support of or opposition to a pending petition for review. Absent a showing of particular justification, an amicus curiae memorandum should be received by the court and counsel of record for the parties and other amicus curiae not later than 60 days from the date the petition for review is filed. Rules 10.4 and 10.6 should govern generally disposition of a motion to file an amicus curiae memorandum. An amicus curiae memorandum or answer thereto should not exceed 10 pages.

(i) No Oral Argument. The Supreme Court will decide the petition without oral argument.


RAP 18.1

GR 9 Cover Sheet



Purpose: Although an appellate fee or cost award is not enforceable until the mandate is returned from the appellate courts, an award of fees and costs on appeal is a sum certain on which prejudgment interest should accrue.


RAP 18.1


Rule 18.1, Attorney Fees And Expenses

[(a)-(g) unchanged]

(h) Transmitting Judgment on Award. The clerk will include the award of attorney fees and expenses in the mandate, or the certificate of finality, or in a supplemental judgment. The award of fees and expenses, including interest from the date of the award by the appellate court, may be enforced in the trial court.

[(i) & (j) unchanged]

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.

Washington State Code Reviser's Office