WSR 10-01-029

RULES OF COURT

STATE SUPREME COURT


[ December 3, 2009 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO CrRLJ 4.1-ARRAIGNMENT, IRLJ 2.1(b)-NOTICE OF INFRACTION-CONTENT AND IRLJ 3.1(d)-CONTESTED HEARINGS-PRELIMINARY PROCEEDINGS )

)

)

)

)

)

ORDER

NO. 25700-A-940

†††† The District and Municipal Judges Association having recommended the adoption of the proposed amendments to CrRLJ 4.1-Arraignment, IRLJ 2.1(b)-Notice of Infraction-Content and IRLJ 3.1(d)-Contested Hearings-Preliminary Proceedings, 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 web sites 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

Suggested Changes to CrRLJ 4.1 Arraignment


GR 9 Cover Sheet



†††† Purpose: The suggested changes to CrRLJ 4.1 require that a defendant be informed of his or her right to counsel prior to being arraigned in a court of limited jurisdiction. If the defendant is indigent, the court will be required to assign counsel, unless waived by the defendant.

†††† CrRLJ 4.1 governs procedures for arraignments in courts of limited jurisdiction. In these courts, arraignment is usually the first appearance for persons charged with a misdemeanor offense. (It is usually only in-custody misdemeanor defendants who are seen at a CrRLJ 3.2.1 preliminary appearance.)

†††† At arraignment, defendants are apprised of their rights in a criminal case and of the charges against them for the first time.

†††† At the arraignment hearing the judge may also make a finding of probable cause and set bail and other conditions of release. The conditions of release that may be imposed include electronic home detention, GPS monitoring, alcohol and drug use restrictions and no-contact orders. Violation by the defendant of any one of these conditions of release may result in the defendant's pretrial incarceration. Finally, the defendant will be required to enter a plea of guilty or not guilty.

†††† The court rules provide that a lawyer must be provided at every critical stage of a criminal case. See CrRLJ 3.1 (b)(2). Arraignment is a critical stage in the proceedings and the opportunity to consult with counsel should be required. However, the current version of CrRLJ 4.1 is ambiguous regarding the requirement for counsel. The DMCJA's suggested amendments to this rule clarify that the court must inform the defendant of his or her right to have access to counsel before being arraigned, and that the court must appoint counsel for an indigent defendant before arraignment, unless the defendant waives his or her right to counsel.

†††† The current version of CrRLJ 4.1 states that a defendant may not be forced to enter a plea to the complaint until he or she has had a reasonable time to examine it and to consult with a lawyer, "if requested". See CrRLJ 4.1 (a)(2). The rule also requires the judge to "advise" a defendant on the record of the "right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one". See CrRLJ 4.1 (a)(3). By contrast, the superior court arraignment rule, CrR 4.1(c), requires that the judge inform any defendant who appears without counsel at arraignment of his or her right to have counsel before being arraigned. In the superior court, a judge is also obligated to assign counsel to a defendant if a defendant is not represented and is unable to obtain counsel. CrR 4.1(c).

†††† The lack of clarity in CrRLJ 4.1 plays a role in the absence of uniformity in arraignment practices in courts of limited jurisdiction in Washington state. While some local jurisdictions provide counsel for unrepresented defendants at arraignment, many do not. The failure to provide counsel at arraignment erodes the crucial right to counsel firmly established in the Sixth and Fourteenth Amendments to the U.S. Constitution and in the Washington State Constitution, where the right to counsel is co-extensive with its federal counterpart. See Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682 (1972); Coleman v. Alabama, 399 U.S. 1 (1970); State v. Long, 104 Wn. 2d 285 (1985). At arraignment calendars without defense counsel, prosecutors are able to negotiate directly with unrepresented and often unsophisticated defendants at their first appearance; and judges often take guilty pleas from hurried and confused defendants before the defendants can review the matter with a lawyer. Moreover, in many courts, neither a defense lawyer nor a prosecutor is present at the arraignment hearing. The judge then is forced to play the roles traditionally assigned to advocates in our criminal justice system. A 2006 decision of the Commission on Judicial Conduct, In re Ottinger, identified many defective practices relating to the judge's handling of preliminary matters at arraignment. However, the decision lauds Judge Ottinger's decision to require a public defender at arraignment calendars to help remedy the concerns of the Judicial Conduct Commission:

†††† Following June 2005, Respondent began requiring both prosecutors and public defenders to attend all arraignments and bail hearings in her courtroom. While Respondent ultimately waived the requirement for prosecutors to appear, she did continue to require the presence of public defenders at this critical stage of the proceeding .... This procedure ensured that defendants would have attorneys present to advise them at their first appearance and arraignments. This procedure was a very positive change, protected defendants' rights, and may serve as a model for other courts.

†††† In re Ottinger, CJC No. 4475-F-119, page 6, lines 20-28 through page 7, line 1 (2006). (Commission recommendation approved by Washington Supreme Court in In re Ottinger, Supreme Court Order No. 200, 389-3 (July 20, 2006).

†††† The suggested changes to CrRLJ 4.1 eliminate any ambiguity about the right to counsel at arraignment. The revised amendment to CrRLJ 4.1(c) mirrors the language found in the superior court rule, CrR 4.1(c), except that CrRLJ 4.1 adds the words, "due to indigence" to clarify that only indigent defendants are entitled to have counsel assigned by the court. The proposed amendment to CrRLJ 4.1(c) reads: "If the defendant appears without counsel, the court shall inform the defendant of his or her right to have counsel before being arraigned. The court shall inquire if the defendant has counsel. If the defendant is not represented and is unable to obtain counsel, due to indigence, counsel shall be assigned by the court, unless otherwise provided." (Emphasis added.) Superior courts acting under CrR 4.1 appear to have had little difficulty in complying with the requirement that indigent defendants have the opportunity to have the advice of counsel at arraignment.

†††† Under the amended version of CrRLJ 4.1, jurisdictions will have flexibility in determining how to provide counsel for indigent defendants at arraignment. Options include the presence of an "attorney of the day" for all indigent persons on the calendar or video or telephone consultation at the time of arraignment. Many jurisdictions have pre-screening processes in place, and once a defendant has been determined to meet the criteria for indigence, the defendant is assigned to appear at a calendar time at which a public defender is already assigned.

†††† Although the guilty plea form required by CrRLJ 4.2(g) sets out a written advisement of rights and information as to the consequences of a plea of guilty (in five single-spaced pages), it may be unrealistic to believe that unrepresented defendants at arraignment calendars have the same understanding of their rights as a represented defendant. People entering the justice system are often ignorant of legal concepts, unsophisticated, low on the literacy continuum, frightened and intimidated by authority. There are no voluntary programs that provide attorneys for indigent persons at arraignment. Defendants charged with crimes in the courts of limited jurisdiction should have the same basic due process rights as those charged with crimes in the superior court.

†††† Several other suggested amendments to CrRLJ 4.1 will make the rule consistent with the superior court rule except for some instances where CrRLJ 4.1 identifies the charging document using the language of the court of limited jurisdiction rules (i.e., complaint or citation and notice) and not the language of superior court rules (information or indictment). CrRLJ 4.1 (a)(1) changes the time for arraignment from 15 days to 14 days. The Court Rules Committee could not find any reason the superior court rule specified 14 days and the court of limited jurisdiction rule 15 days. The sections on waiver of counsel (suggested CrRLJ 4.1(d)), reading the defendant's name and the charge (suggested CrRLJ 4.1 (e) and (f)) also now conform to the superior court rule.

†††† The suggested rule amendments also eliminate the waiver of jury trial at arraignment in CrRLJ 4.1 (c)(1). A waiver at this stage is not found in the superior court arraignment rule and waiver of the constitutional right to jury at a preliminary appearance, without the benefit of time to thoroughly consult with counsel, is ill-advised. Although the current rule allows a defendant to withdraw the waiver within 10 days, this does not allow sufficient time to consult with counsel.

†††† The changes proposed to CrRLJ 4.1 will clarify the right to counsel at the critical stage of arraignment. The changes will ensure greater uniformity of practice in the courts, which leads to greater confidence within the Bar and the public. Judges will have the force of the court rule behind budget requests to provide counsel for indigent defendants at arraignment.


CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION (CrRLJ)


RULE 4.1 ARRAIGNMENT



†††† (a) Procedures. After the complaint or the citation and notice has been filed, the defendant shall be arraigned thereon in open court.

†††† (1) Time.

†††† (1) Defendant Detained in Jail. (i) The defendant shall be arraigned not later than 15 14 days after the date the complaint or citation and notice is filed in court, if the defendant is (A) (i) detained in a county or city jail in the county where the charges are pending, or (B) (ii) subject to conditions of release imposed in connection with the same charges.

†††† (ii) (2) Defendant Not Detained in Jail. The defendant shall be arraigned not later than 15 14 days after that appearance which next follows the filing of the complaint or citation and notice, if the defendant is not detained in such jail or subject to such conditions of release. Any delay in bringing the defendant before the court shall not affect the allowable time for arraignment, regardless of the reason for the delay. For purposes of this rule, "appearance" has the meaning defined in CrRLJ 3.3 (a)(3)(iii).

†††† (2) Reading and Plea. Arraignment shall consist of reading the complaint or the citation and notice to the defendant or stating to him or her the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the complaint or the citation and notice before being called upon to plead, unless a copy has previously been supplied. The defendant shall not be required to plead to the complaint or the citation and notice until he or she shall have had a reasonable time to examine it and to consult with a lawyer, if requested.

†††† (3) Advisement. At arraignment, unless the defendant appears with a lawyer, the court shall advise the defendant on the record:

†††† (i) of the right to trial by jury if applicable; and

†††† (ii) of the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one.

†††† (b) Objection to Arraignment Date -- Loss of Right to Object. A party who objects to the date of arraignment on the ground that it is not within the time limits prescribed by this rule must state the objection to the court at the time of the arraignment. If the court rules that the objection is correct, it shall establish and announce the proper date of arraignment. That date shall constitute the arraignment date for purposes of CrRLJ 3.3. A party who fails to object as required shall lose the right to object, and the arraignment date shall be conclusively established as the date upon which the defendant was actually arraigned.

†††† (c) Waiver. Counsel.

†††† (1) Jury trial. A waiver of jury trial at arraignment must be in writing and signed by the defendant. If the defendant waives a jury trial at arraignment, he or she must be advised of the right to withdraw the waiver and request a jury trial within 10 days of arraignment. If the defendant appears without counsel, the court shall inform the defendant of his or her right to have counsel before being arraigned. The court shall inquire if the defendant has counsel. If the defendant is not represented and is unable to obtain counsel, due to indigence, counsel shall be assigned to the defendant by the court, unless otherwise provided.

†††† (2) Lawyer. If the defendant chooses to proceed without a lawyer, the court shall determine on the record that the waiver is made voluntarily, competently and with knowledge of the consequences. The defendant must be advised that waiver of a lawyer at arraignment does not preclude the defendant from asserting the right to a lawyer later in the proceedings.

†††† (d) Name. At arraignment, the court shall ask the defendant his or her true name. If the defendant's name has been incorrectly stated in the complaint or citation and notice, the court shall order the complaint or citation and notice to be corrected accordingly. Waiver of Counsel. If the defendant chooses to proceed without counsel, the court shall determine on the record that the waiver is made voluntarily, competently and with knowledge of the consequences. If the court finds the waiver valid, an appropriate finding shall be entered in the record. Unless the waiver is valid, the court shall not proceed with the arraignment until counsel is provided. Waiver of counsel at arraignment shall not preclude the defendant from claiming the right to counsel in subsequent proceedings in the cause, and the defendant shall be so informed.

†††† (e) Appearance by Defendant's Lawyer. Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed. Name. Defendant shall be asked his or her true name. If the defendant alleges that their true name is one other than that by which he or she is charged, it must be entered in the record, and subsequent proceedings shall be had against him or her by that name or other names relevant to the proceedings.

†††† (1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.

†††† (2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.

†††† (3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.

†††† (4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.

†††† (5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.

†††† (6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.

†††† (f) Reading. The complaint or citation and notice or the substance of the charge, shall be read to the defendant, unless the reading is waived, and a copy shall be given to the defendant.

†††† (g) Appearance by Defendant's Lawyer. Except as otherwise provided by statute or by local court rule, a lawyer may enter an appearance or a plea of not guilty on behalf of a client for any offense. Such appearance or plea may be entered only after a complaint or citation and notice has been filed.

†††† (1) The appearance or the plea of not guilty shall be made only in writing or in open court, and eliminates the need for a further arraignment.

†††† (2) An appearance that waives arraignment but fails to state a plea shall be deemed to constitute entry of a plea of not guilty.

†††† (3) An appearance under this rule constitutes a waiver of any defect in the complaint or the citation and notice except for failure to charge a crime which may be raised at any time and except for any other defect that is specifically stated in writing or on the record at the time the appearance is entered.

†††† (4) A written appearance shall commence the running of the time periods established in rule 3.3 from the date of its receipt by the court, unless the time periods have previously been commenced by an appearance in open court.

†††† (5) Telephonic requests or notices by either the defendant or the defendant's lawyer shall not constitute an arraignment or an appearance or entry of a plea, and shall not commence the running of the time periods under rule 3.3.

†††† (6) The appearance by a lawyer authorized by this rule shall be construed as an "arraignment" under the other provisions of these rules.


GR 9 Cover Sheet


Proposed Amendment to Infraction Rules for Courts of Limited Jurisdiction (IRLJ)


Revised IRLJ 2.1(b) and IRLJ 3.1(d)



†††† Purpose: The suggested changes to IRLJ 2.1(b) and 3.1(d) will resolve an issue regarding the required contents of the uniform notice of infraction.

†††† At present, IRLJ 2.1(b) states that:

†††† (b) Contents. The notice of infraction shall contain the following information on the copy given to the defendant, except the information required by subsections (2) is not required on a notice of infraction alleging the commission of a parking, standing, or stopping infraction:

†††† (1) ...

†††† ...

†††† ...


†††† (9) Any additional information determined necessary by the Administrator for the Courts.

†††† (Emphasis added.)

†††† The notice of infraction approved by the Administrator for the Courts now includes three separate spaces for the telephone numbers of the defendantówork, home and cell numbers. An issue has arisen in cases where the officer has failed to inscribe all three telephone numbers on the notice of infraction. Defendants are requesting that the courts dismiss their citations on the grounds that the word "shall" in IRLJ 2.1(b) makes mandatory the inclusion of all three telephone numbers.

†††† However, the infraction court rules are clear that an infraction should be dismissed only if there is prejudice to substantial rights of the defendant. At present, IRLJ 3.1(d) states as follows:

†††† "No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction which the defendant is alleged to have committed, nor by reason of defects or imperfections which do not tend to prejudice substantial rights of the defendant."

†††† Failure to include all three of the defendant's telephone numbers will not usually prejudice the "substantial rights of the defendant", because the defendant is already familiar with his or her telephone numbers and because that information will have no bearing on whether or not the defendant committed the charged infraction. However, it can be argued that the officer's failure to include the numbers is more of an "omission" than a "defect" or "imperfection". Therefore, the DMCJA suggests that the rule be amended to include the word "omission".

†††† Adding the phrase "subject to IRLJ 3.1(d)" to the beginning of IRLJ 2.1(b) will clarify that courts and parties should look to IRLJ 3.1(d) for the standard to apply to decide motions based on the sufficiency of the information in the notice of infraction. Adding the word "omission" to IRLJ 3.1(d) will clarify that the omission of information that does not prejudice substantial rights of the defendant is not grounds for dismissal of the infraction.

†††† Finally, there appears to be a clerical error in IRLJ 2.1(b), which refers to "subsections" (2). It is suggested that this be changed to "subsection" (2).


IRLJ 2.1 NOTICE OF INFRACTION


†††† (a) Infraction Form Prescribed or approved by the Administrative Office of the Courts. Infraction cases shall be filed on a form entitled "Notice of Infraction" prescribed by the Administrative Office of the Courts; except that the form used to file cases alleging the commission of a parking, standing or stopping infraction shall be approved by the Administrative Office of the Courts. Notice of Infraction forms prescribed or approved by the Administrative Office of the Courts are presumed valid and shall not be deemed insufficient by reason of defects or imperfections which do not prejudice substantial rights of the defendant.

†††† (b) Contents. Subject to IRLJ 3.1(d), The the notice of infraction shall contain the following information on the copy given to the defendant, except the information required by subsections (2) is not required on a notice of infraction alleging the commission of a parking, standing, or stopping infraction:

†††† (1) The name, address, and phone number of the court where the notice of infraction is to be filed;

†††† (2) The name, address, date of birth, sex, physical characteristics, and, for a notice of traffic infraction, the operator's license number of the defendant;

†††† (3) For a notice of traffic infraction, the vehicle make, year, model, style, license number, and state in which licensed;

†††† (4) The infraction which the defendant is alleged to have committed and the accompanying statutory citation or ordinance number, the date, time, and place the infraction occurred, the date the notice of infraction was issued, and the name and, if applicable, the number of the citing officer;

†††† (5) A statement that the defendant must respond to the notice of infraction within 15 days of issuance;

†††† (6) A space for entry of the monetary penalty which respondent may pay in lieu of appearing in court;

†††† (7) A statement that a mailed response must be mailed not later than midnight on the day the response is due;

†††† (8) The statements required by RCW 46.63.060 or other applicable statute; and

†††† (9) Any additional information determined necessary by the Administrator for the Courts.


IRLJ 3.1 CONTESTED HEARINGS -- PRELIMINARY PROCEEDINGS


†††† (a) Subpoena. [No change.]

†††† (b) Discovery. [No change.]

†††† (c) Amendment of Notice. [No change.]

†††† (d) Sufficiency. No notice of infraction shall be deemed insufficient for failure to contain a definite statement of the essential facts constituting the specific infraction which the defendant is alleged to have committed, nor by reason of defects, or imperfections, or omissions which do not tend to prejudice substantial rights of the defendant.

†††††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