WSR 10-13-025

RULES OF COURT

STATE SUPREME COURT


[ June 3, 2010 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 6.2-DISCRETIONARY REVIEW, RAP 9.2-VERBATIM REPORT OF PROCEEDINGS, RAP 15.5-ALLOWANCE OF CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY, RAP 5.3-CONTENT OF NOTICE-FILING, RAP 15.2-DETERMINATION OF INDIGENCY AND RIGHTS OF INDIGENT PARTY, RAP FORM 12A-FINDINGS OF INDIGENCY, AND RAP FORM 13-MOTION FOR ORDER OF INDIGENCY )

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ORDER

NO. 25700-A-954


The Office of Public Defense having recommended the adoption of the proposed amendments to RAP 6.2-Discretionary Review, RAP 9.2-Verbatim Report of Proceedings, RAP 15.5-Allowance of Claim for Payment of Expense for Indigent Party, RAP 5.3-Content of Notice - Filing, RAP 15.2-Determination of Indigency and Rights of Indigent Party, RAP Form 12A-Findings of Indigency, and RAP Form 13-Motion for Order of Indigency, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as shown below are adopted.

(b) That the amendments will be published in the Washington Reports and will become effective September 1, 2010.

DATED at Olympia, Washington this 3rd day of June, 2010.
Madsen, C.J.


C. Johnson, J.


Owens, J.


Alexander, J.


Fairhurst, J.


Sanders, J.


J. M. Johnson, J.


Chambers, J.


Stephens, J.




RULES OF APPELLATE PROCEDURE (RAP)

RULE 6.2 - DISCRETIONARY REVIEW



(a) Generally. The appellate court accepts discretionary review of a trial court decision by granting a motion for discretionary review.

(b) Time To Make Motion. The party seeking discretionary review must file in the appellate court a motion for discretionary review within 15 days after filing the notice for discretionary review, or, in cases where the appellate court has appointed counsel for a party entitled to seek discretionary review at public expense pursuant to rule 15.2, within 15 days after appointment. If a party files a notice of appeal from a decision which may not be subject to review as a matter of right, the clerk or a party may note for hearing the question whether the decision is reviewable as a matter of right and, if the decision is reviewable by discretion, the question whether review should be accepted.

(c) Regular Motion Procedure Governs. A motion for discretionary review is governed by the motion procedure established by Title 17.

(d) Notice of Decision on Motion. The clerk of the appellate court will promptly give written notice to the parties and the trial court of the appellate court's decision on the motion for discretionary review.


RULES OF APPELLATE PROCEDURE (RAP)

RULE 9.2 - VERBATIM REPORT OF PROCEEDINGS



(a) [No changes]

(b) Content. A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review. A verbatim report of proceedings provided at public expense will not include the voir dire examination or opening statement unless so ordered by the trial court. If the party seeking review intends to urge that a verdict or finding of fact is not supported by the evidence, the party should include in the record all evidence relevant to the disputed verdict or finding. If the party seeking review intends to urge that the court erred in giving or failing to give an instruction, the party should include in the record all of the instructions given, the relevant instructions proposed, the party's objections to the instructions given, and the court's ruling on the objections.

(c) - (d) [No changes]

(e) Title Page and Table of Contents. The court reporter or other authorized transcriber shall include at the beginning of each volume of the verbatim report of proceedings a title page and a table of contents.

(1) The title page should include the following:

(A) Case name,

(B) Trial court and appellate cause numbers,

(C) Date(s) of hearings,

(D) Trial court judge(s),

(E) Names of attorneys at trial,

(F) Name, business address and telephone number of each court reporter or other authorized transcriber.

(2) The table of contents shall follow the title page and shall indicate, under the headings listed below, the pages where the following appear:

(A) Proceedings. The beginning of each proceeding and the nature of that proceeding;

(B) Testimony. The testimony of each witness, the page where it begins, and the type of examination, i.e., direct, cross, re-direct, re-cross, and the page where the plaintiff rests and the defendant rests;

(C) Exhibits. The admission into evidence of exhibits and depositions;

(D) Argument. The pages where opening statements and closing arguments occur, except as otherwise provided in rule 9.2(b) for verbatim reports of proceedings provided at public expense, and the pages where closing arguments occur;

(E) Instructions. All instructions proposed and given. Any other events should be listed under a suitable heading which would help the reviewing court locate separate parts of the verbatim report of proceedings.

(F) Multiple Days. If a volume includes hearings from more than one day, there shall be a separate table of contents for each day.


RULES OF APPELLATE PROCEDURE (RAP)

RULE 15.5 - ALLOWANCE OF CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY



(a) Allowance Generally. The director of the Office of Public Defense determines all claims for expense. The director will allow or disallow all or part of the claimed expense within 10 15 days, excluding weekends and legal holidays, after the invoice has been filed in the Office of Public Defense. The director will notify the claimant of the decision. A claimant may object to the decision of the director by letter to the Office of Public Defense Advisory Committee not later than 30 days after the director's decision and the Committee's decision is final.

(b) Disallowance of Claim. If a brief is unnecessarily long, improper in substance, or not in compliance with these rules, all or a portion of counsel's claim may be disallowed. If the court reporter or counsel has been dilatory, all or a portion of the claim of the court reporter or the claim of counsel may be disallowed.


RULES OF APPELLATE PROCEDURE (RAP)

RULE 5.3 CONTENT OF NOTICE - FILING



(a) - (i) [Unchanged]

(j) Assistance to Defendant in Criminal Case or Party Entitled to Review at Public Expense. Trial counsel for a defendant in a criminal case or party entitled to review at public expense is responsible for filing any appropriate notice of appeal, notice of for discretionary review, and motion for order of indigency under rule 15.2. If such a defendant or party is not represented by counsel at trial, Tthe trial court clerk shall, if requested by the defendant in a criminal case the or party in open court or in writing, supply a notice of appeal form, a notice for discretionary review form, or a form for a motion for order of indigency, and file the forms upon completion by the defendant or party.


RULES OF APPELLATE PROCEDURE (RAP)

RULE 15.2 - DETERMINAION OF INDIGENCY AND RIGHTS OF INDIGENT PARTY



(a) Motion for Order of Indigency. A party seeking review in the Court of Appeals or the Supreme Court partially or wholly at public expense must move in the trial court for an order of indigency. The party shall submit a Motion for Order of Indigency, in the form prescribed by the Office of Public Defense. office of public defense to the trial court. In any case of a type not listed in section (b)(1) of this rule, 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 the Trial Court. In written findings and after a hearing, if circumstances warrant, tThe trial court shall determine the indigency, if any, of the party seeking review at public expense and. The determination shall be made in written findings after a hearing, if circumstances warrant, or by reevaluating any order of indigency previously entered by the trial court. The court:

(1) shall grant the motion for 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 for appellate review of:

(a) criminal prosecutions or juvenile offense proceedings meeting the requirements of RCW 10.73.150,

(b) dependency and termination cases under Ch. 13.34 RCW 13.34,

(c) commitment proceedings under RCW 71.05 and 71.09,

(d) civil contempt cases directing incarceration of the contemner,

(e) orders denying petitions for writ of habeas corpus under RCW 7.36, including attorneys' fees upon a showing of extraordinary circumstances, and

(f) any other case in which the party has a constitutional or statutory right to counsel at all stages of the proceeding.; or

(2) shall deny the motion for an order of indigency 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.

(c) Other Cases. In cases not governed by subsection (b) of this rule, the trial court shall determine in written findings the indigency, if any, of the party seeking review. The party must 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 or statutory right to review partially or wholly at public expense.

(1) Party Not Indigent. The trial 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 sources of funds available to the party to pay all of the expenses of review.

(2) Party Indigent. If the trial court finds the party seeking review is unable by reason of poverty to pay for all or some of the expenses of appellate review, the trial court shall enter such findings, which shall be forwarded to the Supreme Court for consideration, pursuant to section (d) of this rule. The trial 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 trial court to promptly transmit to the Supreme Court, without charge to the moving party, the findings of indigency, the affidavit in support of the motion, and all other papers submitted in support of or in opposition to the motion. The trial court clerk shall promptly transmit to the Supreme Court the papers designated in the findings of indigency.

(d) - (f) [No changes]

(g) Appointment and Withdrawal of Counsel in Appellate Court. The appellate court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review. The Office of Public Defense shall, in accordance with its indigent appellate representation policies, provide the names of indigent appellate counsel to the appellate courts on a case-by-case bases basis. If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.

(h) Review of Order or Finding of Indigency. Only a A party in a case of a type listed in section (b)(1) of this rule may seek review of an order denying an order of indigency entered by a trial court. A party may also seek review of written findings under section (c)(1) of this rule that the party is not indigent. Review must be sought by a motion for discretionary review.

(i) [No changes]


RULES OF APPELLATE PROCEDURE (RAP)

FORM 12A - FINDINGS OF INDIGENCY



(Rule 15.2(c))

SUPERIOR COURT OF WASHINGTON

FOR ___________ COUNTY

[Name of plaintiff]

Plaintiff,

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FINDINGS OF INDIGENCY AND ORDER TO TRANSMIT FINDINGS OF INDIGENCY
[Name of defendant]

Defendant.

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The court finds that ____________________, the appellant/petitioner in this action is unable by reason of poverty to pay for all or some of the expenses of appellate review. The court finds, however, that the moving party is able to contribute $_______. The following portions of the record are reasonably necessary for review:
(1) Those portions of the verbatim report of proceedings as follows: [Designate parts of report.]
(2) A copy of the-clerk's papers as follows: [Designate papers by name and trial court clerk's subnumber.]
(3) Preparation of original documents to be reproduced by the clerk as provided in rule 14.3(b).
(4) Reproduction of briefs and other papers on review that are reproduced by the clerk of the appellate court.
(5) The cost of transmitting cumbersome exhibits: [Designate cumbersome exhibits needed for review. See rule 9.8(b).]
(6) Other items: [Designate items]

Now, therefore, it is ORDERED that the clerk of the superior court shall promptly transmit to the Supreme Court the Motion for Order of Indigency, any affidavit or declaration in support of the motion, and the Findings of Indigency.

[Date]

______________________

Signature [Name]

Judge of the Superior Court

Presented by:

[Name of party and attorney

for party presenting order;

Washington State Bar Association

membership number]


RULES OF APPELLATE PROCEDURE (RAP)

FORM 13 - MOTION FOR ORDER OF INDIGENCY



(Rule 15.2(c))

SUPERIOR COURT OF WASHINGTON

FOR ____________ COUNTY

(State of Washington)

[Name of plaintiff]

(Plaintiff,)

(Petitioner)

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Motion for Order of Indigency - (Criminal), (Juvenile Offense), (Dependency), (Termination), (Commitment), (Civil Contempt), Habeas Corpus), (Appeal involving a Constitutional or Statutory Right to Counsel) Case
[Name of defendant]

Defendant.

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______________________, (defendant) (respondent) (petitioner), files a notice of appeal in the above-referenced (criminal), (juvenile offense), (dependency), (termination), (commitment), (civil contempt), (habeas corpus), (appeal involving a constitutional or statutory right to counsel) case, and moves the court for an Order of Indigency authorizing the expenditure of public funds to prosecute this appeal (wholly at public expense) (partially at public expense).
The following declaration is made in support of this motion.
DATED: __________ ____________________

(Defendant) (Respondent) (Petitioner)

____________________

- WSBA #

Attorney for (Defendant) (Respondent) (Petitioner)

CERTIFICATE
I, _____________________, certify as follows:
1. I am the (defendant) (respondent) (petitioner) and I wish to appeal the judgment that was entered in the above-entitled cause.
2. [Check one box]
[ ] a. I have previously been found to be indigent by order of this court on ______________. There has been no change in my financial status since that time and I continue to lack sufficient funds to seek review in this case;

or

[ ] b. I have not previously been found indigent by this court or there has been a change in my financial status since the court found me to be indigent and I am including a certificate providing information as to my current financial situation. [Attach Appendix A]
((2. That I own:
( ) a. No real property
( ) b. Real property valued at $_________.
3. That I own:
( ) a. No personal property other than my personal effects
( ) b. Personal property (automobile, money, inmate account, motors, tools, etc.) valued at $_________.
4. That I have the following income:
( ) a. No income from any source.
( ) b. Income from employment, disability payments, SSI, insurance, annuities, stocks, bonds, interests, etc., in the amount of $________ on an average monthly basis. I received $_______ after taxes over the past year.
5. That I have:
( ) a. Undischarged debts in the amount of $________.
( ) b. No debts.
6. That I am without other means to prosecute said appeal and desire that public funds be expended for that purpose.
7. That I can contribute the following amount toward the expense of review: $__________.
8. The following is a brief statement of the nature of the case and the issues sought to be reviewed:.))
9. 3. I ask the court to provide order the following to be provided the following at public expense, the following: all filing fees, attorney fees, preparation, reproduction, and distribution of briefs, preparation of verbatim report of proceedings, and preparation of necessary clerk's papers.
10. 4. I authorize the court to obtain verification information regarding my financial status from banks, employers, or other individuals or institutions, if appropriate.
11. 5. I certify that I will immediately report to the Court any change in my financial status which materially affects the Court's finding of indigency.
12. 6. I certify that review is being sought seek review in good faith. The following is a brief statement of the nature of the case and the issues sought to be reviewed:_____________________________________________________________________________.
7. [For cases governed by rule 15.2(c) only] I have a constitutional or statutory right to review at public expense and the issues I want reviewed have probable merit: [Identify statutory or constitutional right and briefly describe the merit of the appeal sought]

____________________________________________________________________________________.

I, ___________________________, certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

_________________

Date and Place

____________________

Signature of (Defendant) (Respondent) (Petitioner)


APPENDIX A [To Form 13]: Initial Declaration of Indigency [To be completed if party has not previously been found indigent or certifies a material change in financial status since original finding of indigency (Box 2(b) in Form 13)]
I, ______________________ certify as follows:
1. I have not previously been found indigent by this court.
2. That I own:
( ) a. No real property
( ) b. Real property valued at $_________.
3. That I own:
( ) a. No personal property other than my personal effects
( ) b. Personal property (automobile, money, inmate account, motors, tools, etc.) valued at $_________.
4. That I have the following income:
( ) a. No income from any source.
( ) b. Income from employment, disability payments, social security, welfare, insurance, annuities, stocks, bonds, interests, etc., in the amount of $________ on an average monthly basis. I received $_______ after taxes over the past year.
5. That I have:
( ) a. Undischarged debts in the amount of $__________.
( ) b. No debts.
6. That I am without other means to prosecute said appeal and desire that public funds be expended for that purpose.
7. That I can contribute the following amount toward the expense of review: $__________.

I, ____________________, certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

_________________

Date and Place

___________________

Signature of (Defendant) (Respondent) (Petitioner)

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 spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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