IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrR 2.3-SEARCH AND SEIZURE; AND CrR 3.2.1 PROCEDURE FOLLOWING WARRANTLESS ARREST-PRELIMINARY APPEARANCE; AND COMMENT 5, CJC 2.9-EX PARTE COMMUNICATIONS.

) ) ) ) ) ) ) )

ORDER NO. 25700-A-1015

     The Superior Court Judges' Association having recommended the adoption of the proposed amendments to CrR 2.3-Search and Seizure and CrR 3.2.1 Procedure Following Warrantless Arrest-Preliminary Appearance; and Comment 5, CJC 2.9-Ex Parte Communications, 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 hereto are to be published for comment in the Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

     (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, 2013. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Denise.Foster@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 10th day of January, 2013.

	For the Court
	Madsen, C.J.
	CHIEF JUSTICE

     At this time, there is no request to amend the comparable rule for courts of limited jurisdiction.

     (c) Issuance and Contents. A search warrant may be issued only if the court determines there is probable cause for the issuance of a warrant. There must be an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephone statement, facsimile machine document, or electronically mailed document. The recording or a duplication of the recording, facsimile, or electronic mail shall be a part of the court record and shall be transcribed if requested by a party if there is a challenge to the validity of the warrant or if ordered by the court. The evidence in support of the finding of probable cause shall be preserved and shall be subject to constitutional limitations for such determinations and may be hearsay in whole or in part. If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court's signature to a warrant identifying the property or person and naming or describing the person, place or thing to be searched. The court's authorization may be done by electronic mail. The court shall record a summary A record shall be made of any additional submitted evidence on which it the court relies. The warrant shall be directed to any peace officer. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place, or thing named for the property or person specified. It shall designate to whom it shall be returned. The warrant may be served at any time.

     [(d) - (f) are 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.

     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.

     At this time, there is no request to amend the comparable rule for courts of limited jurisdiction.

     (b) How Determined. The court shall determine probable cause on evidence presented by a peace officer or prosecuting authority in the same manner as provided for a warrant of arrest in rule 2.2(a). The evidence shall be preserved and may consist of an electronically recorded telephonic statement, facsimile machine document, or by electronic mail. If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Said documentation may be provided to the court by facsimile machine document or electronic mail. Sworn testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part. Court authorization may be done by electronic mail.

     [(c) - (f) are 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.

     A. Purpose:

     The SCJA operates a Mentor Judge Program for superior court judges elected or appointed to the bench. The program maintains a list of current sitting judges who volunteer to serve as mentors to newly elected/appointed superior court judges. When the committee is notified of a new judge election or appointment, the chairs of the committee review the list of volunteers and assign a mentor judge from another jurisdiction to the new judge. This is intended to serve as a resource to new judges who may contact the mentor judge about any questions they may have related to their profession.

     Between October 2011 and January 2013, 24 judges have left the bench. With each retirement we experience loss of quality experience and guidance. Many former judges, who have not returned to the practice of law (as defined in CJC 3.10), could still be excellent mentor judges. The SCJA would like to revise the Mentor Program to utilize the talents of recently retired judges who are willing to serve as mentor judges. In order to accomplish this, we request a comment be added to CJC 2.9 on Ex Parte Communications to clarify exchanges allowable between a sitting judge and a retired mentor judge.

     CJC 2.9 provides in part:

     A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

     (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, or ex parte communication pursuant to a written policy or rule for a mental health court, drug court, or other therapeutic court, is permitted, provided:

     (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and

     (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.

     (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge affords the parties a reasonable opportunity to object and respond to the advice received.

     (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter.

     (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.

     (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* to do so.

     (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

     (C) A judge shall not investigate facts in a matter pending or impending before that judge, and shall consider only the evidence presented and any facts that may properly be judicially noticed, unless expressly authorized by law.

     (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control.

     [2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given.

     [3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule.

     [4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

     [5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter. A judge may consult with retired judges who no longer practice law and are enrolled in the SCJA Mentor Judge Program.

     [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

     [7] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2).

     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.