WSR 13-23-038

RULES OF COURT

[November 12, 2013]

The Washington State Bar Association having recommended the adoption of the proposed amendments to RALJ 2.2—What May Be Appealed, RAP 5.3—Content Of Notice—Filing, RAP 10.3—Content Of Brief and RAP 18.5—Service and Filing Of Papers, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(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, 2014.

(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, 2014. 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 12th day of November, 2013.

(Codifying scope of appeal)

Purpose: The Rules of Appellate Procedure state, "The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). Formally codifying this rule for appeals from Courts of Limited Jurisdiction would aid pro se litigants in understanding the scope of appealable issues. As the Court stated in State v. Naillieux, 158 Wn. App. 630, 638, 241 P.3d 1280 (2010):

Our function is to review the validity of claimed errors by a trial judge who presided over a trial. That function assumes that counsel preserve the error by objecting to something the trial judge did or did not do. We do not, and should not, be in the business of retrying these cases. It is a wasteful use of judicial resources. Id. at 344, 835 P.2d 251; State v. Bashaw, 169 Wn.2d 133, 146, 234 P.3d 195 (2010); State v. Labanowski, 117 Wn.2d 405, 420, 816 P.2d 26 (1991). And it encourages skilled counsel to save claims of constitutional error for appeal so a defendant can get a new trial and second chance at a not guilty verdict if the first trial does not end in his favor. Lynn, 67 Wash.App. at 343, 835 P.2d 251.

Therefore, adding the exact language from RAP 2.5(a) to RALJ 2.2 would be consistent with existing case law.

RULES FOR APPEAL OF DECISIONS OF COURTS OF LIMITED JURISDICTION (RALJ)

(a) - (c) [No change]

Purpose: This amendment has two purposes. The first is to make the rule more easily understandable to the practitioner by eliminating unnecessary words and restructuring sentences to more clearly set forth the governing standard. The amendments to the first two sentences are not intended to alter or modify the substance of the original rule.

The second purpose of this amendment is to fill a gap that exists in the current rule. The current rule does not state whether and to what extent an amended notice of appeal or amended notice of discretionary review affects the ability of a party to seek cross review when the deadline to seek cross review from the original notice of appeal has passed. The proposed rule would provide that the filing of an amended notice of appeal or amended notice of discretionary review extends the time allowed to seek cross review of only those parts of the trial court's decisions identified in the amended notice of appeal or amended notice of discretionary review. In such cases, the party seeking cross review must provide notice within 14 days or as otherwise provided by statute or rule.

The proposed rule prevents prejudice to the respondent by allowing it to seek cross review of newly identified issues. The proposed rule prevents prejudice to the appellant by ensuring that filing an amended notice of appeal that adds a clarifying or minor part of the trial court's decision will not allow the respondent to seek cross review of the entire trial court's decision when the deadline to seek cross review has passed.

(a) Content of Notice of Appeal. A notice of appeal must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken. The party filing the notice of appeal should attach to the notice of appeal a copy of the signed order or judgment from which the appeal is made, and, in a criminal case in which two or more defendants were joined for trial by order of the trial court, provide the names and superior court cause numbers of all codefendants.

(b) Content of Notice for Discretionary Review. A notice for discretionary review must comply in content and form with the requirements for a notice of appeal, except that it should be titled a notice for discretionary review. A party seeking discretionary review of a decision of a court of limited jurisdiction should include the name of the district or municipal court and the cause number for which review is sought.

(c) Identification of Parties, Counsel, and Address of Defendant in Criminal Case. The party seeking review should include on the notice of appeal the name and address of the attorney for each of the parties. In a criminal case the attorney for the defendant should also notify the appellate court clerk of the defendant's address, by placing this information on the notice. The attorney for a defendant in a criminal case must also keep the appellate court clerk advised of any changes in defendant's address during review.

(d) Multiple Parties Filing Notice. More than one party may join in filing a single notice of appeal or notice for discretionary review.

(e) Notices Directed to More Than One Case. If cases have been consolidated for trial, or have been tried together even though not consolidated for trial, separate notices for each case or a single notice for more than one case may be filed. A single notice for more than one case will be given the same effect as if a separate notice had been filed for each case. If cases have not been consolidated for trial or have not been tried together, separate notices must be filed.

(f) Defects in Form of Notice. The appellate court will disregard defects in the form of a notice of appeal or a notice for discretionary review if the notice clearly reflects an intent by a party to seek review.

(g) Notices Directed to More Than One Court. If a notice of appeal or a notice for discretionary review is filed which is directed to the Court of Appeals and a notice is filed in the same case which is directed to the Supreme Court, the case will be treated as if all notices were directed to the Supreme Court.

(h) Amendment of Notice Directed to Portion of Decision. In order to do justice, Tthe appellate court may, on its own initiative or on the motion of a party, permit an amendment of a notice to include (i) additional parts of a trial court decision, in order to do justice. On discretionary review, the appellate court may, on its own initiative or on the motion of a party, permit an amendment of a notice to include acts of the trial court that are subsequent to the act for which discretionary review was first sought if the subsequent acts or (ii) subsequent acts of the trial court that relate to the subject of the first review act designated in the original notice of discretionary review. If the amendment is permitted, the record should be supplemented as provided in rule 9.10. The appellate court may condition the amendment on appropriate terms, including payment of a compensatory award under rule 18.9. An amendment extends the time allowed to seek cross review only of those additional parts of the decision or subsequent acts, and such notice seeking cross review must be filed within the later of (1) 14 days after service of the amended notice filed by the other party, or (2) the time within which notice must be given as provided by rule 5.2 (a), (b), (d), or (e).

(i) Notice by Fewer Than All Parties on a Side—Joinder. If there are multiple parties on a side of a case and fewer than all of the parties on that side of the case timely file a notice of appeal or notice for discretionary review, the appellate court will grant relief only (1) to a party who has timely filed a notice, (2) to a party who has been joined as provided in this section or (3) to a party if demanded by the necessities of the case. The appellate court will permit the joinder on review of a party who did not give notice only if the party's rights or duties are derived through the rights or duties of a party who timely filed a notice or if the party's rights or duties are dependent upon the appellate court determination of the rights or duties of a party who timely filed a notice.

(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 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, the trial court clerk shall, if requested by the defendant 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.

Purpose: The proposed amendment deletes reference to RCW 41.64, which was repealed in 2002, effective July 1, 2006.

(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) – (2) no changes]

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

[(4) – (8) no changes]

(h) Assignments of Error on Review of Certain Administrative Orders. In addition to the assignments of error required by rule 10.3 (a)(3) and 10.3(g), the brief of an appellant or respondent who is challenging an administrative adjudicative order under RCW 34.05 or a final order under RCW 41.64 shall set forth a separate concise statement of each error which a party contends was made by the agency issuing the order, together with the issues pertaining to each assignment of error.

Purpose: This amendment deletes the reference to CR 5(h), Service of Papers by Telegraph, which has been rescinded.

(a) Service. Except when a rule requires the appellate court commissioner or clerk or the trial court clerk to serve a particular paper, and except as provided in rule 9.5, a person filing a paper must, at or before the time of filing, serve a copy of the paper on all parties, amicus, and other persons who may be entitled to notice. If a person does not have an attorney of record, service should be made upon the person. Service must be made as provided in CR 5 (b), (f), and (g), and (h).

(b) Proof of Service. Proof of service should be made by an acknowledgment of service, or by an affidavit, or, if service is by mail, as provided in CR 5(b). Proof of service may appear on or be attached to the papers filed.

(c) Filing. Papers required or permitted to be filed in the appellate court must be filed with the clerk, except that an appellate court judge may permit papers to be filed with the judge, in which event the judge will note the filing date on the papers and promptly transmit them to the appellate court clerk.

(d) Filing by Facsimile. [Reserved. See GR 17—Facsimile Transmission.]

(e) Service and Filing by an Inmate Confined in an Institution. An inmate confined in an institution may file and serve papers by mail in accordance with GR 3.1.