WSR 14-23-030

RULES OF COURT

[November 6, 2014]

The Washington State Bar Association having recommended the Annual Rules Submission—CR 33—Interrogatories to Parties; CrR 6.4—Challenges; CrRLJ 2.1—Complaint—Citation and Notice; CrRLJ 4.8—Subpoenas; CrRLJ 7.2—Sentencing and CrR 7.2—Sentencing, and the Court having considered the amendments and comments submitted thereto;

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 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, 2015. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 6th day of November, 2014.

This suggested amendment is intended to address an issue posed by the discovery of electronically stored information ("ESI").

Since the 2006 changes to various Federal Rules of Civil Procedure to address ESI, the WSBA's Court Rules and Procedures Committee has considered whether Washington should consider similar amendments and, if so, what the amendments should be. This ongoing effort has involved the study of not only the federal amendments and their related Advisory Committee Notes, but also a sampling of information and testimony from the federal amendment process, such secondary materials as the National Conference of Commissioners on Uniform State Laws' "Uniform Rules Relating to The Discovery of Electronically-Stored Information." This effort has also included surveying information relating to the efforts of other states to address ESI or so-called "e-discovery," including other states' amendments to their rules. The vast majority of states have now adopted rule amendments to address ESI.

During the course of its efforts, the Committee has actively solicited the input of a number of stakeholder groups, including the Washington State Association for Justice (formerly the Washington State Trial Lawyers Association), Washington Defense Trial Lawyers, Washington State Association of Municipal Attorneys, Washington Association of Prosecuting Attorneys, WSBA Litigation Section, Superior Court Judges' Association, and various non-profit organizations within the Access to Justice community. The Committee has benefitted from the input of representatives of those groups and from others.

Building on that foundation, in 2009, the WSBA Court Rules and Procedures Committee suggested amendments to CR 26, 33, 34, 37 and 45 to conform, where appropriate, to the 2006 federal ESI amendments. By conforming where possible to the federal rules, the WSBA Court Rules and Procedures Committee believed parties and courts in Washington would be able to refer to and rely on federal authority and scholarship in dealing with e-discovery issues.

At the September 2009 meeting, the Board of Governors declined to recommend the package of proposed changes to CR 26, 33, 34, 37 and 45. The Board of Governors asked the WSBA Court Rules and Procedures Committee to work with the ATJ to develop new proposals addressing ESI for specific rules.

In 2012, these efforts produced a proposed revision to CR 34 submitted by the Board of Governors. That update to CR 34 was ultimately adopted and became effective September 1, 2013. The Washington Civil Rules now address ESI in CR 34 but do not yet address ESI in other rules.

Over the past two years, the Committee has continued to work on other potential rule revisions to address ESI, including potential revisions to CR 33. In 2014, the Committee solicited input from numerous stakeholders and interested groups concerning a potential revision to CR 33. The Committee considered and evaluated the input received before recommending this proposed rule.

The suggested amendment introduces the phrase "electronically stored information" into CR 33(c). The principal purpose of the rule is to acknowledge, clarify, and make explicit that the option to produce business records in response to an interrogatory pursuant to CR 33(c) includes the option to produce ESI. The proposed language is essentially identical to that contained in the corresponding federal rule, FRCP 33(d) – which refers to "business records (including electronically stored information)" – and in the corresponding rules of many other states.

(a)-(b) [Unchanged.]

(c) Option To Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.

Purpose: To eliminate reference to a statute, RCW 4.44.200, repealed in 1979.

(a) Challenges to the Entire Panel. Challenges to the entire panel shall only be sustained for a material departure from the procedures prescribed by law for their selection.

(b) Voir Dire. A voir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable an intelligent exercise of peremptory challenges. The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case. The judge and counsel may then ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case.

(1) If the judge after examination of any juror is of the opinion that grounds for challenge are present, he or she shall excuse that juror from the trial of the case. If the judge does not excuse the juror, any party may challenge the juror for cause.

(2) RCW 4.44.150 through 4.44.200190 shall govern challenges for cause.

(1) Determination. The challenge may be excepted to by the adverse party for insufficiency and, if so, the court shall determine the sufficiency thereof, assuming the facts alleged therein to be true. The challenge may be denied by the adverse party and, if so, the court shall try the issue and determine the law and the facts.

(2) Trial of Challenge. Upon trial of a challenge, the Rules of Evidence applicable to testimony offered upon the trial of an ordinary issue of fact shall govern. The juror challenged, or any other person otherwise competent, may be examined as a witness by either party. If a challenge be determined to be sufficient, or if found to be true, as the case may be, it shall be allowed, and the juror to whom it was taken excluded; but if not so determined or found otherwise, it shall be disallowed.

(1) Peremptory Challenges Defined. A peremptory challenge is an objection to a juror for which there is no reason given, but upon which the court shall exclude the juror. In prosecutions for capital offenses the defense and the state may challenge peremptorily 12 jurors each; in prosecution for offenses punishable by imprisonment in the state Department of Corrections 6 jurors each; in all other prosecutions, 3 jurors each. When several defendants are on trial together, each defendant shall be entitled to one challenge in addition to the number of challenges provided above, with discretion in the trial judge to afford the prosecution such additional challenges as circumstances warrant.

(2) Peremptory Challenges—How Taken. After prospective jurors have been passed for cause, peremptory challenges shall be exercised alternately first by the prosecution then by each defendant until the peremptory challenges are exhausted or the jury accepted. Acceptance of the jury as presently constituted shall not waive any remaining peremptory challenges to jurors subsequently called.

Purpose: To remove the provisions allowing for citizen complaints.

In 1996, the District Court and Municipal Judges' Association (DCMJA) proposed deleting the citizen complaint procedure from CrRLJ 2.1 due to the association's serious concerns that the rule violates the separation of powers doctrine. 4B Wash. Prac., Rules Practice CrRLJ 2.1 (7th ed.). That proposal was not successful. In 2012, the DCMJA again expressed its view to the Washington State Supreme Court that CrRLJ 2.1(c) should be repealed in its entirety due to the separation of powers doctrine.

Recently, in State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012), the Washington Supreme Court relied on the principles of the separation of powers doctrine to interpret a state statute as being directory rather than mandatory. In particular, the court explained that the separation of powers doctrine recognizes that the prosecuting attorney's core function is the exercise of discretion in making charging decisions. This discretion may not be usurped, or encroached on, by the other two branches of the government. The majority opinion explains:

Although the legislature can fashion the duties of prosecuting attorneys, the legislature cannot interfere with the core functions that make them "prosecuting attorneys" in the first place. See State ex rel. Johnston v. Melton, 192 Wash. 379, 388, 73 P.2d 1334 (1937) ("In naming the county officers in § 5, Article 11 of the constitution, the people intended that those officers should exercise the powers and perform the duties then recognized as appertaining to the respective offices which they were to hold."); State ex rel. Hamilton v. Troy, 190 Wash. 483, 485–87, 68 P.2d 413 (1937) (legislature cannot change official title of prosecuting attorneys); Nelson v. Troy, 11 Wash. 435, 443, 39 P. 974 (1895) (noting that "the duties devolving upon a prosecuting attorney of a county are very dissimilar to those of the county coroner or assessor"). Without broad charging discretion, a prosecuting attorney would cease to be a "prosecuting attorney" as intended by the state constitution. This would be true even if some modicum of charging discretion remained. See Melton, 192 Wash. at 390, 73 P.2d 1334 ("If these constitutional offices can be stripped of a portion of the inherent functions thereof, they can be stripped of all such functions … and the will of the framers of the constitution thereby thwarted."). The legislature is free to establish statutory duties that do not interfere with core prosecutorial functions, see, e.g., Callahan v. Jones, 200 Wash. 241, 247, 93 P.2d 326 (1939) (upholding statutory limit on the private practice of law by prosecuting attorneys); Jacoby, supra, at xx (describing various potential duties of prosecuting attorneys beyond engaging in criminal litigation); RCW 36.27.020 (establishing various duties of prosecuting attorneys), but the legislature cannot interfere with the fundamental and inherent charging discretion of prosecuting attorneys, including discretion over the filing of available special allegations.

The inherent charging discretion of prosecuting attorneys is fundamental and cannot be ceded to the legislative branch by consent. Although the Pierce County prosecuting attorney defends the statutes challenged in this case by arguing (in part) that the legislature has the authority to eliminate all meaningful prosecutorial discretion, any attempt by the legislature to do so would violate the separation of powers doctrine and article XI, section 5, notwithstanding the prosecutor's apparent consent. See Troy, 190 Wash. at 487, 68 P.2d 413 ("While we are reluctant to thwart the wishes of the prosecuting attorneys who earnestly desire the proposed change, it is plainly our duty to hold that the legislature … had no power to make it …."). Although a violation of the separation of powers doctrine "accrues directly to the branch invaded," Carrick, 125 Wash.2d at 136, 882 P.2d 173 (emphasis added), the underlying purpose of the doctrine is "'the protection of individuals,'" Guillen, 144 Wash.2d at 731, 31 P.3d 628 (emphasis added) (quoting New York, 505 U.S. at 181, 112 S.Ct. 2408). Thus, we have reasoned that the "'division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment.'" Id. (emphasis omitted) (quoting New York, 505 U.S. at 181, 112 S.Ct. 2408). Although "a long history of cooperation between the branches" in any given context might show that no violation has occurred, Carrick, 125 Wash.2d at 136, 882 P.2d 173, one branch cannot simply consent to a separation of powers violation by another branch. This is especially true regarding a fundamental executive power to be exercised by locally elected officials; such officials cannot cede their inherent authority in order to deflect accountability to voters or when otherwise convenient.

In sum, because of the open-ended nature of the challenged statutes, the legislature's broad and underlying acknowledgment of prosecutorial charging discretion, and the unconstitutionality of mandatory charging statutes, we are confident that in enacting RCW 9.94A.835, .836, and .837, the legislature had no intention of imposing enforceable charging requirements on prosecuting attorneys.

State v. Rice, 74 Wn.2d 884, 905-07, 279 P.3d 849, 859-60 (2012).

In light of the decision in Rice, the Court should reconsider the constitutionality of the citizen complaint procedure. The court rule encroaches upon fundamental executive power to be exercised by the locally-elected prosecutors. The citizen complaint is a holdover from the past and no longer effectively serves its original purpose. While territorial statutes allowed virtually anyone to bring a criminal complaint, those statutes have been repealed and replaced with a modern system of public, elected prosecutors. See, e.g., Laws of 1854, 1st sess. § 1, at 100; Laws of 1854, 1st sess. § 11, at 104. In 1981, the Legislature enacted RCW 43.10.232, which provides that when a prosecutor declines to file charges for any reason, another executive branch official, the attorney general, can step in and prosecute if appropriate. This statute fills the gap created by the repeal of the private prosecutor statutes, by providing a victim who is dissatisfied with the local elected prosecutor's handling of a case a path to prosecution. For example, in State v. Howard, 106 Wn.2d 39, 40-41, 722 P.2d 783 (1985), the murder victim's family contacted the Governor to request his intervention after the county prosecutor concluded there was insufficient evidence to prosecute the suspected murder. In contrast, the citizen complaint procedure of CrRLJ 2.1(c) applies only to misdemeanors and gross misdemeanors and provides no mechanism to force an elected prosecutor to proceed with a prosecution. A district court cannot appoint a special prosecutor if the prosecuting attorney refuses to go forward on the citizen complaint. See Ladenburg v. Campbell, 56 Wn. App. 701, 784 P.2d 1306 (1990). RCW 43.10.232 provides a more effective, and constitutional, mechanism for cases where a local elected prosecutor refuses to act.

(1) Initiation. Except as otherwise provided in this rule, all criminal proceedings shall be initiated by a complaint.

(2) Nature. The complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting authority. Allegations made in one count may be incorporated by reference in another count. It may be alleged that the means by which the defendant committed the offense are unknown or that he or she committed it by one or more specified means. The complaint shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the complaint or for reversal of a conviction if the error or omission did not mislead the defendant to his or her prejudice.

(3) Contents. The complaint shall contain or have attached to it the following information when filed with the court:

(i) the name, address, date of birth, and sex of the defendant;

(ii) all known personal identification numbers for the defendant, including the Washington driver's operating license (DOL) number, the state criminal identification (SID) number, the state criminal process control number (PCN), the JUVIS control number, and the Washington Department of Corrections (DOC) number.

(1) Issuance. Whenever a person is arrested or could have been arrested pursuant to statute for a violation of law which is punishable as a misdemeanor or gross misdemeanor the arresting officer, or any other authorized peace officer, may serve upon the person a citation and notice to appear in court. Criminal citations shall be on a form entitled "Criminal Citation" prescribed by the Administrative Office of the Courts. Citation forms prescribed by the Administrative Office of the Courts are presumed valid.

(2) Release Factors. In determining whether to release the person or to hold him or her in custody, the peace officer shall consider the following factors:

(i) whether the person has identified himself or herself satisfactorily;

(ii) whether detention appears reasonably necessary to prevent imminent bodily harm to himself, herself, or another, or injury to property, or breach of the peace;

(iii) whether the person has ties to the community reasonably sufficient to assure his or her appearance or whether there is substantial likelihood that he or she will refuse to respond to the citation and notice; and

(iv) whether the person previously has failed to appear in response to a citation and notice issued pursuant to this rule or to other lawful process.

(3) Contents. The citation and notice to appear shall include or have attached to it:

(i) the name of the court and a space for the court's docket, case or file number;

(ii) the name, address, date of birth, and sex of the defendant; and all known personal identification numbers for the defendant, including the Washington driver's operating license (DOL) number, the state criminal identification (SID) number, the state criminal process control number (PCN), the JUVIS control number, and the Washington Department of Corrections (DOC) number;

(iii) the date, time, place, numerical code section, description of the offense charged, the date on which the citation was issued, and the name of the citing officer;

(iv) the time and place the person is to appear in court, which may not exceed 20 days after the date of the citation and notice, but which need not be a time certain.

(4) Certificate. The citation and notice shall contain a form of certificate by the citing official that he or she certifies, under penalties of perjury, as provided by RCW 9A.72.085, and any law amendatory thereto, that he or she has probable cause to believe the person committed the offense charged contrary to law. The certificate need not be made before a magistrate or any other person.

(5) Initiation. When signed by the citing officer and filed with a court of competent jurisdiction, the citation and notice shall be deemed a lawful complaint for the purpose of initiating prosecution of the offense charged therein.

Purpose: CrRLJ 4.8(c) mistakenly refers to CRLJ 45(c) as the rule governing service. In fact, CRLJ 45(b) is the correct reference.

(a) Issuance for Witnesses. The defendant and the prosecuting authority may subpoena witnesses necessary to testify at a scheduled hearing or trial. The subpoena may only be issued by a judge, court commissioner, clerk of the court, or by a party's lawyer. If a party's lawyer issues a subpoena, a copy shall be filed with the court. If the subpoena is for a witness outside the county or counties contiguous with it, the judge must approve the subpoena.

(1) Upon application of either party, the court may issue a subpoena duces tecum, commanding the person to whom it is directed to produce books, papers, documents or other objects designated in it. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may, upon their production, permit the books, papers, documents or objects, or portions of them, to be inspected by the parties and their lawyers.

(2) On motion made promptly the court may quash or modify the subpoena duces tecum if compliance would be illegal, unreasonable or oppressive.

(c) Service. A subpoena may be directed for service within their jurisdiction to the sheriff of any county or to any peace officer of any municipality in which the witness may be, or it may be served as provided in CRLJ 45(cb), or it may be served by first-class mail, postage prepaid, sent to the witness' last known address. Service by mail shall be deemed complete upon the third day following the day upon which the subpoena was placed in the mail.

(1) When personal service is made by someone other than a sheriff or peace officer, proof shall be by affidavit or by certification under RCW 9A.72.085 or any law amendatory thereof.

(2) Proof of service by mail may be by affidavit or certification, under RCW 9A.72.085 or any law amendatory thereof, of the person who mailed the papers, or by written acknowledgment of service.

(1) If at any time during the proceedings it is brought to the court's attention that a party's lawyer has abused the power to issue subpoenas, the court may impose upon the lawyer such terms as are just.

(2) No subpoena shall be the basis for a material witness warrant or a contempt of court citation unless there is proof of personal receipt.

Purpose: The current formulation of the CrRLJ 7.2 does not require the court to advise a criminal defendant of his or her right to appeal or right to collateral attack a judgment when the defendant has pled guilty. However, a criminal defendant may appeal or collaterally attack a judgment and sentence based on a guilty plea. While the right to appeal may be limited after a guilty plea, it is not foreclosed, and nothing about a guilty plea prevents the defendant from collaterally attacking the judgment and sentence, particularly where the defendant claims he or she received ineffective assistance of counsel, that he or she was not properly advised on the direct consequences of the plea, or that the plea was involuntary. RCW 10.73.110 provides, "At the time judgment and sentence is pronounced in a criminal case, the court shall advise the defendant of the time limit specified in RCW 10.73.090 and 10.73.100." In In re Becker, 143 Wn.2d 491 (2000), the Washington Supreme Court questioned the wisdom of the current wording of the rule and the fact that it directly conflicts with RCW 10.73.110. The Supreme Court stated:

The Court of Appeals relied upon RCW 10.73.090's time bar and held notifications or time limits required by RCW 10.73.110 are superseded by CrRLJ 7.2(b) because defendants who plead guilty are exempted from the notification requirements of RCW 10.73.090. However, we do not reach this issue because, procedurally, this case is governed by our interpretation of RCW 10.73.140. Although we decide this case on the basis of prohibited successive collateral attacks, the facts of this case call into question the wisdom of CrRLJ 7.2(b). The statute makes no distinction for requiring notification on the time limits for collateral attacks. While we do not decide the issue of whether this is procedural or substantive, little basis exists for the difference between the court rule and the statute. The better practice is to provide the statutory notification in all cases.

Id. at 495 n.3. There is no principled basis for not advising all misdemeanor defendants of their rights to appeal and their statutory right to collaterally attack their convictions, and the time limit that applies to such attacks.

The proposed rule is not intended to expand the right to appeal. Courts should therefore advise defendants who have pled guilty that their right to appeal is limited. A parallel change is proposed to CrR 7.2, so that CrR 7.2 and CrRLJ 7.2 are consistent with each other.

(a) Generally. The court shall state the precise terms of the sentence, which shall include credit for all time spent in custody in connection with the offense.

(b) Procedure at Time of Sentencing. The court shall, immediately after sentencing, unless the judgment and sentence are based on a plea of guilty, advise the defendant: (1) of the right to appeal the conviction pursuant to the RALJ or CrRLJ 9.1; (2) that unless a notice of appeal is filed in the court of limited jurisdiction within 30 days after the entry of the judgment and sentence or order appealed from, the right to appeal is waived; (3) that the notice of appeal must be served on all other parties; (4) that the court clerk will, if requested by the defendant appearing without a lawyer, supply a notice of appeal form; (5) of the defendant's right to a lawyer on appeal, and, if unable to pay the costs thereof, to have a lawyer appointed and portions of the trial record necessary for review prepared at public expense for an appeal; and (6) of the time limits on the right to collateral attack imposed by RCW 10.73.090 and .100. If this advisement follows a guilty plea, the court shall advise the defendant that the right to appeal is limited. These proceedings shall be made a part of the record.

(c) Sentence. Before imposing sentence, the court shall afford the defendant, and the prosecuting authority, an opportunity to make a statement and to present information in extenuation, mitigation, or aggravation of punishment.

(d) Record. A record of the sentencing proceedings shall be made. The sentencing and judgment records of the courts of limited jurisdiction shall be preserved in perpetuity, either in an electronic or hard copy format. "Hard copy format" may include microfilm, microfiche, or a paper copy. The record of the sentencing proceedings shall be prima facie evidence of a valid conviction in subsequent proceedings in courts of limited jurisdiction and in superior court.

(e) Judgment and Sentence

(1) An electronic judgment and sentence shall be prescribed by the Administrator for the Courts in conjunction with the Judicial Information System Committee (JISC).

(2) A non-electronic judgment and sentence form shall be prescribed by the Administrator for the Courts in conjunction with the Supreme Court Pattern Forms Committee.

(3) Notwithstanding any other statute or rule to the contrary, each judgment and sentence form, either electronic or hard copy, shall be preserved by the court in perpetuity.

Purpose: The WSBA Court Rules and Procedures Committee proposed changes to a parallel rule, CrRLJ 7.2. One of the changes would add language clarifying that the court must advise a defendant following a guilty plea that the right to appeal is limited. CrR 7.2 lacks this language. This proposal adds the same language to CrR 7.2 to make it and CrRLJ 7.2 consistent. The added language is not intended to expand the right to appeal or collaterally attack judgments or sentences.

(a) Generally. The court shall state the precise terms of the sentence and shall assure that the record accurately reflects all time spent in custody in connection with the offense or behavioral incident for which sentence is imposed. Pending such action the court may release or commit the defendant, pursuant to rule 3.2.

(b) Procedure at Time of Sentencing. The court shall, immediately after sentencing, advise the defendant: (1) of the right to appeal the conviction; (2) of the right to appeal a sentence outside the standard sentence range; (3) that unless a notice of appeal is filed within 30 days after the entry of the judgment or order appealed from, the right to appeal is irrevocably waived; (4) that the superior court clerk will, if requested by the defendant appearing without counsel, supply a notice of appeal form and file it upon completion by the defendant; (5) of the right, if unable to pay the costs thereof, to have counsel appointed and portions of the trial record necessary for review of assigned errors transcribed at public expense for an appeal; and (6) of the time limits on the right to collateral attack imposed by RCW 10.73.090 and .100. If this advisement follows a guilty plea, the court shall advise the defendant that the right to appeal is limited. These proceedings shall be made a part of the record.

(c) Record. A verbatim record of the sentencing proceedings shall be made.

(d) Judgment and Sentence. For every felony sentencing, the clerk of the court shall forward a copy of the uniform judgment and sentence to the Sentencing Guidelines Commission. The uniform judgment and sentence shall be a form prescribed by the Administrator for the Courts in conjunction with the Supreme Court Pattern Forms Committee. If the sentence imposed departs from the applicable standard sentence range, the court's written findings of fact and conclusions of law shall also be supplied to the Commission.