WSR 16-23-015

RULES OF COURT

[November 2, 2016]

The Court Management Council, having recommended the proposed amendments to GR 17—Facsimile Transmission, and GR 30—Electronic Filing and Service, and the Court having considered the amendments thereto;

Now, therefore, it is hereby

ORDERED:

(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.

(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, 2017. 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 2nd day of November, 2016.

 

(A) Name of Proponent: Court Management Council

(B) Spokesperson:

Renee Townsley, Administrator/Clerk

Court of Appeals, Division III

Callie T. Dietz, State Court Administrator

The Court Management Council (CMC), created by Supreme Court Order 25700-B-217 as a statewide forum for enhancing the administration of the courts, has suggested changes to modernize GR 17 (Facsimile Transmission) and GR 30 (Electronic Filing).

The CMC suggested changes to these rules were endorsed by the Board for Judicial Administration (BJA) at their June 17, 2016 meeting.

The recommendations are the product of a CMC subcommittee that included the Clerk of the Supreme Court, a Clerk/Administrator from the Court of Appeals, two county clerks, and a municipal court administrator.

The changes would largely conform rules to current practice in many jurisdictions.

The CMC anticipates that fax filing will be obsolete in the future. In the meantime, GR 17 is still needed. The CMC proposes minor changes to GR 17 which was adopted in 1993:

(D) Hearing: Not recommended.

(E) Expedited Consideration: Not requested.

(a) Facsimile Transmission Authorized; Exceptions.

(1) Except as set forth in subsection (a)(5), the clerks of the court may accept for filing documents sent directly to the clerk or to another by electronic facsimile (fax) transmission. A fax copy shall constitute an original for all court purposes. The attorney or party sending the document via fax to the clerk or to another shall retain the original signed document until 60 days after completion of the case. Documents to be transmitted by fax shall bear the notation: "SENT on _______________ (DATE) VIA FAX FOR FILING IN COURT.

(2) If a document is transmitted by facsimile to another for filing with a court, by local court rule the person responsible for the filing must may be required to attach an original affidavit as the last page of the document. The affidavit must bear the name of the court, case caption, case number, the name of the document to be filed, and a statement that the individual signing the affidavit has examined the document, determined that it consists of a stated number of pages, including the affidavit page, and that it is complete and legible. The affidavit shall bear the original signature, the printed name, address, phone number and facsimile number of the individual who received the document for filing.

(3) The clerk of the court may use fax transmission to send any document requiring personal service to one charged with personally serving the document. Notices and other documents may be transmitted by the clerk to counsel of record by fax.

(4) Clerks may charge reasonable fees to be established by the Office of the Administrator for the Courts Administrative Office of the Courts, for receiving, collating, and verifying fax transmissions.

(5) Without prior approval of the clerk of the receiving court, facsimile transmission is not authorized for judge's working copies (courtesy copies) or for those documents for which a filing fee is required. Original wills and negotiable instruments may not be filed by facsimile transmission.

(6) Facsimile Machine Not Required. Nothing in this rule shall require an attorney or a clerk of a court to have a facsimile machine.

(b) Conditions.

(1) Documents transmitted to the clerk by fax shall be letter size (8-1/2 by 11 inches). Unless otherwise provided by local court rule, Ddocuments over 10 20 pages in length may not be filed by fax without prior approval of the clerk.

(2) Any document transmitted to the clerk by fax must be accompanied by a fax transmittal sheet in a format prescribed by the court. The form must include the case number (if any), case caption, number of pages, the sender's name, the sender's voice and facsimile telephone numbers, and fax fee remittance certification. Transmittal sheets are not considered legal filings.

(3) A document transmitted directly to the clerk of the court shall be deemed received at the time the clerk's fax machine electronically registers the transmission of the first page, regardless of when final printing of the document occurs, except that a document received after the close of normal business hours shall be considered received the next judicial day. If a document is not completely transmitted, it will not be considered received. A document transmitted to another for filing with the clerk of the court will be deemed filed when presented to the clerk in the same manner as an original document.

(4) Court personnel will not verify receipt of a facsimile transmission by telephone or return transmission and persons transmitting by facsimile shall not call the clerk's office to verify receipt.

(5) (6) The clerk shall develop procedures for the collection of fax service fees for those documents transmitted directly to the clerk. Nonpayment of the fax service fee shall not affect the validity of the filing.

(6) (7) Agencies or individuals exempt from filing fees are not exempt from the fax service fees for documents transmitted directly to the clerk. [Adopted effective September 1, 1993.]

(a) Definitions.

(1) "Digital signature" is defined in RCW 19.34.020.

(2) "Electronic Filing" is the electronic transmission of information to a court or clerk for case processing.

(3) "Electronic Document" is an electronic version of information traditionally filed in paper form, except for documents filed by facsimile which are addressed in GR 17. An electronic document has the same legal effect as a paper document.

(4) "Electronic Filing Technical Standards" are those standards, not inconsistent with this rule, adopted by the Judicial Information System committee to implement electronic filing.

(5) "Filer" is the person whose user ID and password are used to file an electronic document.

Comment: The form of "digital signature" that is acceptable is not limited to the procedure defined by chapter 19.34 RCW, but may include other equivalently reliable forms of authentication as adopted by local court rule or general.

(b) Electronic filing authorization, exception, service, and technology equipment.

(1) The clerk may accept for filing an electronic document that complies with the Court Rules and the Electronic Filing Technical Standards.

(2) A document that is required by law to be filed in non-electronic media may not be electronically filed.

Comment: Certain documents are required by law to be filed in non-electronic media. Examples are original wills, certified records of proceedings for purposes of appeal, negotiable instruments, and documents of foreign governments under official seal.

(3) Electronic Transmission from the Court. The court or clerk may electronically transmit notices, orders, or other documents to all attorneys as authorized under local court rule, or to a party who has filed electronically or has agreed to accept electronic documents from the court, and has provided the clerk the address of the party's electronic mailbox. It is the responsibility of all attorneys and the filing or agreeing party to maintain an electronic mailbox sufficient to receive electronic transmissions of notices, orders, and other documents.

(4) A court may adopt a local rule that mandates electronic filing by attorneys and/or electronic service of documents on attorneys for parties of record, provided that the attorneys are not additionally required to file paper copies except for those documents set forth in (b)(2). Electronic service may be made either through an electronic transmission directly from the court (where available) or by a party's attorney. Absent such a local rule, parties may electronically serve documents on other parties of record. only by agreement. The local rule shall not be inconsistent with this Rule and the Electronic Filing Technical Standards, and the local rule shall permit paper filing and/or service upon a showing of good cause. Electronic filing and/or service should not serve as a barrier to access.

Comment: When adopting electronic filing requirements, courts should refrain from requiring counsel to provide duplicate paper pleadings as "working copies" for judicial officers.

(c) Time of Filing, Confirmation, and Rejection.

(1) An electronic document is filed when it is received by the clerk's designated computer during the clerk's business hours; otherwise the document is considered filed at the beginning of the next business day.

(2) The clerk shall may issue confirmation to the filing party that an electronic document has been received.

(3) The clerk may reject a document that fails to comply with applicable electronic filing requirements. The clerk must notify the filing party of the rejection and the reason therefor.

(d) Authentication of Electronic Documents.

(1) Procedures

(A) A person filing an electronic document must have received a user ID and password from a government agency or a person delegated by such agency in order to use the applicable electronic filing service.

Comment: The committee encourages local clerks and courts to develop a protocol for uniform statewide single user ID's and passwords.

(B) All electronic documents must be filed by using the user ID and password of the filer.

(C) A filer is responsible for all documents filed with his or her user ID and password. No one shall use the filer's user ID and password without the authorization of the filer.

(2) Signatures

(A) Attorney Signatures. An electronic document which requires an attorney's signature may be signed with a digital signature or signed in the following manner:

s/ John Attorney

State Bar Number 12345

ABC Law Firm

123 South Fifth Avenue

Seattle, WA 98104

Telephone: (206) 123-4567

E-mail: John.Attorney@lawfirm.com

(B) Non-attorney signatures. An electronic document which requires a non-attorney's signature and is not signed under penalty of perjury may be signed with a digital signature or signed in the following manner:

s/ John Citizen

123 South Fifth Avenue

Seattle, WA 98104

Telephone: (206) 123-4567

E-mail: John.Citizen@email.com

(C) Non-attorney signatures on documents signed under penalty of perjury. Except as set forth in (d)(2)(D) of this rule, if the original document requires the signature of a non-attorney signed under penalty of perjury, the filer must either:

(i) Scan and electronically file the entire document, including the signature page with the signature, and maintain the original signed paper document for the duration of the case, including any period of appeal, plus sixty (60) days thereafter; or

(ii) Ensure the electronic document has the digital signature of the signer.

(D) Law enforcement officer signatures on documents signed under penalty of perjury.

(i) A citation or notice of infraction initiated by an arresting or citing officer as defined in IRLJ 1.2(j) and in accordance with CrRLJ 2.1 or IRLJ 2.1 and 2.2 is presumed to have been signed when the arresting or citing officer uses his or her user id and password to electronically file the citation or notice of infraction.

(ii) Any document initiated by a law enforcement officer is presumed to have been signed when the officer uses his or her user ID and password to electronically submit the document to a court or prosecutor through the Statewide Electronic Collision & Traffic Online Records application, the Justice Information Network Data Exchange, or a local secured system that the presiding judge designates by local rule. Unless otherwise specified, the signature shall be presumed to have been made under penalty of perjury under the laws of the State of Washington and on the date and at the place set forth in the citation.

(E) Multiple signatures. If the original document requires multiple signatures, the filer shall scan and electronically file the entire document, including the signature page with the signatures, unless:

(i) The electronic document contains the digital signatures of all signers; or

(ii) For a document that is not signed under penalty of perjury, the signator has the express authority to sign for an attorney or party and represents having that authority in the document. If any of the non-digital signatures are of non-attorneys, the filer shall maintain the original signed paper document for the duration of the case, including any period of appeal, plus sixty (60) days thereafter.

(F) Court Facilitated Electronically Captured Signatures. An electronic document that requires a signature may be signed using electronic signature pad equipment that has been authorized and facilitated by the court. This document may be electronically filed as long as the electronic document contains the electronic captured signature.

(3) An electronic document filed in accordance with this rule shall bind the signer and function as the signer's signature for any purpose, including CR 11. An electronic document shall be deemed the equivalent of an original signed document if the filer has complied with this rule. All electronic documents signed under penalty of perjury must conform to the oath language requirements set forth in RCW 9A.72.085 and GR 13.

(e) Filing fees, electronic filing fees.

(1) The clerk is not required to accept electronic documents that require a fee. If the clerk does accept electronic documents that require a fee, the local courts must develop procedures for fee collection that comply with the payment and reconciliation standards established by the Administrative Office of the Courts and the Washington State Auditor.

(2) Anyone entitled to waiver of non-electronic filing fees will not be charged electronic filing fees. The court or clerk shall establish an application and waiver process consistent with the application and waiver process used with respect to non-electronic filing and filing fees.

[Adopted effective September 1, 2003; December 4, 2007; September 1, 2011; December 9, 2014.]