WSR 18-01-034

RULES OF COURT

[December 6, 2017]

The Washington State Bar Association, having recommended the suggested amendments to IRLJ 3.3—Procedure at Contested Hearing and RALJ 9.2—Entry of Decision and Enforcement Judgment, 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 suggested 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 2018.

(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, 2018. 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 December, 2017.

Washington State Bar Association.

Bradford E. Furlong, President, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

Shannon Kilpatrick, Chair, WSBA Court Rules and Procedures Committee, Washington State Bar Association, 1325 4th Ave., Ste. 600, Seattle, WA 98101-2539 (telephone 425-388-7365)

Kevin Bank, WSBA Assistant General Counsel, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 206-733-5909

The purpose of the suggested amendment to IRLJ 3.3 is to codify in the IRLJ the currently accepted practice that a defendant need not personally appear at a contested infraction hearing when the defendant is represented by an attorney. The current practice is supported by Civil Rule 70.1(a), which permits an attorney "admitted to practice in this state" to "appear for a party by filing a notice of appearance." The suggested amendment to the IRLJ seeks to clarify that absent special circumstances, when an attorney appears for a defendant, the defendant is not failing to appear.

The language in the suggested amendment is a culmination of a multi-year process that began in 2015. The initial language that was presented to the IRLJ Subcommittee and Committee for review was sent to stakeholders for input on the proposed change. In light of the feedback that was received, the IRLJ Subcommittee redrafted the language to what is included here. The redraft was done with the input of six infraction practitioners. Even though stakeholders had been involved in the redrafting process, the updated language then was re-circulated to stakeholders, including the Washington Association of Prosecuting Attorneys, Washington Defenders' Association, a representative of the District Court Judge's Association, and many individual infraction defense attorneys and prosecutors.

The only objections received from stakeholders were concerns that prosecutors would be forced to resort to serving a subpoena on the defendant if the prosecutor wanted to call the defendant as a witness and this could lead to delays. The suggested amendment addresses this concern by requiring a lawyer to expressly include a waiver of defendant's presence in his/her notice of appearance. The prosecutor will then be on notice of the defendant's absence and can opt to subpoena the defendant if the prosecutor needs the defendant's presence.

The suggested amendment also expressly acknowledges that there are some scenarios where the defendant's presence may still be required, notwithstanding the waiver of presence. The last clause of the last sentence in the suggested amendment to IRLJ 3.3(b) provides that the defendant must still personally appear if "the defendant's presence is otherwise required by statute or these court rules." It was felt that this more general reference to other court rules and statutes was better than attempting to list all of the specific court rules and statutes that could require a defendant's presence. This way, the rule would not need to be amended any time the statutes or court rules were changed, deleted, or renumbered or other court rules and statutes were added that affected this proposed language.

The Board of Governors ("BOG") considered the proposed amendment to IRLJ 3.3(b) at its March 9, 2017 meeting and voted not to accept the proposed amendment as submitted, and instead to remand it to the Committee to consider making one change. The BOG suggested to substitute "these" with "the" in the last sentence of the proposed amended language.

The Committee met on May 15, 2017, and voted unanimously to adopt the BOG's recommended change.

The BOG met on July 28, 2017, and voted to accept the proposed amended language. 

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested rule amendment.

(a) Generally. The court shall conduct the hearing for contesting the notice of infraction on the record in accordance with applicable law.

(b) Representation by Lawyer. At a contested hearing, the plaintiff shall be represented by a lawyer representative of the prosecuting authority when prescribed by local court rule. The defendant may be represented by a lawyer. If the defendant is represented by a lawyer, and the lawyer has filed a notice of appearance, including a waiver of the defendant's presence, the defendant need not personally appear at the contested hearing unless the defendant's presence is otherwise required by statute or these the court rules.

Washington State Bar Association.

Bradford E. Furlong, President, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

Shannon Kilpatrick, Chair, WSBA Court Rules and Procedures Committee, Washington State Bar Association, 1325 4th Ave., Ste. 600, Seattle, WA 98101-2539 (telephone 425-388-7365)

Kevin Bank, WSBA Assistant General Counsel, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 206-733-5909

To clarify in the RALJ how and when a mandate issues after cases are appealed to the Superior Court, and the procedure for notifying the court of limited jurisdiction of the issuance of the mandate. The proposed amendment to RALJ 9.2 is designed to provide better guidance to the Superior Court clerks about how mandates should be processed once the Superior Court issues its decision in a RALJ appeal.

The current language of RALJ 9.2 provides minimal guidance on how to process mandates, leading to inconsistency among jurisdictions and confusion among practitioners. If adopted, the proposed amendment will help standardize the RALJ appeal process to more closely mirror that of the Court of Appeals. The proposed language is taken almost verbatim from RAP 12.5 discussing the mandate process in the Court of Appeals. The proposed amendment will also provide more specific guidance to the Superior Court clerks in dealing with mandates in criminal cases.

The WSBA Court Rules and Procedures Committee contacted stakeholders, including the District and Municipal Court Judges' Association, Washington Association of Prosecuting Attorneys; Washington Defender Association, and the Washington State Municipal Attorneys. There was broad support for the proposed amendment among stakeholders and no opposition to the proposal.

The Board of Governors reviewed the proposed amendment to RALJ 9.2 in July 2017 and approved its submission to the Court.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested rule amendment.

(a) [No Change]

(c) (b) Transmittal of Superior Court Mandate. The clerk of the superior court shall transmit written notification of the superior court's decision issue the mandate to the court of limited jurisdiction and to each party not earlier than 30 days nor later than 60 days from after the filing of the decision in superior court, unless a party files a timely notice for discretionary review.

(e) (c) Entry of Decision in Court of Limited Jurisdiction. The court of limited jurisdiction shall comply with the mandate of the superior court and shall enter the judgment for enforcement in the court of limited jurisdiction.

(f) (d) Enforcement of Judgment in Court of Limited Jurisdiction. Except as otherwise provided in these rules, enforcement of a judgment following termination of appeal shall be in the court of limited jurisdiction.

(g) (e) Registration of Judgment in Superior Court. A judgment entered in the court of limited jurisdiction may be registered and enforced in the superior court as authorized by law.