The King County Department of Defense, the Washington State Office of Public Defense, the Washington Defender Association, and the Snohomish County Office of Public Defense, having recommended the suggested amendments to CrR 8.3—Dismissal and CrRLJ 8.3—Dismissal, and the Court having approved the suggested amendments for publication;

(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 2024.

(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, 2024. 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.

A. Name of Proponent: The King County Department of Defense, the Washington State Office of Public Defense, the Washington Defender Association and the Snohomish County Office of Public Defense

The proposed amendment to CrR 8.3 and CrRLJ 8.3, Dismissal, aims to ensure that judges throughout Washington are empowered to dismiss cases in the furtherance of justice. For too long, Washington Courts have been constrained by the Washington State Supreme Court's unduly narrow interpretation of CrR 8.3(b) in State v. Starrish. The Court should now amend CrR 8.3(b) to allow for trial courts to dismiss an action in the "furtherance of justice" and recognize, in the words of Justice Utter, that courts are not simply "passive instruments of prosecutorial policies." State v. Starrish, 86 Wash. 2d 200, 214 (1975).

A broader dismissal rule will ensure that "the broad discretion of prosecutors and the rigidity of aggravated sentencing laws will not combine to reduce judges to the status of mere clerks assigned to stamp and file the decisions of other agencies of government." Id. As Justice Utter warned, CrR 8.3(b) "is too important to be so tightly confined as the majority's decision renders it. It should be read as being as broad and flexible as the principles of justice to which it refers, and against which exercise of judicial power should always be measured." Id.

This Court can and should authorize courts to use CrR/CrRLJ 8.3(b) as it was intended and as the demands of justice require. In its June 4, 2020 letter to the legal community, the Court wrote that we:

continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will.

Other jurisdictions provide judges with greater discretion to dismiss a criminal case in the furtherance of justice. These dismissal authorities vary in terms of procedural details—such as whether they require a motion from the defense, a written entry as to reason into the record, or notice to all parties—but they all allow for broader discretion than Washington for courts to dismiss charges. One court has explicitly rejected Washington's narrow approach to CrR 8.3. See State v. Brumage, 435 N.W. 2d 337, 330 (Iowa 1989).

a) Dismissal on Motion and Notice. The court, on notice to all parties, may dismiss a criminal action on its own motion or on motion of any party on either of the following grounds:

(1) for unnecessary delay in presenting the charge to the grand jury or if an information is not filed within the time period prescribed by Rule 7(f), or for unnecessary delay in bringing the defendant to trial, or

(2) for any other reason if the court concludes that dismissal will serve the ends of justice and the effective administration of the court's business.

In Ohio, Crim R. 48(B) provides that: "[i]f the court over objection of the state dismisses an indictment, information, or complaint, it shall state on the record its findings of fact and reasons for the dismiss". Ohio Crim. R. 48. The Ohio Supreme Court has held that Crim.R. 48(B) "does not limit the reasons for which a trial judge might dismiss a case, and we are convinced that a judge may dismiss a case pursuant to Crim.R. 48(B) if a dismissal serves the interests of justice." State v. Busch, 76 Ohio St.3d at 615 (1996). In Iowa, trial courts are vested with authority to dismiss criminal charges under Rule of Criminal Procedure 27(1), which provides:

The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

The Iowa Supreme court interpreted this rule in State v. Brumage, 435 N.W.2d 337, 339–41 (Iowa 1989), and found that "[a] trial court's authority to dismiss under Rule 27(1) is limited by the general phrase "in the furtherance of justice… We hold that our trial court should dismiss only after considering the substantive rights of the defendant and the interests of the state."

(b) On Motion of Court. The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the state supreme court and appear in the Register pursuant to the requirements of RCW 34.08.040.

	For the Court

	Gonzalez, C.J.
	CHIEF JUSTICE