WSR 13-23-030

RULES OF COURT

[November 7, 2013]

The King County Prosecuting Attorney having recommended the adoption of the proposed amendments to RALJ 5.4—Loss or Damage of Electronic Record and RALJ 11.7—Application of Other Court Rules, 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 web sites 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 7th day of November,.

PURPOSE: The Office of the King County Prosecuting Attorney is suggesting a change to the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ), to clarify the scope of a "new trial" mandated in the event of a lost electronic record.

All proceedings in courts of limited jurisdiction are preserved through an electronic record. Unfortunately, these records are occasionally lost or destroyed through computer or microphone malfunction. RALJ 5.4 provides that the remedy for a lost electronic record is "a new trial." The purpose of this suggested change is to clarify the meaning of a "new trial" when the lost or damaged electronic record pertains to a pretrial hearing, not a trial.

When a lost or damaged record pertains to the trial, RALJ 5.4's remedy is logical and easily applied on remand. However, if the lost or damaged record pertains to a pretrial hearing, the remedy is more complicated and difficult to apply. Courts of limited jurisdiction need guidance on this issue.

For example, if the lost electronic record pertains to a pretrial CrRLJ 3.5 hearing, rather than a trial, then what is the scope of the "new trial" on remand? In this situation, RALJ 5.4's remedy is ambiguous. Obviously, the appellant should be entitled to relitigate the CrRLJ 3.5 hearing for which the record was lost or destroyed. However, RALJ 5.4 does not specify that the appellant is entitled to relitigate the CrRLJ 3.5 hearing; it specifies that the appellant is entitled to "a new trial."

Assuming that "a new trial" allows the appellant to relitigate pretrial matters for which the record was lost or destroyed, it is still unclear whether the appellant is entitled to relitigate pretrial matters for which the electronic record survived.

Take, for example, a case in which a CrRLJ 3.6 suppression hearing was held on a different date than a CrRLJ 3.5 hearing. If the record of the CrRLJ 3.6 suppression hearing survived but the record of the CrRLJ 3.5 hearing was destroyed, should the appellant be entitled to relitigate both the CrRLJ 3.5 hearing and the CrRLJ 3.6 suppression hearing? Because RALJ 5.4 protects an appellant's right to obtain appellate review, and the appellant can obtain appellate review of any hearing for which the electronic hearing survived, the trial court should not be required to relitigate a hearing with a viable record that remains subject to appellate review. In that situation, relitigation of all pretrial matters is a waste of the court's limited resources and an unnecessary windfall to the appellant.

However, there are circumstances in which the lost record from one pretrial hearing may affect the proceedings in a subsequent pretrial hearing. For example, if the testimony at a CrRLJ 3.5 hearing affected the court's ruling at a subsequent CrRLJ 3.6 hearing, then the hearings are materially related and the appellant should be entitled to relitigate both hearings.

Finally, there is also a question as to whether the appellant should receive a new trial when the record of a pretrial hearing is lost but the record of the trial survived. If the relitigation of the lost pretrial hearing would not affect the trial, there is no reason to hold a new trial. The trial record is still subject to review on appeal. A new trial should be held only if relitigation of a pretrial matter affects the evidence at trial.

The remedy provided by RALJ 5.4 lacks specificity. In its current form, the rule presumes that pretrial matters and trial are heard at the same time, such that any loss of an electronic record necessarily implies the loss of a trial record. In practice, however, courts of limited jurisdiction hold numerous pretrial hearings prior to trial. Some of those pretrial hearings affect trial, and some do not.

The proposed amendment to RALJ 5.4 clarifies that the remedy for a lost or damaged record of a pretrial hearing is relitigation of the pretrial hearing for which the electronic record was lost or destroyed. The trial court need not relitigate a pretrial hearing or trial for which the electronic record survived, unless the appellant can demonstrate that a pretrial hearing or trial was materially affected by the lost electronic record.

In the event of loss or damage of the electronic record, or any significant or material portion thereof, the appellant, upon motion to the superior court, shall be entitled to a new trial, but only if the loss or damage of the record is not attributable to the appellant's malfeasance. If the lost record pertains to material or significant pretrial matter, the appellant shall be entitled to a new hearing on the matter for which the record was lost or destroyed. The trial court of limited jurisdiction will not relitigate a pretrial matter or a trial for which there is an electronic record subject to appellate review, unless the appellant demonstrates a court determines that the pretrial matter or the trial was materially affected by the lost electronic record. In lieu of a new trial, the parties may stipulate to a nonelectronic record as provided in rule 6.1(b). The court of limited jurisdiction shall have the authority to determine whether or not significant or material portions of the electronic record have been lost or damaged, subject to review by the superior court upon motion.

PURPOSE: The Office of the King County Prosecuting Attorney is suggesting a change to the Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ), to expressly allow the application of appropriate Rules of Appellate Procedure in appeals from courts of limited jurisdiction.

The purpose of this suggested change is to clarify that the enumerated Rules of Appellate Procedure supplement the Rules for Appeal of Decisions of Courts of Limited Jurisdiction when these rules do not conflict and when application is practicable. Currently, common appellate procedures permitted by the Rules of Appellate Procedure are not expressly incorporated under the RALJ.

Specifically, the RALJ do not provide a mechanism for moving to strike a brief that fails to comply with Title 7. Compare RAP 10.7. The RALJ do not provide a standard for consolidating cases on appeal. Compare RAP 3.3. The RALJ do not define the scope of issues that may be raised for the first time on review, nor do they define the scope of review for a case that has returned to the appellate court following remand. Compare RAP 2.5. The RALJ do not expressly permit a statement of additional authorities. Compare RAP 10.8. The RALJ do not give the court of limited jurisdiction the authority to settle the record. Compare RAP 7.2

The RALJ allow a respondent to seek cross-review of a decision of the court of limited jurisdiction. RALJ 2.1(a). However, unlike the Rules of Appellate Procedure, the RALJ do not specify the scope of cross-review. Compare RAP 2.4(a).

The RALJ provide a streamlined procedure for appeals from courts of limited jurisdiction. However, in the aforementioned circumstances, the RALJ procedure would benefit from limited application of the more clearly defined Rules of Appellate Procedure.

(a) Civil Rules. The following Superior Court Civil Rules are applicable to appellate proceedings in civil cases in the superior court when not in conflict with the purpose or intent of these rules and when application is practicable: CR 1 (scope of rules), CR 2A (stipulations), CR 6 (time), CR 7(b) (form of motions), CR 11 (signing of pleadings), CR 25 (substitution of parties), CR 40 (a)(2) (notice of issues of law), CR 42 (consolidation; separate trials), CR 46 (exceptions unnecessary), CR 54(a) (judgments and orders), CR 60 (relief from judgment or order), CR 71 (withdrawal by attorney), CR 77 (superior courts and judicial officers), CR 78 (clerks), CR 79 (books and records kept by the clerk), CR 80 (court reporters), and CR 83 (local rules of superior court).

(b) Criminal Rules. The following Superior Court Criminal Rules are applicable to appellate proceedings in criminal cases in the superior court when not in conflict with the purpose or intent of these rules and when application is practicable: CrR 1.1 (scope), CrR 1.2 (purpose and construction), CrR 1.4 (prosecuting attorney definition), CrR 3.1 (right to and assignment of counsel), CrR 7.1 (sentencing), CrR 7.2 (presentence investigation), CrR 8.1 (time), CrR 8.2 (motions), CrR 8.5 (calendars), CrR 8.6 (exceptions unnecessary), CrR 8.7 (objections), and CrR 8.8 (discharge).

(c) Civil Rules for Courts of Limited Jurisdiction. The following Civil Rules for Courts of Limited Jurisdiction are applicable to appellate proceedings in civil cases in the court of limited jurisdiction when not in conflict with the purpose or intent of these rules and when application is practicable: CRLJ 5 (service and filing), CRLJ 6 (time), CRLJ 7(b) (motions), CRLJ 8 (general rules of pleading), CRLJ 10 (form of pleadings), CRLJ 11 (verification and signing of pleadings), CRLJ 25 (substitution of parties), CRLJ 40(b) (disqualification of judge), and CRLJ 60 (relief from judgment or order).

(d) Criminal Rules for Courts of Limited Jurisdiction. The following Criminal Rules for Courts of Limited Jurisdiction are applicable to appellate proceedings in criminal cases in the court of limited jurisdiction when not in conflict with the purpose or intent of these rules and when application is practicable: CrRLJ 1.7 (local court rules--availability), CrRLJ 1.5 (style and form), CrRLJ 3.1 (right to and assignment of lawyer), CrRLJ 8.9 (disqualification of judge), CrRLJ 8.9(c) (disqualification of judge--transfer), CrRLJ 7.8(a) (clerical mistakes), CrRLJ 8.1 (time), and CrRLJ 8.2 (motions). (Editorial Note: Effective September 1, 1987, Justice Court Criminal Rules (JCrR) were retitled Criminal Rules for Courts of Limited Jurisdiction (CrRLJ). Effective September 1, 1989, Justice Court Civil Rules (JCR) were retitled Civil Rules for Courts of Limited Jurisdiction (CRLJ).)

<<+++>> (e) Rules of Appellate Procedure. The following Rules of Appellate Procedure are applicable to appellate proceedings in criminal cases in the court of limited jurisdiction when not in conflict with the purpose or intent of these rules and when application is practicable: RAP 2.4(a) (scope of review), RAP 2.5 (circumstances which may affect the scope of review), RAP 3.3 (consolidation of cases), RAP 7.2(b) (authority of trial court to settle the record), RAP 10.7 (submission of improper brief), RAP 10.8 (additional authorities).<<+++>>