WSR 13-23-031

RULES OF COURT

[November 7, 2013]

The Washington State Bar Association and Court of Appeals having recommended the adoption of the proposed amendments to RAP 2.2(c)—Decisions of the Superior Court that May Be Appealed, RAP 5.3(a)—Content of Notice—Filing—Content of Notice of Appeal, RAP 5.3(j)—Content of Notice—Filing—Assistance to Defendant in Criminal Case or Party Entitled to Review at Public Expense, RAP 5.4(a)—Filing and Service of Notice, RAP 6.2(c)—Discretionary Review, RAP 9.6—Designation of Clerk's Papers and Exhibits, RAP 9.7(b)—Preparing Clerk's Papers and Exhibits for Appellate Court, RAP 10.10—Statement of Additional Grounds For Review, RAP 16.2—Original Action Against State Officer, RAP 16.14(a)—Personal Restraint Petition—Appellate Review, RAP 17.1(a)—Scope, RAP 18.3(b)—Withdrawal by Counsel and RAP 18.13A—Accelerated Review of Juvenile Dependency, Disposition Orders and, Orders Terminating Parental Rights, and Dependency Guardianship Orders, 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 websites 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, 2013.

Purpose: The proposed amendment clarifies that appellate courts' review of superior courts' small claims decisions is available only if discretionary review is accepted. Review is not a matter of right but must be granted by the appellate court under Rule 2.3.

The small claims procedure was intended to be a simple, accessible, and expedited process used by lay persons to resolve small disputes. WA F.B. Rep., 1997 Reg. Sess. S.B. 5295. Litigants already have the right to appeal the small claims court's decision to a superior court under CRLJ 72. Further mandatory review deviates from the purpose of small claims courts by increasing the expense and burden to the litigants and should only be permitted on a discretionary basis.

(c) Superior Court Decision on Review of Decision of Court of Limited Jurisdiction. If the superior court decision has been entered after a proceeding to review a decision of a court of limited jurisdiction, a party may appeal only if the review proceeding was a trial de novo and the final judgment is not a finding that a traffic infraction has been committed. Appeal is not available if: (1) the final judgment is a finding that a traffic infraction has been committed, or (2) the claim originated in a small claims court operating under RCW 12.40.

Purpose: The purpose of this amendment is to direct the clerk to assist the self-represented person by attaching the necessary judgment and sentence form, and any other related documents such as an order of indigency, to the notice of appeal.

(a) Content of Notice of Appeal. A notice of appeal must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed, and (4) name the appellate court to which the review is taken.

The party filing the notice of appeal should attach to the notice of appeal a copy of the signed order or judgment from which the appeal is made, and, in a criminal case in which two or more defendants were joined for trial by order of the trial court, provide the names and superior court cause numbers of all codefendants. In a criminal case where the defendant is not represented by counsel at trial, the trial court clerk shall attach a copy of the judgment and sentence, the order of indigency, if applicable, and any service documents with the notice as provided in rule 5.3(j).

(j) Assistance to Defendant in Criminal Case or Party Entitled to Review at Public Expense. Trial counsel for a defendant in a criminal case or party entitled to review at public expense is responsible for filing any appropriate notice of appeal, notice for discretionary review, and motion for order of indigency under rule 15.2. If such a defendant or party is not represented by counsel at trial, the trial court clerk shall, if requested by the defendant or party in open court or in writing, supply a notice of appeal form, a notice for discretionary review form, or a form for a motion for order of indigency, and file the forms upon completion by the defendant or party. The clerk shall transmit the forms and all related orders to the appellate court.

Purpose: This proposal is a companion to the proposed changes to Rule 5.3 designed to clarify the trial court clerk's duties when assisting a self-represented criminal defendant. It also would clarify that the proof of service required by Rule 5.4(b) should also be forwarded to the appellate court along with the notice of appeal or notice of discretionary review.

(a) Filing of Notice by Clerk of Trial Court. The clerk of the trial court shall within 14 days of the filing of a notice of appeal or notice for discretionary review file a copy of the notice along with any proof or affidavit of service filed for the notice with the appellate court designated in the notice and notify that court whether the filing fee has been paid. The clerk shall indicate on the notice in the clerk's file, or on a separate paper, the date the notice and proof of service, if applicable, was mailed to the appellate court. In a case where a defendant is not represented by counsel at trial, the clerk shall also transmit to the designated appellate court a copy of the judgment and sentence, order of indigency, if applicable, and any service documents. Failure by the clerk to file the notice with the appellate court has no effect on the rights of any party to review.

Purpose: This amendment clarifies that parties should append the relevant portions of the record to motions for discretionary review and should prepare a table of contents to the appended record.

(c) Regular Motion Procedure Governs. A motion for discretionary review is governed by the motion procedure established by Title 17. The motion and the response shoud append those portions of the record below to which the motion or response refer. The appendix should include a table of contents and the pages should be consecutively numbered.

Purpose: The amendment would treat civil and criminal cases alike by requiring the initiation documents for all cases be included in the clerk's papers.

(b) Designation and contents.

(1) The clerk's papers shall include, at a minimum:

(A) the notice of appeal or the notice of discretionary review;

(B) the indictment, information, or complaint in a criminal case;

(C) (D) any written order or ruling not attached to the notice of appeal, of which a party seeks review;

(D) (E) the final pretrial order, or the final complaint and answer or other pleadings setting out the issues to be tried if the final pretrial order does not set out those issues;

(E) (F) any written opinion, findings of fact or conclusions of law;

(F) (G) any jury instruction given or refused that presents an issue on appeal; and

(G) (H) any order sealing documents if sealed documents have been designated.

Purpose: The amendment is designed to require trial courts to file an exhibit list that identifies only the exhibits that are transmitted on appeal.

(b) Exhibits. The clerk of the trial court shall assemble those exhibits designated by the parties and prepare them for transmission to the appellate court. Exhibits which that are papers should be assembled in the order the exhibits are numbered with a cover sheet which that lists only the exhibits being transmitted and is titled "Exhibits."

Purpose: The amendment to Rule 10.10(a) conforms the scope of the statement of additional grounds to the scope of review. Defendants retain the ability to discuss matters they believe have not been adequately addressed, but they may only speak to issues related to the ruling being considered by the appellate court. The statement is only available to those defendants who have an appeal as a matter of right, and the statement must relate to the judgment or order that was appealed.

The amendment to Rule 10.10(c) limits attachments to the Statement of Additional Grounds to items that are in the appellate record. The appropriate instrument for a defendant who wishes to raise issues and evidence outside the record is the personal restraint petition (PRP). See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995) (PRP appropriate means of introducing matters outside record on appeal). A PRP may be filed concurrently with the direct appeal. See Washington State Bar Ass'n, Appellate Practice Desk Book § 32.2 (2)(c), at 32–7 (3d ed. 2005) (citing State v. Byrd, 30 Wn. App. 794, 800, 638 P.2d 601 (1981)). The personal restraint procedure is designed to be clear and simple, and readily lends itself to pro se representation. Washington State Bar Ass'n, Appellate Practice Desk Book § 32.2 (3)(c), at 32-10 (3d ed. 2005).

(a) Statement Permitted. A defendant/appellant in a review of In a criminal case on direct appeal, the defendant may file a pro se statement of additional grounds for review to identify and discuss those matters related to the decision under review which that the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel.

(b) Length and Legibility. The statement, which shall be limited to no more than 50 pages, may be submitted in handwriting so long as it is legible and can be reproduced by the clerk.

(c) Citations; Identification of Errors. Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3 (a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review. Only documents that are contained in the record on review should be attached or referred to in the statement.

(d) Time for Filing. The statement of additional grounds for review should be filed within 30 days after service upon the defendant/appellant of the brief prepared by defendant/appellant's counsel and the mailing of a notice from the clerk of the appellate court advising the defendant/appellant of the substance of this rule. The clerk will advise all parties if the defendant/appellant files a statement of additional grounds for review.

(e) Report of Proceedings. If within 30 days after service of the brief prepared by defendant/appellant's counsel, defendant/appellant requests a copy of the verbatim report of proceedings from defendant/appellant's counsel, counsel should promptly serve a copy of the verbatim report of proceedings on the defendant/appellant and should file in the appellate court proof of such service. The pro se statement of additional grounds for review should then be filed within 30 days after service of the verbatim report of proceedings. The cost for producing and mailing the verbatim report of proceedings for an indigent defendant/appellant will be reimbursed to counsel from the Office of Public Defense in accordance with Title 15 of these rules.

(f) Additional Briefing. The appellate court may, in the exercise of its discretion, request additional briefing from counsel to address issues raised in the defendant/appellant's pro se statement.

Purpose: This amendment is intended to bring Rule 16.2 into conformity with Rule 17.4 (a)(2).

(b) Initiating Proceeding. The proceeding is initiated by filing the petition in the Supreme Court and serving filing proof of service of the petition on the proper parties. The petition must be noted for hearing before the commissioner or clerk as provided in rule 17.4 for motions. The notice of hearing should be served with the petition. Service of the petition and notice must be made as provided in the Superior Court Civil Rules and statutes for service of a summons in a superior court action. The clerk of the Supreme Court will note the petition for hearing and provide notice to the parties.

Purpose: This amendment clarifies that the decision to transfer a motion to the appellate court is not subject to direct review by the Supreme Court.

(a) Decision Whether to Transfer. A decision to transfer a petition to a superior court for a hearing or to retain the petition for determination by the appellate court is not subject to review by the Supreme Court. A superior court decision to transfer a motion to the Court of Appeals for consideration as a personal restraint petition pursuant to CrR 7.8 is not subject to direct review by the Supreme Court.

Purpose: This amendment would clarify for criminal defendants what pleadings they may file with the appellate court and conform to current practices.

(a) Relief Under This Title. A person may seek relief, other than a decision of the case on the merits, by motion as provided in Title 17. In a criminal appeal where the defendant is represented by counsel, the defendant may only file a motion related to a statement of additional grounds for review or the representation of counsel. Other motions submitted by a defendant who is represented by counsel will be placed in the file without action. Any such action is not subject to the provisions of rule 17.7.

Purpose: The purpose of the amendment is to ensure that notice of intent to withdraw is filed in the appellate court rather than the trial court.

(b) Civil Cases. Except as otherwise provided in this section, withdrawal by counsel in a civil case shall be governed by CR 71. If a notice of intent to withdraw is given before oral argument, the notice should include the date set for oral argument. Any reference in the notice to the clerk of the court shall mean the clerk of the appellate court. A motion The notice to withdraw from representation in the appellate court should be filed in the appellate court, which will decide such motion.

Purpose: The purpose of the amendment is to establish that dependency guardianship orders under RCW 13.36 are to be subject to accelerated review in the same way as juvenile dependency disposition orders and orders terminating parental rights, which are now addressed by the rule.

(a) Generally. Juvenile dependency disposition orders and orders terminating parental rights under RCW 13.34, and dependency guardianship orders under RCW 13.36, may be reviewed by a commissioner on the merits by accelerated review as provided in this rule. Review from other orders entered in juvenile dependency and termination actions are not subject to this rule. The provisions of this rule supersede all other provisions of the Rules of Appellate Procedure to the contrary, and this rule shall be construed so that appeals from juvenile dependency disposition orders and orders terminating parental rights under RCW 13.34, and dependency guardianship orders under RCW 13.36, shall be heard as expeditiously as possible.

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(d) Consolidation. When one or more appellants seek review of more than one dependency dispositional order or, order terminating parental rights, or dependency guardianship order arising from cases tried together, each appellant may file a single statement of arrangements and a single designation of clerk's papers under the lowest trial court cause number. The appellate court normally will consolidate the appeals for purposes of review.