WSR 98-03-036

RULES OF COURT

STATE SUPREME COURT

[January 8, 1998]

IN THE MATTER OF THE ADOPTION OF THE ) ORDER

AMENDMENTS TO RAP 2.1, RAP 4.2, NEW ) NO. 25700-A-619

RAP 4.3 AND RAP 4.4 )

The District and Municipal Court Judges' Association having recommended the adoption of the proposed amendments to RAP 2.1, RAP 4.2, New RAP 4.3 and RAP 4.4, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ordered:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(i), the amendments will be published expeditiously and become effective upon publication.

dated at Olympia, Washington this 8th day of January, 1998.

Durham, C. J.

_______________________

J. M. Dolliver Madsen, J.

________________________ ________________________

Smith, J. Alexander, J.

________________________ ________________________

Guy, J. Talmadge, J.

________________________ ________________________

Johnson, J. Sanders, J.

________________________ ________________________

[Pursuant to an order of the Supreme Court dated July 14, 1997, and in accordance with GR 9(i), the following proposed changes to the Rules of Court are published for comment by any interested party. Comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail no later than October 10, 1997. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.

The comments to the proposed court rule changes are included herein solely for information purposes.

Proposed adoptions to rules or sections of rules are: RAP 4.3 and 4.4.

Proposed amendments are: RAP 2.1 and 4.2.

Additions and deletions are indicated by underlining and lining out respectively, except where the entire rule is new.]

(a) Two Methods for Seeking Review of Trial Superior Court Decisions. The only methods for seeking review of decisions of the superior court by the Court of Appeals and by the Supreme Court are the two methods provided by these rules. . . .

. . . .

(d) Method for Seeking Review of Decisions of Courts of Limited Jurisdiction. The only method for seeking direct review by the Supreme Court of a decision of a court of limited jurisdiction, without first obtaining a Superior Court decision under the RALJ, is by notice of appeal as provided for in Rule 4.3.

The title of this rule limits its application to trial court decisions. The amendment to subsection (a) clarifies that decisions of the superior court sitting as a trial court can be reviewed both by appeal and by discretionary review. (Review of decisions of the superior court sitting as an appellate court are dealt with in RAP 2.3(d).) The new subsection (d) to this rule provides for direct review of appealable decisions of courts of limited jurisdiction.

(a) Type of Cases Reviewed Directly. A party may seek review in the Supreme Court of a decision of a trial superior court . . . .

(b) Service and Filing of Statement of Grounds for Direct Review. A party seeking direct review of a trial superior court decision . . . .

(c) Form of Statement of Grounds for Direct Review. . . .

(1) Nature of the Case and Decision. A short statement of the substance of the case below and the basis for the trial superior court decision;

. . . .

(e) Effect of Denial of Direct Review.

(1) Appealable Decision. If the Supreme Court denies direct review of a trial superior court decision appealable as a matter of right, the case will be transferred without prejudice and without costs to the Court of Appeals for determination.

(2) Discretionary Review. A motion for discretionary review in the Supreme Court of a trial superior court decision may be granted, denied, or transferred to the Court of Appeals for determination. If the Supreme Court denies a motion for discretionary review of a trial superior court decision, the moving party may not file the same motion in the Court of Appeals.

Changing "trial court" to "superior court" in this rule is necessary to distinguish the criteria and procedures governing direct review of superior court decisions from those governing direct review of decisions of courts of limited jurisdiction. The latter subject is dealt with in new Rule 4.3.

(a) Prerequisites for Direct Review of Decisions of Courts of Limited Jurisdiction. A party may seek direct review in the Supreme Court of a decision of a court of limited jurisdiction if:

(1) The decision is a final decision appealable under RALJ 2.2: and

(2) The trial court enters a written statement setting forth its reasons for concluding that:

(a) The case involves a fundamental and urgent issue of statewide importance which requires a prompt and precedential determination:

(b) Delay in obtaining such a determination would cause significant detriment to any party or to the public interest: and

(c) The record of the proceedings in the court of limited jurisdiction adequately presents the issue.

(b) Service and Filing of Statement of Grounds for Direct Review. A party seeking direct review of a decision of a court of limited jurisdiction in the Supreme Court must within 15 days after filing the notice of appeal serve on all other parties and file in the Supreme Court a statement of grounds for direct review in the form provided in section (c).

(c) Form of Statement of Grounds for Direct Review. The statement should be captioned "Statement of Grounds for Direct Review," contain the title of the case as provided in rule 3.4, and contain under appropriate headings and in the order here indicated:

(1) Nature of Case and Decision. A short statement of the substance of the case below and the basis for the trial court decision:

(2) Issues Presented for Review. A statement of each issue the party intends to present for review: and

(3) Grounds for Direct Review. The grounds upon which the party contends direct review should be granted.

(4) Appendix. A copy of the trial court's written statement under subsection Rule 4.3 (a)(2) of this rule.

The statement of grounds for direct review should not exceed 15 pages, exclusive of appendices and the title sheet.

(d) Answer to Statement of Grounds for Direct Review. A respondent may file an answer to the statement of grounds for direct review. The answer should be filed within 14 days after service of the statement on respondent. The answer should not exceed 15 pages, exclusive of appendices and the title sheet.

(e) Procedure. Upon receipt of the statement of grounds for direct review and answer, the Supreme Court will set the matter for preliminary consideration on the motion calendar of a commissioner or clerk. The commissioner or clerk may accept review or transfer the case to the Court of Appeals or to the Superior Court. Any transfer will be without prejudice and without costs. Title 17 relating to motions governs oral argument, decisions by ruling, and the means of objecting to the ruling of the commissioner or clerk.

The review criteria in the new subsection are adopted from RAP 4.2 (direct review of superior court decisions) and RCW 34.05.518 (direct appellate court review of administrative decisions). Because the Supreme Court can transfer the appeal to the Court of Appeals, the phrase "prompt and precedential" is preferable to the reference in RAP 4.2 (n)(4) to "prompt and ultimate." The requirement of an adequate trial court record is designed to assure that the court will reach the issue thought to warrant direct review. The requirement of a written statement by the trial court is adopted from CR 54(c), and is intended to assure that there is in fact some serious basis for direct review.

Subsection (e) is patterned on RAP 4.2(e), which explains the effect of this court's denial of direct review of a superior court decision, and RAP 16.2 (c) & (e), which set forth a similar preliminary consideration role for the commissioner and clerk in original actions.

Reviser's note: The brackets and enclosed material in the text of the above material occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.