IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 2.2(a), 2.3(b), 2.4, 5.1, 7.2, 8.1, 9.1, 9.2, FORM 15 (Replaces Current Form 15), 9.5, NEW FORM 15A, 9.6, 10.1, 10.2, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, FORM 22, FORM 23, 11.4, 11.5, 11.6, 12.3, 12.4, 12.7, 13.4, 14.6, 17.2, 17.3, 17.4, 18.1, 18.4, 18.13, 18.15, RALJ 1.2, RALJ 6.4, and RALJ 9.2

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ORDER NO. 25700-A-725

     The Washington State Bar Association having recommended the adoption of the proposed amendments to RAP 2.2(a), 2.3(b), 2.4, 5.1, 7.2, 8.1, 9.1, 9.2, FORM 15 (Replaces Current Form 15), 9.5, NEW FORM 15A, 9.6, 10.1, 10.2, 10.3, 10.4, 10.5, 10.7, 10.8, 10.9, 10.10, FORM 22, FORM 23, 11.4, 11.5, 11.6, 12.3, 12.4, 12.7, 13.4, 14.6, 17.2, 17.3, 17.4, 18.1, 18.4, 18.13, 18.15, RALJ 1.2, RALJ 6.4, and RALJ 9.2, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in January 2002 in the Washington Reports, Washington Register, Washington State Bar Association and the Administrative Office of the Courts' websites.

     (b) The purpose statement as required by GR 9(d), 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 Mail or Internet E-Mail by no later than April 30, 2002. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 6th day of December 2001.

	Gerry L. Alexander
	CHIEF JUSTICE

     (1) Final Judgment. The final judgment entered in any action or proceeding, regardless of whether the judgment reserves for future determination an award of attorney fees or costs.

     (1) - (13) Unchanged.

     (b) - (d) Unchanged.

     Purpose: RAP 2.3(b) currently lists three grounds under which discretionary review will be accepted. The unnumbered paragraph at the end of that section provides additional factors that the appellate court may consider in making a determination under the enumerated grounds. The committee believed that certification or stipulation under the circumstances set forth in that last paragraph should constitute an independent ground for discretionary review.

     The proposed amendment also changes the word "will" to "may" in the introductory clause, to make clear that review under any of the enumerated grounds is discretionary - i.e., that even by stipulating under proposed new subsection (4) the parties cannot force the appellate court to grant review.

     (a) Unchanged.

     (b) Considerations Governing Acceptance of Review. Except as provided in section (d), discretionary review will may be accepted only in the following circumstances:

     (1) If the The superior court has committed an obvious error which would render further proceedings useless;

     (2) If the The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; or

     (3) If the The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court.; or

     (4) The appellate court may consider that the The superior court has certified, or that all parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.

     (c) - (d) Unchanged.

     Purpose: The Committee discussed extensively what the appropriate procedure should be for obtaining review of an award of attorney fees entered as part of, or after, a judgment on the merits. Its reached two primary conclusions: (1) parties should be encouraged to seek timely review of final judgments, rather than wait for orders on fee requests that may be entered months later, and (2) the rules should not contain "traps for the unwary." With these policies in mind, the Committee recommended two amendments.

     The amendment to section (b) is the "inverse" of the amendment to (g), discussed below. It provides that even if one timely seeks review of an order awarding attorney fees, this does not bring up for review the underlying judgment or order on the merits. A party must file a timely notice for review of the judgment or order itself. This amendment is intended to overrule cases such as Franz v. Lance, 119 Wn.2d 780 (1992) and Wlasiuk v. Whirlpool Corp., 76 Wn. App. 250 (1994).

     Section (g) is amended to make clear that a timely appeal or motion for discretionary review from a decision on the merits brings up for review an award of attorney fees entered after review is accepted, without the filing of an amended notice of appeal or notice for discretionary review. This is intended to apply both to cases where the trial court awards fees incurred at the trial level and to cases, such as marriage dissolutions, where the trial court may award fees for the appeal.

     (a) Unchanged.

     (b) Order or Ruling Not Designated in Notice. The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review. A timely notice of appeal of a trial court decision relating to attorney fees and costs does not bring up for review a decision previously entered in the action that is otherwise appealable under rule 2.2(a) unless a timely notice of appeal has been filed to seek review of the previous decision.

     (c) - (f) Unchanged.

     (g) Award of Attorney Fees. An appeal from a decision on the merits of a case brings up for review an award of attorney fees entered after the appellate court accepts review of the decision on the merits, if the party seeking review files within the time provided in RAP 5.2 an amended notice of appeal or an amended notice for discretionary review as provided in rule 7.2(d).

     Purpose: This is a housekeeping amendment, necessary if the proposed amendments to RAP 2.4 and 7.2 are adopted.

     (a) - (e) Unchanged.

     (f) Order Entered After Review Accepted. If a party wants to seek review of a trial court decision entered pursuant to rule 7.2 after review in the same case has been accepted by the appellate court, the party must initiate a separate review of the decision by timely filing a notice of appeal or notice for discretionary review, except as provided by rules 2.4(c), and (f) and (g), 7.2(i), 8.1(h), 8.2(b), and 9.13.

     Purpose: The amendment to section (d) clarifies that it concerns the authority of the trial court to award attorney fees and litigation expenses relating to the appeal of a case involving a dissolution of marriage or other matters listed. Consistent with the proposed amendment to RAP 2.4(g), it eliminates the requirement that an amended notice be filed, as long as review of the underlying judgment or order has been timely sought.

     The amendment to section (i) clarifies the authority of the trial court to act on claims for attorney fees and litigation expenses, in addition to "costs." The heading is likewise amended. Again, consistent with the proposed amendment to RAP 2.4(g), the second sentence is amended to allow review of a decision on attorney fees and expenses in the same review proceeding challenging the underlying judgment, without the filing of a separate notice of appeal or notice for discretionary review.

     (a) - (c) Unchanged.

     (d) Attorney Fees and Litigation Expenses On Appeal. The trial court has authority to award attorney fees and litigation expenses for an appeal in a marriage dissolution, a legal separation, a declaration of invalidity proceeding, or an action to modify a decree in any of these proceedings, and in any other action in which applicable law gives the trial court authority to do so. To obtain review of a trial court decision on attorney fees and litigation expenses in the same review proceeding as that challenging the judgment, a party must file an amended notice of appeal or an amended notice for discretionary review in the trial court.

     (e) - (h) Unchanged.

     (i) Attorney Fees, Costs and Litigation Expenses. The trial court has authority to act on claims for attorney fees, costs and litigation expenses objections to costs. A party may obtain review of a trial court decision on attorney fees, costs and litigation expenses in the same review proceeding as that challenging the judgment without filing a separate notice of appeal or notice for discretionary review.

     (j) Unchanged.

     Purpose: The amendments are intended (1) to clarify the existing rule by improving its structure and (2) to allow a party to use cash deposited into the registry of the court pursuant to RCW 36.48.090 as the equivalent of a supersedeas bond.

     In general, the proposed reorganization of the rule first addresses, in section (b), the types of judgments that may be stayed, and then goes on to set forth the procedural aspects of stays in subsequent sections.

     Section (b) is first amended to make clear that a trial court decision may be enforced pending review unless it is stayed pursuant to this rule. Sections (b)(1) - (4) are amended by deleting the language relating to the amount of security; this language is restored in proposed new section (c) on "supersedeas amount." These amendments also add "cash" as an authorized equivalent to a bond, on the theory that cash is better than a bond and easier to obtain. Under the current rule, a party may file a bond without court approval but cash deposits are deemed "alternate security" and require court authorization under section (b)(4).

     As noted, section (c) incorporates existing language into a new section dealing specifically with the amount of the security required. Section (c)(3) incorporates language addressing periodic payments currently in section (f), which would be eliminated. Amendments to other sections are proposed for consistency and clarity; sections are renumbered as necessary.

     (a) Application of Civil Rules. This rule provides a means of delaying the enforcement of a trial court decision in a civil case in addition to the means provided in CR 62 (a), (b), and (h).

     (b) Procedure Right to Stay Enforcement of Trial Court Decision. A trial court decision may be enforced pending appeal or review unless stayed pursuant to the provisions of this rule. Any party to a review proceeding has the right to stay enforcement of a money judgment, or a decision affecting real, personal or intellectual property, pending review. Stay of a decision in other civil cases is a matter of discretion. Enforcement of a trial court decision may be stayed through the following procedures:

     (1) Money Judgment. Except when prohibited by statute, a party may obtain a stay of enforcement of a money judgment by filing in the trial court a supersedeas bond or cash, or by alternate security approved by the in the trial court pursuant to subsection (4), below. The amount of the bond shall be the amount of the judgment, plus interest likely to accrue during the pendency of the appeal and attorney fees, costs, and expenses likely to be awarded on appeal. If a party seeks to stay enforcement of only part of the judgment, the bond shall be fixed at such sum as the trial court determines is appropriate to secure that portion of the judgment, plus interest likely to accrue during the pendency of the appeal and attorney fees, costs, and expenses likely to be awarded on appeal. If all or part of the judgment is secured by other means, the bond shall be fixed at such sum as the trial court determines is appropriate to secure the otherwise unsecured portion of the money judgment, plus interest likely to accrue during the pendency of the appeal on the unsecured portion of the judgment and attorney fees, costs, and expenses likely to be awarded on appeal that are not secured by other means.

     (2) Decision Affecting Property. Except where prohibited by statute, a party may obtain a stay of enforcement of a decision affecting the rights to possession, ownership or use of real property, or of tangible personal property, or of intangible personal property, by filing in the trial court a supersedeas bond or cash, or by alternate security approved in by the trial court pursuant to subsection (4), below. If the decision affects the rights to possession, ownership or use of a trademark, trade secret, patent, or other intellectual property, a party may obtain a stay in the trial court only if it is reasonably possible to quantify the loss which would be incurred by the prevailing party in the trial court as a result of the party's inability to enforce the decision during review. The amount of the bond shall be the amount of any money judgment entered by the trial court plus the amount of the loss which the prevailing party in the trial court would incur as a result of the party's inability to enforce the judgment during review. Ordinarily, the amount of loss will be equal to the reasonable value of the use of the property during review. A party claiming that the reasonable value of the use of the property is inadequate to secure the loss which the party may suffer as a result of the party's inability to enforce the judgment shall have the burden of proving that the amount of loss would be more than the reasonable value of the use of the property during review. If the property at issue has value, the property itself may fully or partially secure any loss and the court may determine that no bond need be filed or may reduce the amount of the bond accordingly.

     (3) Other Civil Cases. Except where prohibited by statute, in other civil cases, including cases involving equitable relief ordered by the trial court, the appellate court has authority, before or after acceptance of review, to stay enforcement of the trial court decision upon such terms as are just. The appellate court ordinarily will condition such relief from enforcement of the trial court decision on the furnishing of a supersedeas bond, cash or other security. In evaluating whether to stay enforcement of such a decision, the appellate court will (i) consider whether the moving party can demonstrate that debatable issues are presented on appeal and (ii) compare the injury that would be suffered by the moving party if a stay were not imposed with the injury that would be suffered by the nonmoving party if a stay were imposed. The party seeking such relief should use the motion procedure provided in Title 17.

     (4) Alternate Security. Upon motion of a party, Tthe trial court or appellate court may authorize a party to post security other than a bond or cash. The effect of doing so is equivalent to the filing of a supersedeas bond or cash.

     (c) Supersedeas Amount. The amount of the supersedeas bond, cash or alternate security required shall be as follows:

     (1) Money Judgment. The supersedeas amount shall be the amount of the judgment, plus interest likely to accrue during the pendency of the appeal and attorney fees, costs, and expenses likely to be awarded on appeal.

     (2) Decision Affecting Property. The supersedeas amount shall be the amount of any money judgment entered by the trial court plus the amount of the loss which the prevailing party in the trial court would incur as a result of the party's inability to enforce the judgment during review. Ordinarily, the amount of loss will be equal to the reasonable value of the use of the property during review. A party claiming that the reasonable value of the use of the property is inadequate to secure the loss which the party may suffer as a result of the party's inability to enforce the judgment shall have the burden of proving that the amount of loss would be more than the reasonable value of the use of the property during review. If the property at issue has value, the property itself may fully or partially secure any loss and the court may determine that no additional security need be filed or may reduce the supersedeas amount accordingly.

     (3) Stay of Portion of Judgment. If a party seeks to stay enforcement of only part of the judgment, the supersedeas amount shall be fixed at such sum as the trial court determines is appropriate to secure that portion of the judgment, plus interest likely to accrue during the pendency of the appeal and attorney fees, costs, and expenses likely to be awarded on appeal. If the judgment or decision provides for periodic payments, the trial court may in its discretion deny supersedeas, or permit the periodic posting of bonds, cash or alternate security.

     (cd) Effect of Filing Bond or Other Security. Upon the filing of a supersedeas bond, cash or other alternate security approved by the trial court pursuant to subsection (4) above, enforcement of a trial court decision against a party furnishing the bond, cash or other alternate security is stayed. Unless otherwise ordered by the trial court or appellate court, upon the filing of a supersedeas bond, cash or other alternate security any execution proceedings against a party furnishing the bond, cash or other alternate security shall be of no further effect.

     (de) Objection to Supersedeas Bond. A party may object to the sufficiency of an individual surety on a bond, to the form of a bond, or to the amount of a bond or cash supersedeas by a motion in the trial court made within 7 days after the party making the motion is served with a copy of the bond and any supporting affidavits, if required. If the trial court determines that the bond is improper in form, or that the amount of the bond, cash or that the net worth of an individual surety is inadequate, stay of enforcement of the trial court decision may be preserved only by furnishing a proper bond or supplemental bond or cash within 7 days after the entry of the order declaring the bond supersedeas deficient.

     (ef) Supersedeas by Party Not Required to Post Bond. If a party is not required to post a bond, that party shall file a notice that the decision is superseded without bond and, after filing the notice, the party shall be in the same position as if the party had posted a bond pursuant to the provisions of this rule.

     (f) Periodic Payments. If the judgment or decision provides for periodic payments, the trial court may deny or allow supersedeas in its discretion.

     (g) Modification of Supersedeas Decision. After a supersedeas bond, cash or other alternate security has been filed, the trial court may, upon application of a party or on its own motion, and for good cause shown, discharge the bond, change the supersedeas amount of the bond or other security or require a new bond, additional cash or other alternate security.

     (h) Review of Supersedeas Decision. A party may object to a supersedeas decision of the trial court by motion in the appellate court.

     Purpose: This proposed amendment is a companion to that proposed for RALJ 6.4. It defines the record for purposes of review of a superior court decision reviewing a decision of a court of limited jurisdiction. It also requires the superior court to transmit the original record as considered by the superior court to the appellate court, upon request.

     Please see the purpose statement for the proposed amendment to RALJ 6.4 for additional information.

     (a) - (d) Unchanged.

     (e) Review of Superior Court Decision on Review of Decision of Court of Limited Jurisdiction. Upon review of a superior court decision reviewing a decision of a court of limited jurisdiction pursuant to rule 2.3(d), the record shall consist of the record of proceedings and the transcript of electronic record as defined in RALJ 6.1 and 6.3A. When requested by the appellate court, the superior court shall transmit the original record of proceedings and transcript of electronic record as was considered by the superior court on the appeal from the decision of the court of limited jurisdiction.

     Purpose: Rule 9.2 outlines procedures for filing a statement of arrangements and preparing the report of proceedings. Currently the statement of arrangements is due 45 days after the notice of appeal was filed or discretionary review was granted. The proposed change to section (a) requires the statement of arrangements to be filed in 30 days rather than 45 days. The purpose of the statement of arrangements is to notify the court that the arrangements have been made for the preparation of the transcript. There is no justification for this process to require 45 days; reducing it to 30 days should be sufficient.

     This proposed change is a companion to two other recommendations for amendments to Rules 9.5 (time for filing the verbatim report of proceedings) and 9.6 (time for filing the designation of clerk's papers). The purpose of the three recommendations is to set the same due date (30 days after the filing of the notice of appeal) for both the statement of arrangements and the designation of clerk's papers and to extend the period allowed to file the verbatim report of proceedings from 45 to 60 days after filing the statement of arrangements. Under both the current rules and the proposed changes the verbatim report of proceedings is due 90 days from the filing of the notice of appeal. Therefore, the proposals do not extend the overall time allowed for the preparation of the record. The chart below depicts the current and proposed time frames for filing the designation of clerk's papers, the statement of arrangements and the verbatim report of proceedings.

     Currently the appellant has 45 days to file the statement of arrangements and only 15 to file the designation of clerk's papers. As indicated above, appellants should not need 45 days to make arrangements for transcript to be prepared. It is more equitable to reduce that time to 30 days and increase the time for the reporter to prepare the transcript from 45 to 60 days, retaining the current requirement to file the transcript 90 days from the filing of the notice of appeal. Also, as indicated in the GR 9 cover sheet for Rule 9.6, 15 days is often not sufficient time to file the designation of clerk's papers. In criminal cases, the appellate attorney may not even be appointed by the due date. Allowing 30 days to file both the statement of arrangements and the designation of clerk's papers provides the appellant with sufficient time to review the trial court record and determine what to request in each document.

     This change should assist counsel by allowing for additional time for filing of the designation of clerk's papers. Court reporters will also benefit from this change since additional time is allowed for the filing of the verbatim report of proceedings.

     Form 15 in the Appendix of Forms has been updated to reflect the changes in the proposed rule.

     (a) Transcription and Statement of Arrangements. If the party seeking review intends to provide a verbatim report of proceedings, the party should arrange for transcription of and payment for an original and one copy of the verbatim report of proceedings within 30 45 days after the notice of appeal was filed or discretionary review was granted. If the proceeding being reviewed was recorded on videotape, transcription of the videotapes shall be completed by a court-approved transcriber in accordance with procedures developed by the Office of the Administrator for the Courts. Copies of these procedures are available at the court administrator's office in each county where there is a courtroom that videotapes proceedings or through the Office of the Administrator for the Courts. The party seeking review must file with the appellate court and serve on all parties of record and all named court reporters a statement that arrangements have been made for the transcription of the report and file proof of service with the appellate court. The statement must be filed within 30 45 days after the notice of appeal was filed or discretionary review was granted. The party must indicate the date that the report of proceedings was ordered, the financial arrangements which have been made for payment of transcription costs, the name of each court reporter or other person authorized to prepare a verbatim report of proceedings who will be preparing the transcript, the hearing dates, and the trial court judge. If the party seeking review does not intend to provide a verbatim report of proceedings, a statement to that effect should be filed in lieu of a statement of arrangements within 30 45 days after the notice of appeal was filed or discretionary review was granted and served on all parties of record.

     (b) - (f) Unchanged.

     Purpose: Rule 9.5 governs the filing of the verbatim report of proceedings. In section (a), the report of proceedings must be filed 45 days after the statement of arrangements is filed. The first proposed change to this rule requires the report of proceedings to be filed 60 days after the statement of arrangements is filed.

     This proposed change is a companion to two other recommendations for amendments to Rules 9.2 (time for filing the statement of arrangements) and 9.6 (time for filing the designation of clerk's papers). The purpose of the three recommendations is to set the same due date (30 days after the filing of the notice of appeal) for both the statement of arrangements and the designation of clerk's papers and to extend the period allowed to file the verbatim report of proceedings from 45 to 60 days after filing the statement of arrangements. Under both the current rules and the proposed changes the report of proceedings is due 90 days from the filing of the notice of appeal. Therefore, the proposals do not extend the overall time allowed for the preparation of the record. The chart below depicts the current and proposed time frames for filing the designation of clerk's papers, the statement of arrangements and the verbatim report of proceedings.

     Currently the appellant has 45 days to file the statement of arrangements and only 15 to file the designation of clerk's papers. As indicated in the GR 9 cover sheet for Rule 9.2, appellants should not need 45 days to make arrangements for transcript to be prepared. It is more equitable to reduce that time to 30 days and increase the time for the reporter to prepare the transcript from 45 to 60 days, retaining the current requirement to file the transcript 90 days from the filing of the notice of appeal. Also, as indicated in the GR 9 cover sheet for Rule 9.6, 15 days is often not sufficient time to file the designation of clerk's papers. In criminal cases, the appellate attorney may not even be appointed by the due date. Allowing 30 days to file both the statement of arrangements and the designation of clerk's papers provides the appellant with sufficient time to review the trial court record and determine what to request in each document.

     This change should assist counsel by allowing for additional time for filing of the designation of clerk's papers. Court reporters will also benefit from this change since additional time is allowed for the filing of the verbatim report of proceedings.

     In addition to recommending a change in the time allowed to prepare the transcript, a second proposed change concerns section (a)(2), which states that if the transcript was computer generated, a diskette must also be filed. An additional proposed change to this section allows the filing of a compact disk rather than a diskette. Enforcement of this requirement is difficult in any event. If a diskette or compact disk is not provided, the court has no way of knowing whether it is a violation of the rule or if the transcript was not computer generated. Therefore, a proposed change to section (b) requires the court reporter to file a declaration notifying the court that either the transcript was computer generated and a diskette filed or that the transcript was not computer generated. See proposed new Form 15A.

     The new form reflects an additional proposed amendment to section (b). Currently the verbatim report of proceedings is filed in the trial court and notice of the filing is served on all other parties. The proposed change requires the appellate court to be served also. When serving the appellate court, the reporter is required to include the declaration stating whether or not the transcript was computer generated and if a diskette was filed.

     This requirement to serve the appellate court also provides notice to the court of the exact day the report of proceedings is filed. The first brief due date is set from the filing of the report of proceedings and there is currently no statewide procedure for trial courts to notify appellate courts of the filing. Often the appellate court does not know when a report of proceedings was filed until the transcript is received by the appellate court, which could be weeks after it was filed in the trial court.

     (a) Generally. The party seeking review must file an agreed or narrative report of proceedings with the clerk of the trial court within 60 45 days after the statement of arrangements is filed. The court reporter or person authorized to prepare the verbatim report of proceedings must file it within 60 45 days after the statement of arrangements is filed and all named court reporters are served. If the proceeding being reviewed was recorded on videotape, the transcript must be filed by the transcriber with the clerk of the trial court within 60 45 days after the statement of arrangements is filed and all named court reporters are served. The party who caused a report of proceedings to be filed should at the time of filing the report of proceedings serve notice that the report of proceedings has been filed and file proof of the service on all parties.

     (1) A party filing a brief must promptly forward a copy of the verbatim report of proceedings with a copy of the brief to the party with the right to file the next brief. If more than one party has the right to file the next brief, the parties must cooperate in the use of the report of proceedings. The party who files the last brief should return the copy of the report of proceedings to the party who paid for it

     (2) If the transcript was computer-generated, one diskette or compact disk (using ASCII format with hard page returns) shall be filed with the original verbatim report of proceedings and a second diskette or compact disk shall be provided to the party who receives the verbatim report of proceedings. The party who files the last brief should return the diskette or compact disk to the party who paid for the verbatim report of proceedings.

     (b) Filing and Service of Verbatim Report of Proceedings. If a verbatim report of proceedings cannot be completed within 60 45 days after the statement of arrangements is filed and served, the court reporter or video transcriber or authorized person shall, no later than 10 days before the report of proceedings is due to be filed, submit an affidavit to the party who ordered the report of proceedings stating the reasons for the delay. The party who requested the verbatim report of proceedings should move for an extension of time from the appellate court. The clerk will notify the parties of the action taken on the motion. When the court reporter or video transcriber or authorized person files the verbatim report of proceedings, a copy shall be provided to the party who arranged for transcription and either the reporter or video transcriber or authorized person shall serve and file notice of the filing on all other parties and the appellate court. The notice of filing served on the appellate court shall include a declaration that (1) the transcript was computer generated and an ASCII diskette or compact disk was filed or (2) the transcript was not computer generated. Failure to timely file the verbatim report of proceedings and notice of service may subject the court reporter or video transcriber or authorized person to sanctions as provided in rule 18.9.

     (c) - (d) Unchanged.

     Purpose: Rule 9.6 states that the party seeking review should file a designation of clerk's papers within 15 days after the notice of appeal is filed or discretionary review is granted. The proposal is to extend the filing time to 30 days. Often trial counsel files the notice of appeal and appellate counsel is not immediately assigned. It is not uncommon in a criminal case for the attorney to receive notice of an appointment after the expiration of the due date for the designation of clerk's papers. This proposed change recognizes current practice and is intended to reduce the number of requests for extension of time to file the designation.

     This proposed change is a companion to two other recommendations for amendments to Rules 9.2 (time for filing the statement of arrangements) and 9.5 (time for filing the verbatim report of proceedings). The purpose of the three recommendations is to set the same due date (30 days after the filing of the notice of appeal) for both the statement of arrangements and the designation of clerk's papers and to extend the period allowed to file the verbatim report of proceedings from 45 to 60 days after filing the statement of arrangements. Under both the current rules and the proposed changes the verbatim report of proceedings is due 90 days from the filing of the notice of appeal. Therefore, the proposals do not extend the overall time allowed for the preparation of the record. The chart below depicts the current and proposed time frames for filing the designation of clerk's papers, the statement of arrangements and the verbatim report of proceedings.

     Currently the appellant has 45 days to file the statement of arrangements and only 15 to file the designation of clerk's papers. As indicated in the GR 9 cover sheet for Rule 9.2, appellants should not need 45 days to make arrangements for transcript to be prepared. It is more equitable to reduce that time to 30 days and increase the time for the reporter to prepare the transcript from 45 to 60 days, retaining the current requirement to file the transcript 90 days from the filing of the notice of appeal. Also, as indicated above, 15 days is often not sufficient time to file the designation of clerk's papers. Allowing 30 days to file both the statement of arrangements and the designation of clerks papers provides the appellant with sufficient time to review the trial court record and determine what to request in each document.

     This change should assist counsel by allowing for additional time for filing of the designation of clerk's papers. Court reporters will also benefit from this change since additional time is allowed for the filing of the verbatim report of proceedings.

     (a) Generally. The party seeking review should, within 30 15 days after the notice of appeal is filed or discretionary review is granted, serve on all other parties and file with the trial court clerk and the appellate court clerk a designation of those clerk's papers and exhibits the party wants the trial court clerk to transmit to the appellate court. Any party may supplement the designation of clerk's papers and exhibits prior to or with the filing of the party's last brief. Thereafter, a party may supplement the designation only by order of the appellate court, upon motion. Each party is encouraged to designate only clerk's papers and exhibits needed to review the issues presented to the appellate court.

     (b) - (c) Unchanged.

     Purpose: Rule 10.1(d) governs the filing of pro se supplemental briefs. The proposed change deletes section (d). A new rule 10.10 is added to allow a defendant/appellant to provide a statement of additional grounds for review. Currently, an appellant/defendant may file a pro se supplemental brief in any criminal appeal. It appears that Minnesota is the only other jurisdiction that has an appellate rule comparable to Washington State's RAP 10.1(d). Some jurisdictions do not have any rules dealing with pro se supplemental briefs, while other jurisdictions allow such briefs with the permission of the court, and still others prohibit them altogether where the defendant is represented by counsel.

     These changes are proposed to speed the appellate processing of criminal cases and, possibly, reduce the cost of these cases. Currently, many defendant/appellants file intentions to file a pro se supplemental brief but actually never file the briefs. In 1999, there were 488 notices of intent filed and 239 briefs actually filed. The number of days from filing to opinion was 128 days longer for those cases in which a notice of intent to file a pro se supplemental brief was filed. The proposed change to this rule, along with new Rule 10.10, attempts to lessen the delay for these cases while preserving the essential purpose served by pro se supplemental briefs. Costs may be lessened somewhat, as a defendant/appellant must now request a transcript rather than having it provided routinely.

     Section (f) lists the types of briefs to be filed in cases involving cross review. This section was amended in 1996 and the proposed amendment corrects a mistake from the 1996 changes. Under (f)(4), the brief to be filed should read "reply brief of cross appellant" rather than "cross respondent." A number of attorneys have called the court to report this mistake and the proposed change corrects the problem.

     (a) - (c) Unchanged.

     (d) Pro Se Supplemental Brief in Criminal Case. A defendant/appellant in a review of a criminal case may file a brief supplementing the brief filed by the defendant/appellant's counsel, but only if the defendant/appellant files a notice of intention to file a pro se supplemental brief. The court will not accept a pro se supplemental brief from a defendant/respondent. The notice of intent should be filed within 30 days after the defendant/appellant has received the brief prepared by defendant/appellant's counsel, a notice from the clerk of the appellate court advising the defendant/appellant of the substance of this section, rules 10.2(e), and 10.3(d), and a form of notice of intention to file a pro se supplemental brief. The clerk will advise all parties if the defendant/appellant files the notice of intention. If a defendant/appellant files a notice of intent to file a pro se supplemental brief, the appellate court will provide a copy of the verbatim report of proceedings to the defendant/appellant. The cost for reproducing the verbatim report of proceedings for an indigent defendant/appellant will be reimbursed to the appellate court from the appellate indigent defense fund. [Reserved; see rule 10.10]

     (e) Unchanged.

     (f) Briefs in Cases Involving Cross Review. If a cross review is filed, the party first filing a notice of appeal or notice of discretionary review is deemed the appellant or petitioner for the purpose of this title, unless the parties otherwise agree or the appellate court otherwise orders. The following briefs may be filed in cases involving cross review: (1) brief of appellant, (2) brief of respondent/cross appellant, (3) reply brief of appellant/cross respondent, and (4) reply brief of cross respondent appellant.

     (g) - (h) Unchanged.

     Purpose: Rule 10.2 governs the time for filing of briefs. In section (d), the time for filing the reply brief refers to "oral argument." The proposed change deletes the reference to oral argument, since a significant number of cases are decided without oral argument. For cases that are decided without oral argument or that the court wishes to handle on an expedited schedule, the court can order the reply brief to be filed in fewer than the 30 days. The rule currently requires reply brief to be filed at least 14 days prior to oral argument if oral argument is set fewer than 30 days after the respondent's brief is filed.

     Section (e) is deleted since the change to rule 10.1 deletes the ability of a defendant/appellant to file a pro se supplemental brief. Proposed new Rule 10.9 allows the defendant/appellant to file a statement of additional grounds for review.

     (a) - (c) Unchanged.

     (d) Reply Brief. A reply brief of an appellant or petitioner should be filed with the appellate court within 30 days after service of the brief of respondent unless oral argument is set fewer than 30 days after the brief of respondent is filed. In that instance, the reply brief must be filed at least 14 days before oral argument the court orders otherwise.

     (e) Pro Se Supplemental Brief in Criminal Case. A pro se supplemental brief in a criminal case should be filed with the appellate court within 60 days after the defendant/appellant has been served with a verbatim report of proceedings. [Reserved; see rule 10.10.]

     (f) - (i) Unchanged.

     Purpose: Rule 10.3 outlines what is to be included in briefs. Section (d) refers to pro se supplemental briefs in a criminal case. The proposed change deletes this section consistent with changes also recommended in rules 10.1 and 10.2 and the addition of proposed new rule 10.9.

     (a) - (c) Unchanged.

     (d) Pro Se Supplemental Brief in Criminal Case. The pro se supplemental brief in a criminal case should be limited to those matters which defendant/appellant believes have not been adequately covered by the brief filed by the defendant/appellant's counsel. [Reserved; see rule 10.10.]

     (e) - (h) Unchanged.

     Purpose: Rule 10.4 lists the requirements for preparing and filing briefs. Sections (2) and (3) specify the requirements for the typeface, including a requirement that the typeface "appear in print as 12 point or larger type with no more than 10 characters per inch." Only one 12 point font has no more than 10 characters per inch, and most briefs are submitted in violation of this requirement. Because of this limiting factor, it is proposed to delete the requirement to have no more than 10 characters per inch. The rule still will require typeface in 12 point or larger.

     A second proposed change to section (a) adds that the brief may not contain any tabs, colored pages or binding and that it should be stapled in the upper left-hand corner. This requirement is necessary because the briefs are reproduced by the court and tabs, colored pages and binding require significant preparation prior to reproduction.

     (a) Typing or Printing Brief. Briefs shall conform to the following requirements:

     (1) An original and one legible, clean, and reproducible copy of the brief must be filed with the appellate court. The original brief should be printed or typed in black on 20-pound substance 8-1/2- by 11-inch white paper. Margins should be at least 2 inches on the left side and 1-1/2 inches on the right side and on the top and bottom of each page. The brief shall not contain any tabs, colored pages, or binding and should be stapled in the left-hand upper corner.

     (2) The text of any brief typed or printed in a proportionally spaced typeface must appear double spaced and in print as 12 point or larger type in the following fonts or their equivalent: Times New Roman, Courier, CG Times, Arial, or in typewriter fonts, pica or elite with no more than 10 characters per inch and double spaced. The same typeface and print size should be standard throughout the brief, except that footnotes may appear in print as 10 point or larger type and be the equivalent of single spaced. Quotations may be the equivalent of single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

     (3) The text of any brief typed or printed in a monospaced typeface shall be done in pica type or the equivalent at no more than 10 characters per inch. The lines must be double spaced. Quotations and footnotes may be single spaced. Except for material in an appendix, the typewritten or printed material in the brief shall not be reduced or condensed by photographic or other means.

     (b) - (h) Unchanged.

     Purpose: Rule 10.5 governs reproduction and service of briefs by the clerk. Included in section (b) is language that "the time for filing the next brief shall run from the time the preceding brief is served." The proposed amendment deletes this language since it is not part of the subject covered in this rule. The time for filing briefs is included in rule 10.2.

     The proposed change to section (c) conforms the rule to proposed new rule 10.9 on Statement of Additional Grounds for Review.

     (a) Unchanged.

     (b) Distribution of Brief. A party filing a brief must serve it in accordance with rules 10.2(h) and 18.5(a). The time for filing the next brief shall run from the time the preceding brief is served. The state law librarian shall determine how many copies of briefs from the Supreme Court and the Court of Appeals are to be transmitted to the State Law Library. The briefs will be transmitted by the clerks and provided at no cost to the State Law Library.

     (c) Service and Notice to Appellant in Criminal Case when Defendant is Appellant. In a criminal case, the clerk will, at the time of filing of defendant/appellant's brief, serve advise the defendant/appellant with a notice and form as provided in of the provisions of rule 10.1(d) 10.10.

     Purpose: Rule 10.7 requires briefs to comply with the requirements in Rules 10.3 and 10.4 and lists remedies available to the court and parties when a brief is not in compliance. The proposed change requires a brief to comply with all rules in Title 10. The change is needed because there are other rules in Title 10 addition to 10.3 and 10.4 that list requirements for briefs. Parties need to be put on notice that briefs are subject to all the rules.

     If a party submits a brief which that fails to comply with the requirements for content, style, legibility, and length provided by rules 10.3 and 10.4 of Title 10, the appellate court, on its own initiative or on the motion of a party, may (1) order the brief returned for correction or replacement within a specified time, (2) order the brief stricken from the files with leave to file a new brief within a specified time, or (3) accept the brief. The appellate court will ordinarily impose sanctions on a party or counsel for a party who files a brief which that fails to comply with these rules.

     Purpose: This proposed amendment would allow a party, or amicus curiae, to file a statement of additional authorities, without argument. The Committee recommended no change to the "without argument" provision, but did believe that it would assist the court if the rule provided that the statement "should identify the issue for which the authority is offered."

     A party or amicus curiae may file a statement of additional authorities,. The statement should not contain without argument, but should identify the issue for which each authority is offered. The statement must be served and filed prior to the filing of the decision on the merits or, if there is a motion for reconsideration, prior to the filing of the decision on the motion.

     Purpose: This proposed new rule would "allow and encourage" a party to file a "corresponding brief" on CD-ROM, as a supplement to, rather than as a replacement for, the traditional printed brief. Such briefs, especially if they are "hyperlinked," would provide the appellate courts and the parties with a powerful tool for arguing and deciding cases. (Hyperlinked briefs contain textual links to the report of proceedings, clerk's papers, and citations of authority.) They can also be much more convenient to use than printed materials, lessening the court's preparation time.

     The parties want, or should want, to limit their briefs to factual statements supported by the record. They want the judges and their law clerks to be able to check the briefs of both sides against the record, and to easily verify whether their legal arguments are supported by cited authorities. Particularly useful in cases with a lengthy report of proceedings or many documents, hyperlinked briefs allow the court to check the briefs against the record and the legal authorities without the inconvenience of searching through the transcript or the law library.

     Because the appellate rules don't authorize these kind of briefs, parties desiring to use them may face an objection that the court shouldn't accept something for filing if it is not authorized by the rules. The proposed rule would eliminate that hurdle. The Committee was concerned, however, that a party lacking the resources of another party could be forced to choose between paying for something beyond its means and being at a disadvantage in the appellate process. As a policy matter, it was believed that any rule should neither force a party to prepare a corresponding brief nor be required to pay for it (i.e., have it imposed as a cost) after the fact. The rule was drafted to address these concerns.

     Section (a) authorizes such briefs, subject to the conditions of the rule itself and any general orders that may be adopted by the Supreme Court or the divisions of the Court of Appeals. Section (d) provides that no party is required to submit a corresponding or hyperlinked brief, although the party is required to cooperate in good faith with another party seeking to do so by providing a computer readable version of its brief(s). Section (b)(1) requires that a CD-ROM with corresponding briefs must contain all briefs filed by all parties, and that if any of the briefs are hyperlinked, all must be. The submitting party must prepare, and bear the cost of, the hyperlinking. Section (f) makes clear that the costs of preparing and filing corresponding briefs are not recoverable as costs or attorney fees under the appellate rules. The Committee's thinking was that, absent a joint effort, the party desiring to submit a hyperlinked brief would make an informed economic decision on whether it was worth the cost to do so for all parties - including those with presumably lesser resources.

     Other sections of the proposed rule address notice, format, and timing requirements. Section (b)(2) requires that corresponding briefs be accompanied by a statement setting forth instructions for viewing the briefs, including the minimum equipment necessary for viewing. Section (b)(3) requires an accompanying statement that is to verify the absence of computer viruses and list the software used to ensure that the CD-ROM briefs are virus-free.

     (a) Filing Corresponding Briefs on Compact Disc. The submission of briefs and appendices on compact disc read-only memory (CD-ROM), referred to in this rule as corresponding briefs, filed as companions to printed briefs is allowed and encouraged, provided that the Supreme Court and each Division of the Court of Appeals may by general order vary any of the conditions of this Rule, and may prohibit the filing of corresponding briefs.

     (b) Conditions of filing. A party may file corresponding briefs upon 14 days notice to all other parties and the court, subject to the following requirements:

     (1) Content. A CD-ROM with corresponding briefs must contain all appellate briefs filed by all parties. Corresponding briefs must be identical in content to the paper briefs. Corresponding briefs may provide hypertext links to the report of proceedings and clerks papers and to materials cited in the briefs such as cases, statutes, treatises, law review articles, and similar authorities. If any briefs are hyperlinked, all briefs must be similarly hyperlinked by the submitting party.

     (2) Format. Corresponding briefs must come fully equipped with their own viewing program; or, if the disk does not contain its own viewing program, the briefs must be viewable within a version of a program such as Adobe Acrobat, Microsoft Word Viewer, or WordPerfect that is downloadable from the Internet at no cost to the user.

     (3) Statement Concerning Instructions and Viruses. Corresponding briefs must be accompanied by a statement, preferably within or attached to the packaging, that

     (A) sets forth the instructions for viewing the briefs and the minimum equipment required for viewing; and

     (B) verifies the absence of computer viruses and lists the software used to ensure that the briefs are virus-free.

     (c) Joint Submission. Upon receiving notice of intent to file corresponding briefs, within 14 days any other party may file notice of intent to join in the submission. When one or more parties join in the submission, the parties shall cooperate in preparing a joint submission. Absent agreement to the contrary, each party shall arrange for preparation of its own briefs for the joint submission and the party first giving notice shall create the CD-ROM.

     (d) Non-Joint Submission. No party is required to prepare a corresponding brief. A party shall cooperate in good faith in the preparation of corresponding briefs by expeditiously providing the submitting party with the party's brief or briefs in electronic format, if available.

     (e) Time of Filing. Corresponding briefs must be filed no later than 60 days after the final reply brief. This rule does not affect deadlines for paper briefs. Additional time may be granted for completion of the corresponding briefs.

     (f) Costs. The costs incurred in preparing and filing corresponding briefs are not recoverable costs under Title 14 or as attorney fees under Title 18 of these Rules.

     Purpose: This is a new rule. It replaces sections in other rules (see RAP 10.1(d), 10.2(e), 10.3(d)) that currently provide a defendant/appellant with the opportunity to file a pro se supplemental brief in criminal appeals. Instead of filing a pro se supplemental brief, a defendant/appellant will be allowed to file a Statement of Additional Grounds for Review.

     Current Practice: Current rules allow an appellant in every criminal appeal to file a pro se supplemental brief to raise issues the appellant believes were not adequately addressed in counsel's brief. When counsel serves the appellant a copy of counsel's briefs, the clerks of the appellate courts serve him or her with a form notice of intent to file a pro se supplemental brief. Upon the return of the completed form, the clerks provide the appellant/defendant with a copy of the report of proceedings (expenses reimbursed by the Office of Public Defense, if appropriate), and the appellant/defendant then has 60 days within which to file a supplemental brief. Washington is the only state with such a provision.

     The pro se supplemental brief helps satisfy the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by allowing the defendant an opportunity to raise issues in appeals in which counsel requests permission to withdraw after concluding there are no arguable issues of merit. While infrequent, issues raised in the pro se by brief have resulted in reversal, remand or dismissal in Anders appeals and even in those in which counsel has not filed an Anders brief. In addition, the opportunity for the defendant/appellant to file a pro se supplemental brief is highly regarded by appellate defenders as providing an outlet for appellants to raise, pro se, issues that counsel is unwilling or unable to.

     But pro se supplemental briefs are available in all criminal appeals, not just Anders appeals, and statistics indicate use of pro se supplemental briefs is increasing. There are several problems under the current rules. Statistics demonstrate that the mere filing of the notice of intent to file a pro se supplemental brief adds 5 1/2 to 7 1/2 months to the total length of time a criminal appeal is in the Court of Appeals, regardless of whether a pro se supplemental brief is filed (and they are filed in less than 50% of the cases in which the notice of intent is filed). Second, notwithstanding State v. Romero, 95 Wn. App. 323, 975 P.2d 564, review denied, 138 Wn.2d 1020 (1999) (no right to hybrid representation on appeal, and pro se appellant not entitled to act as counsel by filing motions, etc.), pro se supplemental briefing issues consume significant staff and docket time. Finally, the real value of pro se supplemental briefs is their identification of issues -- not their citation to the record or to legal authorities.

     Proposed Practice: Instead of granting blanket permission to file a pro se brief in every criminal appeal, the proposed rule, in effect, simply lets defendants/appellants write the court a letter explaining in their own words why the trial was unfair. If the statement is sufficiently specific and raises sufficiently meritorious issues, the court may, in its discretion, pursue the matter by resolving the issue, asking counsel to brief it, asking the State to respond, ordering production of the necessary record on its own initiative, etc. But the court would have no obligation whatsoever to respond to the statement point-by-point or to review the issues identified. The proposed rule has these advantages:

     1) As in the case of the pro se supplemental briefs, defendants/appellants can use the process to raise those issues counsel has declined to raise.

     2) Neither the court nor counsel is required to send the record to the defendants/appellants automatically. If the defendant/appellant specifically requests a transcript, counsel is to provide a copy, thus relieving court staff of this burden. (In an indigent appeal, counsel will be able to recover the costs from the Office of Public Defense, as does the court now; there is thus no net fiscal impact. It is possible that there will be some savings, because the report of proceedings will not be automatically provided as it is now when defendant/appellant files a notice of intent to file a pro se supplemental brief.)

     3) Access to justice is granted, yet it remains clear that there is no right to file a pro se brief. As noted above, a transcript must be specifically requested from defendant/appellant's counsel.

     4) Defendants/appellants may cite legal authority if they want to, and they may fashion their statement into "briefs," but it would no longer be necessary for them, as persons without legal training, to force their statements into a rigid and unfamiliar format.

     5) Delay, which prejudices the interests of both the defendants/appellants and the State, would be reduced. Although the rule allows 30 days for defendants/appellants to file their statements, it should not take very long for to describe the particular events that rendered the proceeding unfair or the sentence erroneous.

     6) Pro se submissions do not have to be permitted or rejected by anyone at the court before being considered. There will be no rule-based scrutiny for substance or content or specificity or conformity to format -- except, perhaps, for legibility, length, and service upon counsel.

     In Summary: The real value of pro se supplemental pleadings on appeal is the identification of issues not addressed by counsel. Citation to the record, formal citation to legal authority, and compliance with briefing format rules by untrained defendants/appellants are not necessary. Nor is a complete verbatim report of proceedings required in every case.

     (a) Statement Permitted. A defendant/appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which 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 RAP 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.

     (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: Rule 11.4 addresses the time allowed and order of argument. The proposed change incorporates the provisions of Rules 11.5 and 11.6. The title of the rule is changed to reflect the addition of the new provisions. The amended rule will allow counsel to refer to one rule for all aspects concerning the conduct of argument.

     (a) - (e) Unchanged.

     (f) Scope of Argument. The court ordinarily encourages oral argument. The opening argument should include a fair and concise statement of the facts of the case. Counsel need not argue all issues raised and argued in the briefs.

     (g) Reading at Length. Counsel should avoid reading at length from briefs, records, or authorities.

     (h) Duplication of Argument. Counsel should avoid duplication of argument, particularly if there are multiple parties arguing in support of the same issue.

     (i) Use of Exhibits. Counsel may, to promote clarity of argument, use exhibits brought up as a part of the record and demonstrative or illustrative exhibits not a part of the record. Counsel should arrange, before court convenes, for the placement in the courtroom of exhibits and equipment to be used in oral argument.

     (j) Submitting Case without Oral Argument. The appellate court may, on its own initiative or on motion of all parties, decide a case without oral argument.

     Purpose: This amendment is a companion to that for rule 11.4, which proposes to incorporate rule provisions concerning oral argument into a single rule. The text of the rule is deleted, but the rule number is retained as "reserved."

     (a) Scope of Argument. The court ordinarily encourages oral argument. The opening argument should include a fair and concise statement of the facts of the case. Counsel need not argue all issues raised and argued in the briefs.

     (b) Reading at Length. Counsel should avoid reading at length from briefs, records, or authorities.

     (c) Duplication of Argument. Counsel should avoid duplication of argument, particularly if there are multiple parties arguing in support of the same issue.

     (d) Use of Exhibits. Counsel may, to promote clarity of argument, use exhibits brought up as a part of the record and demonstrative or illustrative exhibits not a part of the record. Counsel should arrange, before court convenes, for the placement in the courtroom of exhibits and equipment to be used in oral argument.

     Purpose: This amendment is a companion to that for rule 11.4, which proposes to incorporate rule provisions concerning oral argument into a single rule. The text of the rule is deleted, but the rule number is retained as "reserved."

     The appellate court may, on its own initiative or on motion of all parties, decide a case without oral argument.

     Purpose: Rule 12.3 concerns the forms of decisions; section (e) discusses motions to publish, including a requirement that a motion must be filed within 20 days after the opinion has been filed. The proposed change relates to the content of motions to publish. Requirements for motions made by a person not a party are deleted and replaced with language requiring all motions to address specific criteria for determining whether or not an opinion should be published. The criteria include, in sections (e)(1) and (2), the current criteria for a motion made by a person not a party and, in sections (e)(3) through (6), the criteria contained in section (d) of the rule. Thus, the same criteria used by a panel of judges when deciding, under section (d), whether or not to publish an opinion will be used in ruling on a motion to publish with the addition of the two criteria relating to persons not a party to the case. Adopting this change will mean that there is a single set of criteria to be applied to any decision to publish an opinion.

     The Committee added a requirement that the motion be served as well as filed, along with a provision that rule 17.4 on motions applies to motions to publish.

     (a) - (d) Unchanged.

     (e) Motion to Publish. A motion requesting the Court of Appeals to publish an opinion that had been ordered filed for public record should be served and filed within 20 days after the opinion has been filed. If the motion is made by a person not a party, the The motion must be supported by addressing the following criteria: include a statement of (1) if not a party, the applicant's interest and the person or group applicant represents; and (2) applicant's reasons for believing that publication is necessary; (3) whether the decision determines an unsettled or new question of law or constitutional principle; (4) whether the decision modifies, clarifies or reverses an established principle of law; (5) whether the decision is of general public interest or importance; or (6) whether the decision is in conflict with a prior opinion of the Court of Appeals. Rule 17.4 applies to motions to publish.

     Purpose: This rule covers the filing of motions for reconsideration of decisions terminating review. The proposed change is in section (h), where it states that a party may file only one motion for reconsideration, even if the appellate court modifies its decision or changes the language in the opinion rendered by the court. The proposed change clarifies that if the court withdraws its opinion, a party adversely affected by the subsequent opinion may file a motion for reconsideration. Adoption of this proposal will give parties an opportunity to file a second motion for reconsideration when an opinion has been substantively changed.

     A few members of the Committee wondered whether a party's rights should depend on whether the appellate court uses the word "withdrawn" instead of "modified," but a majority believed that the proposed change was clearer and "cleaner," and that other formulations might result in an unacceptable lengthening of the appeals process.

     (a) - (g) Unchanged.

     (h) Only One Motion Permitted. Each party may file only one motion for reconsideration, even if unless the appellate court modifies its decision or changes the language in the opinion rendered by the court withdraws its opinion and files a subsequent opinion. Any party adversely affected by the subsequent opinion may file a motion for reconsideration.

     (i) Unchanged.

     Purpose: Rule 12.7(a) specifies when the Court of Appeals loses the power to change or modify its decision. The proposed change adds a third section to include cases where the court has not accepted review of a motion for discretionary review and has issued a certificate of finality. Once the certificate has been issued, the court no longer has the power to change or modify the decision to accept or reject review. Adoption of this change clarifies that authority.

     (a) Court of Appeals. The Court of Appeals loses the power to change or modify its decision (1) upon issuance of a mandate in accordance with rules 12.5, except when the mandate is recalled as provided in rule 12.9, or (2) upon acceptance by the Supreme Court of review of the decision of the Court of Appeals, or (3) upon issuance of a certificate of finality as provided in rule 12.5(e) and rule 16.15(e).

     (b) - (d) Unchanged.

     Purpose: The amendment to section (a) adds denial of a timely motion to publish as a triggering point for filing a petition for discretionary review. If a party loses an appeal in the Court of Appeals, the decision to seek discretionary review may hinge upon whether the decision will be published. The party may believe that publication of the decision would create a bad precedent and wish to make a final attempt at avoiding that result. Other changes to this section are structural. The committee believed that in the average situation no motions are filed; thus, the part of the rule addressing this circumstance should come first.

     The amendment to section (b) would make a conflict of decisions within a division of the Court of Appeals a ground for discretionary review, in addition to conflicts between divisions. In some respects, the former are more difficult for the practitioner than the latter. With a conflict between divisions, a lawyer can at least know the governing law depending on the county he or she is in. Given the lack of a mechanism for the Court of Appeals to harmonize decisions between different panels, the committee believed sound public policy supported the amendment.

     (a) How to Seek Review. A party seeking discretionary review by the Supreme Court of a Court of Appeals decision terminating review must file a petition for review or an answer to the petition which raises new issues. If no motion to publish or motion to reconsider all or part of the Court of Appeals decision is made, a petition for review must be filed within 30 days after the decision is filed. If such a motion is made, the The petition for review must be filed in the Court of Appeals within 30 days after an order is filed denying a timely motion for to reconsideration or motion to publish of all or any part of that decision. If the petition for review is filed prior to the Court of Appeals determination on the motion for reconsideration to reconsider or on a motion to publish, the petition will not be forwarded to the Supreme Court until the Court of Appeals files an order on all such motions. If no motion for reconsideration of all or part of the Court of Appeals decision is made, a petition for review must be filed within 30 days after the decision is filed. The first party to file a petition for review must, at the time the petition is filed, pay the statutory filing fee to the clerk of the Court of Appeals in which the petition is filed.

     (b) Considerations Governing Acceptance of Review. A petition for review will be accepted by the Supreme Court only: (1) If the decision of the Court of Appeals is in conflict with a decision of the Supreme Court; or (2) If the decision of the Court of Appeals is in conflict with a another decision of another division of the Court of Appeals; or (3) If a significant question of law under the Constitution of the State of Washington or of the United States is involved; or (4) If the petition involves an issue of substantial public interest that should be determined by the Supreme Court.

     (c) - (i) Unchanged.

     Purpose: Rule 14.6 governs awards of costs. Section (c) requires the commissioner or clerk to award costs in the mandate or in a post-mandate ruling or order. The proposed change requires the commissioner or clerk to also award costs in a certificate of finality. The change is also paralleled in the proposed change to RAP 18.1(h). This change is proposed to conform to current practice. The change also puts personal restraint petitioners on notice that costs may be awarded. The change will provide some direction to county clerks regarding the action they need to take when they receive certificates of finality.

     (a) - (b) Unchanged.

     (c) Transmitting Costs. The commissioner or clerk will award costs in the mandate or the certificate of finality or in a post-mandate ruling or order. An award of costs may be enforced as part of the judgment in the trial court.

     Purpose: Rule 17.2(a) lists the motions to be decided by a judge. The proposed change clarifies the requirement for a judge to decide a motion to recall a mandate. Often mandates are recalled because they were inadvertently issued. This generally occurs when a petition for review has been filed with the Supreme Court and the Court of Appeals is not served. Unaware that the case is being appealed, the Court of Appeals files the mandate and then must recall it upon learning that the case is still in the appellate process. This amendment will allow a commissioner or clerk to recall the mandate and will save judicial time.

     The amendment is not intended to cover the situation where the appellate court wants to know if the trial court has complied with the appellate court's mandate. A judge will still decide this kind of motion.

     (a) Generally. The judges determine (1) a motion in a brief, (2) a motion to modify a ruling by a commissioner or the clerk, (3) a motion for reconsideration of a decision, (4) a motion to recall the mandate, except for a motion made to correct an inadvertently issued mandate, and (5) a motion to publish. All other motions may be determined initially by a commissioner or the clerk of the appellate court.

     (b) - (c) Unchanged.

     Purpose: Rule 17.3(b) describes the content of a motion for discretionary review. Section (b)(8) lists items that must be in an appendix and items that may be included. The proposed change moves the relevant parts of the record from the optional list to the mandatory list. This change is required because the portions of the record that are relevant to the motion need to be before the court in order for it to review and decide the motion. The word "conformed" is deleted because the copies provided do not need to be conformed copies.

     (a) Unchanged.

     (b) Motion for Discretionary Review. A motion for discretionary review should contain under appropriate headings and in the order here indicated:

     (1) - (7) Unchanged.

     (8) Appendix. An appendix containing a conformed copy of the decision which the party wants reviewed, and a conformed copy of any order granting or denying motions made with respect to that decision, and a copy of parts of the record relevant to the motion. In addition, the appendix may include copies of statutes and constitutional provisions relevant to the issues presented for review, a conformed copy of parts of the record relevant to the motion, and other material which would assist the court in determining whether the motion should be granted.

     (c) Unchanged.

     Purpose: Rule 17.4 governs motion practice. Section (e) outlines the process for an answer and reply to a motion. The rule currently requires an answer to a motion to be served and filed at least 4 days prior to the day of hearing. The proposed change amends that requirement by inserting language "unless directed otherwise by the court." Because most motions are decided without a hearing, there is no scheduled hearing date to use to determine the due date for filing the answer. The amendment allows the court to establish a schedule. It reflects the practice in all divisions of the Court of Appeals.

     (a) - (d) Unchanged.

     (e) Answer to Motion; Reply. A person with a recognized interest in the subject matter of the motion may submit a written answer to the motion. If the motion is to be determined without oral argument, the court will set a date for the filing of the answer to the motion. If the motion is set for oral argument, the An answer to a motion must be served and filed at least 4 days preceding the day of hearing. If service is by mail, the answering party must mail the answer at least 7 days before the day noted for hearing the motion. The answer to a motion within a brief may be made within the brief of the answering party. The moving party may submit a written reply to the answer to the motion. If the motion is to be determined without oral argument, the court will set a date for the filing of a reply. If the motion is set for oral argument, the A reply to an answer must be served and filed by noon 2 days before the hearing.

     (f) - (g) Unchanged.

     Purpose: Rule 18.1 governs attorney fees and expenses. Section (c) requires the Affidavit of Financial Need to be filed no later than 10 days prior to the time set for oral argument. The proposed change replaces "oral argument" with "hearing" to reflect the current practice of deciding cases without oral argument.

     Section (e) outlines how a party answers an affidavit. The proposed change requires the party objecting to the request for fees and expenses to provide documentation containing the specific objections. The title of this section is changed to more accurately reflect the purpose of the section. This will provide the court with better information to use in the decision-making process.

     Section (h) requires the clerk to include the award of attorney fees and expenses in the mandate or in a post-mandate ruling or order. The proposed change requires the clerk to also include the award of attorney fees and expenses in a certificate of finality. (The change is also paralleled in the proposed change to RAP 14.6(c).) This change is proposed to conform to current practice. The change also puts Personal Restraint Petitioners on notice that costs may be awarded. The change will provide some direction to county clerks regarding the action they need to take when they receive certificates of finality.

     (a) - (b) Unchanged.

     (c) Affidavit of Financial Need. In any action where applicable law mandates consideration of the financial resources of one or more parties regarding an award of attorney fees and expenses, each party must serve upon the other and file a financial affidavit no later than 10 days prior to the time date the case is set for oral argument hearing or submitted for consideration; however, in a motion on the merits pursuant to rule 18.14, each party must serve and file a financial affidavit along with its motion or response.

     (d) Unchanged.

     (e) Answer Objection to Affidavit; Reply. A party may answer object to a request for fees and expenses filed pursuant to section (d) by serving and filing an answer answering documents with appropriate documentation containing specific objections to the requested fee. The response must be filed within 10 days after service of the affidavit upon the party. In a rule 18.14 proceeding, an answer to an affidavit of financial need may be served and filed at any time before oral argument. A party may reply to an answer by serving and filing the reply documents within 5 days after the service of the answer upon that party.

     (f) - (g) Unchanged.

     (h) Transmitting Judgment on Award. The clerk will include the award of attorney fees and expenses in the mandate, or the certificate of finality, or in a supplemental judgment. The award of fees and expenses may be enforced in the trial court.

     (i) - (j) Unchanged.

     Purpose: The committee determined that this rule did not need two sections and redrafted it as a single sentence for improved brevity and clarity.

     (a) If Further Proceedings Ordered. If a case is returned to the trial court for further proceedings, exhibits in the custody of the appellate court will be returned to the trial court.

     (b) When Case Is Mandated.* When a case is mandated, pursuant to rule 12.5, or returned to the trial court for further proceedings, all exhibits in the custody of the appellate court will be returned to the trial court.

     *Suggested title added by publisher [in West version of the rules].

     Purpose: Rule 18.13 provides for "accelerated review" of certain juvenile dispositions and termination of parental rights cases using a motion procedure in the Court of Appeals. Although such review proceedings have taken place on the merits for a number of years, the committee believed that there might still be some confusion about the rule. It thus proposed an amendment to section (a) adding the phrase "on the merits" after the words "shall be reviewed."

     Section (e) sets forth the manner in which the Supreme Court will review a decision by the Court of Appeals on accelerated review that relates only to a juvenile offense, dependency or termination of parental rights disposition. The rule states that the process is governed by rule 13.5 (a), (b), and (c), which apply to discretionary review of an interlocutory decision. The proposed change adds rule 13.3(e) to the list of rules governing the Supreme Court review process. This change is required because rulings under 18.13 are typically made by commissioners and rule 13.3(e) contains provisions for review of decisions by commissioners or clerks. Rule 13.3(e) clarifies that rulings under 18.13 are not subject to review by the Supreme Court. A motion to modify must first be filed; a decision by the Court of Appeals on a motion to modify may then be subject to review by the Supreme Court under Rule 13.3.

     (It should be noted, regarding the amendment to section (a), that the purpose statement to a 1991 amendment to this section stated "...it should be made clear that the decision 'on accelerated review' refers to the Court of Appeals decision on the merits...." 115 Wn.2d xvi (January 9, 1991))

     Finally, the committee determined that a new section (g) should be added listing required attachments to the motion and response in dependency and termination of parental rights cases. Attaching the trial court's findings and conclusions, making assignments of error, and setting forth the appropriate standard of review will help the appellate court focus on the issues and render better decisions.

     (a) Generally. Dispositions in a juvenile offense proceeding beyond the standard range for such offenses, juvenile dependency and termination of parental rights, shall be reviewed on the merits by accelerated review as provided in this rule.

     (b) - (d) Unchanged.

     (e) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to a juvenile offense disposition, juvenile dependency and termination of parental rights is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5 (a), (b) and (c).

     (f) Unchanged.

     (g) Content of Motion and Response. In addition to the requirements of section (b) of this rule, a party appealing from the disposition decision following a finding of dependency by a juvenile court or a decision depriving a person of all parental rights with respect to a child should (1) append to the motion a copy of the trial court's finding of facts and conclusions of law and copies of all dependency review orders; (2) identify by specific assignments of error those findings and conclusions challenged on appeal; and (3) set forth the applicable standard of governing review of those issues. Counsel for the respondent should respond to each assignment of error and should provide citations to the record for any evidence supporting the trial court's findings.

     Purpose: The amendment to section (a) is proposed for the same reason as that proposed for rule 18.13(a). Likewise, the amendment to section (g) is proposed for the same reason as that proposed for rule 18.13(e).

     (a) Generally. A sentence which is beyond the standard range may be reviewed on the merits in the manner provided in the rules for other decisions or by accelerated review as provided in this rule.

     (b) - (f) Unchanged.

     (g) Supreme Court Review. A decision by the Court of Appeals on accelerated review that relates only to an adult sentence is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rules 13.3(e) and 13.5 (a), (b) and (c).

     Purpose: The amendment adds to this rule a reference to rule 10.3(c), which places restrictions on extensions of the time in which a party must file a notice of appeal.

     Filing a notice of appeal within 30 days is a standard "deadline." Few circumstances warrant extension of this time, and all parties should be entitled to finality of judgment after 30 days.

     The original RALJ rules contained a strict limitation on extensions of time to file a notice of appeal. In 1990, when several amendments to the RALJ were proposed and adopted, it appears that the provision restricting extensions of time for filing the notice was inadvertently omitted. Rule 10.3, adopted in 1998, restored the restriction; however, no cross-reference was inserted into rule 1.2. This proposal remedies that situation.

     (a) Unchanged.

     (b) Application of Rules. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules, except as provided in rules 10.2 and 10.3(c). A party's right to proceed further in an appeal may be conditioned on compliance with the terms of a sanction order under rule 10.1.

     Purpose: This proposed amendment provides that when a party seeks discretionary review of a superior court decision reviewing a decision of a court of limited jurisdiction, the original record of proceedings and transcript considered by the superior court is to be transmitted to the appellate court. The amendment is intended to obviate a practice that has occurred on at least some occasions whereby a superior court refused to transmit the original record and instead advised that it would have to make a copy. The rationale for this was that somehow the court of limited jurisdiction record had become a part of the superior court record.

     On discretionary review, the Court of Appeals should have before it the record considered by the superior court, just as on petitions for review the Supreme Court has before it the record considered by the Court of Appeals.

     See also the proposed amendment to RAP 9.1.

     When a party has filed a notice for discretionary review of the superior court decision, the record of proceedings and the transcript of the electronic record considered by the superior court on direct appeal shall be transmitted to the appellate court. Upon completion of the appeal and any subsequent proceedings for review by the Court of Appeals or Supreme Court, the superior court shall return to the court of limited jurisdiction the record of proceedings transmitted pursuant to RALJ 6.1(a). Transcripts provided pursuant to RALJ 6.3A shall not be returned to the court of limited jurisdiction.

     Purpose: The proposed amendment would require the clerk of the superior court to notify the court of limited jurisdiction of the superior court's decision in a timely fashion.

     Currently, the rule permits the clerk to remand the case before expiration of the time for filing a notice of appeal or notice for discretionary review in the Court of Appeals. The rule also contains no limit on the time for the superior court to remand the case following expiration of the time to seek review. Issuance of the mandate prematurely can substantially delay the appeal process. Untimely remand to the trial court can also delay final resolution of the case.

     The proposal imposes reasonably time limits upon both circumstances.

     (a) Unchanged.

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

     (c) - (e) Unchanged.

     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.

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

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