RULES OF COURT
|IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO IRLJ 6.7||)
Now, therefore, it is hereby
(a) That pursuant to the provisions of GR 9(g), the proposed amendment as attached hereto is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously.
(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.
(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 60 days from the published date of the rule in the Washington Reports. 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 October 2005.
|For the Court|
|Gerry L. Alexander|
IRLJ 6.7 IDENTITY CHALLENGES AND RELIEF FROM JUDGMENT
During legislative hearings in 2005, some legislators and witnesses expressed concerns that current law does not provide a specific procedure for victims of identity misrepresentation on tickets (when an offender gives another person's name to the citing officer) to request relief from the courts.
Legislators were assured that despite the absence of a specific procedure in the rules, the courts of limited jurisdiction routinely hold identity hearings when the defendant before the court asserts that he or she was not the person actually given the ticket. However, there is still concern that the practice is not universal and that procedures are inconsistent and sometimes not well defined.
In 2006, the Legislature will be asked to again consider legislation that will permit the use of electronic citations and notices of infraction without requiring the signature of the defendant. This change was supported by DMCJA and BJA in 2005, but legislation failed to pass. Some legislators and witnesses expressed concern that the change might increase the incidence of identity misrepresentation while potential victims may not have adequate access to the courts. The suggested changes to IRLJ 6.7 would establish a specific procedure for identity challenges to infractions, which is similar to the procedure used now by the courts when a defendant contends that he or she is not the person responsible for the ticket.
If the changes to IRLJ 6.7 are adopted by the Supreme Court, the revised rule will address the concerns that some legislators and witnesses had about whether defendants were being given an adequate opportunity to challenge identity. Revising the rule will also ensure that the procedure adopted for identity hearings has been drafted by the courts, which are in the best position to draft and implement court procedures.
Section (b)(1) ensures that a defendant will not lose the right to request a hearing to vacate a judgment pursuant to CRLJ 60(b).
Section (b)(2) places the initial burden on the defendant to establish the basis for an identity hearing through the use of an affidavit or certification with facts specific to his or her case.
Section (b)(3) allows the court the discretion to set aside a default based upon a failure to appear. A judge may consider the strength of the facts alleged in the affidavit when deciding whether to set aside the default pending the hearing.
Section (b)(4) follows the requirements for the scheduling of contested hearings found in IRLJ 2.6(a) with the exception of that rule's 14-day period for the court to provide notice of the hearing date, time and place to the defendant after receipt of a hearing request. Since the identity hearing process requires the court to review the defendant's affidavit(s) prior to setting the hearing, section (b)(4) gives the court up to 28 days to provide notice of the hearing date, time and place to the defendant. (A proposed change to IRLJ 2 (b)(a)(2) was published by the Supreme Court for comment on August 2, 2005. The proposed change would extend the time within which the court must provide notice of hearing from 14 days to 21 days.)
Section (b)(5) concerns the procedure at an "identity hearing." Upon the defendant fulfilling the initial burden required by section (b)(2), the citing jurisdiction will have the burden of proving identity. Therefore, the courts are given the option of whether to require the presence of the defendant. In most cases, identity will be established by a citing officer using a copy of the notice of infraction and his or her memory of the incident. The rule makes the point, however, that the citing jurisdiction need not rely only upon the memory of the citing officer, perhaps months or years later.
IDENTITY CHALLENGES AND RELIEF FROM JUDGMENT
(a) Relief from Judgment. A motion to waive or suspend a fine, or to convert a penalty to community service, or to vacate a judgment is governed by CRLJ 60(b).
(b) Identity Challenge.
(1) Right Granted. In addition to the rights granted defendants pursuant to rule 6.7(a), a defendant may move to vacate a judgment that was entered after a failure to respond to a notice of infraction on the basis that he or she was mistakenly identified as the person who allegedly committed the infraction.
(2) Identity Affidavit. A defendant moving to vacate a judgment for mistaken identification shall file an affidavit or certification under RCW 9A.72.085 with the court in which the infraction was found committed and with the office of the prosecuting authority assigned to the court stating that he or she could not be the person identified by the citing officer as having committed the infraction, citing a factual basis for the assertion and stating that he or she was not served with the notice of infraction.
(3) Adjudication Pending Hearing. The court may, at its discretion, set aside the default judgment pending the hearing.
(4) Scheduling of Hearings. An identification hearing shall be scheduled for not less than 14 days and not more than 120 days from the date an identity affidavit is filed unless otherwise agreed by the defendant. The court shall send the defendant written notice of the time, place, and date of the hearing within 28 days of the receipt of the request for a hearing.
(5) Hearing Procedure. The court may require the presence of the defendant at the scheduled hearing. At the hearing, identification may be established by methods other than direct identification in court.
(6) Disposition. If the court determines that the named defendant was the person identified by the citing officer as the person who committed the infraction or was served with the notice of infraction, the infraction shall remain committed or be re-adjudicated as committed.