IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 6.2-DISCRETIONARY REVIEW, RAP 9.2-VERBATIM REPORT OF PROCEEDINGS, RAP 15.5-ALLOWANCE OF CLAIM FOR PAYMENT OF EXPENSE FOR INDIGENT PARTY, RAP 5.3-CONTENT OF NOTICE-FILING, RAP 15.2-DETERMINATION OF INDIGENCY AND RIGHTS OF INDIGENT PARTY, RAP FORM 12A-FINDINGS OF INDIGENCY, AND RAP FORM 13-MOTION FOR ORDER OF INDIGENCY

) ) ) ) ) ) ) ) ) ) ) ) ))

ORDER NO. 25700-A-936

     The Office of Public Defense having recommended the adoption of the proposed amendments to RAP 6.2-Discretionary Review, RAP 9.2-Verbatim Report of Proceedings, RAP 15.5-Allowance of Claim for Payment of Expense for Indigent Party, RAP 5.3-Content of Notice-Filing, RAP 15.2-Determination of Indigency and Rights of Indigent Party, RAP Form 12A-Findings of Indigency, and RAP Form 13-Motion for Order of Indigency, 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(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2010.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2010. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 3rd day of December, 2010 [2009].

	For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

     An indigent party has a right to counsel for the purpose of seeking discretionary review in certain civil cases. See In re Grove, 127 Wn. 2d 221, 897 P.2d 1252 (1995). In those cases, the court of appeals will appoint counsel upon receiving the notice of discretionary review (and accompanying order of indigency) from the trial court.

     The trial court has 14 days to send the notice to the court of appeals. However, RAP 6.2 requires a party to file a motion for discretionary review within 15 days after the notice of discretionary review has been filed in the trial court. Therefore, by the time the court of appeals receives the notice of discretionary review and appoints appellate counsel the 15 day period is almost over. This rule has caused confusion for trial counsel who believe that they must file the motion for discretionary review in order to meet the 15 day deadline.

     In practice, the court of appeals will reset the 15 day period for filing the motion for discretionary review once it appoints appellate counsel. OPD's proposed change would adopt this practice in the RAP and eliminate the confusion of who is responsible for preparing the motion. The proposed change would only affect those cases in which an indigent party is entitled to counsel for the purpose of seeking discretionary review.

     (b) Time To Make Motion. The party seeking discretionary review must file in the appellate court a motion for discretionary review within 15 days after filing the notice for discretionary review, or, in cases where the appellate court has appointed counsel for a party entitled to seek discretionary review at public expense pursuant to rule 15.2, within 15 days after appointment. If a party files a notice of appeal from a decision which may not be subject to review as a matter of right, the clerk or a party may note for hearing the question whether the decision is reviewable as a matter of right and, if the decision is reviewable by discretion, the question whether review should be accepted.

     (c) Regular Motion Procedure Governs. A motion for discretionary review is governed by the motion procedure established by Title 17.

     (d) Notice of Decision on Motion. The clerk of the appellate court will promptly give written notice to the parties and the trial court of the appellate court's decision on the motion for discretionary review.

     (b) Content. A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review. A verbatim report of proceedings provided at public expense will not include the voir dire examination or opening statement unless so ordered by the trial court. If the party seeking review intends to urge that a verdict or finding of fact is not supported by the evidence, the party should include in the record all evidence relevant to the disputed verdict or finding. If the party seeking review intends to urge that the court erred in giving or failing to give an instruction, the party should include in the record all of the instructions given, the relevant instructions proposed, the party's objections to the instructions given, and the court's ruling on the objections.

     (c) - (d) [No changes]

     (e) Title Page and Table of Contents. The court reporter or other authorized transcriber shall include at the beginning of each volume of the verbatim report of proceedings a title page and a table of contents.

     (1) The title page should include the following:

     (A) Case name,

     (B) Trial court and appellate cause numbers,

     (C) Date(s) of hearings,

     (D) Trial court judge(s),

     (E) Names of attorneys at trial,

     (F) Name, business address and telephone number of each court reporter or other authorized transcriber.

     (2) The table of contents shall follow the title page and shall indicate, under the headings listed below, the pages where the following appear:

     (A) Proceedings. The beginning of each proceeding and the nature of that proceeding;

     (B) Testimony. The testimony of each witness, the page where it begins, and the type of examination, i.e., direct, cross, re-direct, re-cross, and the page where the plaintiff rests and the defendant rests;

     (C) Exhibits. The admission into evidence of exhibits and depositions;

     (D) Argument. The pages where opening statements and closing arguments occur, except as otherwise provided in rule 9.2(b) for verbatim reports of proceedings provided at public expense, and the pages where closing arguments occur;

     (E) Instructions. All instructions proposed and given. Any other events should be listed under a suitable heading which would help the reviewing court locate separate parts of the verbatim report of proceedings.

     (F) Multiple Days. If a volume includes hearings from more than one day, there shall be a separate table of contents for each day.

     In some cases, OPD's 10 day deadline conflicts with other procedural timelines in the RAP. For example, under RAP 9.5(c), the trial court will hold a transcript filed by a court reporter for 10 days before sending it to the court of appeals. Court reporters frequently invoice for the transcription when they file the transcript in the trial court. However, OPD cannot pay for the invoice until the court of appeals receives the transcript from the trial court. Therefore, if OPD receives the invoice before the transcript is sent to the court of appeals, then it often must hold the invoice for 10 days or longer before it can pay.

     (b) Disallowance of Claim. If a brief is unnecessarily long, improper in substance, or not in compliance with these rules, all or a portion of counsel's claim may be disallowed. If the court reporter or counsel has been dilatory, all or a portion of the claim of the court reporter or the claim of counsel may be disallowed.

     1. RAP 5.3 OPD proposes a change to RAP 5.3 in order to assist in the efficient appointment of appellate counsel for indigent parties, pursuant to RAP 15.2(g). The Court of Appeals does not appoint appellate counsel on appeal without an order of indigency entered in the trial court, and therefore indigent appeals cannot proceed before such an order has been entered.

     Presently, orders of indigency often are not included with the notice of appeal as part of the record on review. In fact, the Court of Appeals Division Two Clerk's Office has reported that 30 percent of cases it receives involving an indigent party do not include an order of indigency. Divisions One and Three have indicated deficiencies as well.

     The absence of an order of indigency requires the Court of Appeals to contact trial counsel well after the expiration of trial to request that they go back to court to file a motion for order of indigency. While trial counsel has the duty to file a motion for order of indigency along with a notice of appeal, this duty is not clearly articulated in RAP 5.3. To complicate matters, RAP 5.3(j) states that the trial court clerk will assist criminal defendants in filing a motion for order of indigency.

     OPD's proposed change to RAP 5.3(j) would clarify that trial counsel has the express duty to file a motion for order of indigency in the trial court, and that the trial court clerk need only assist unrepresented parties in filing documents for appeal. OPD intends that this proposal will eliminate unnecessary delay in the appellate process and decrease administrative costs for the Court of Appeals and trial courts in obtaining orders of indigency for appeal. The Division Two clerk's office has expressed support for this amendment and has indicated that the clerks' offices for the other divisions support it as well.

     2. RAP 15.2 and Forms (12A) & 13 OPD proposes a rule change to RAP 15.2 and corresponding forms in order to clarify and simplify the pleading requirements for determining indigency on appeal. RAP 15.2(b) requires the trial court to determine the indigency of a party seeking review at public expense. However, the rule does not specify the information required for appellate level indigency determinations. In fact, at the time of determining indigency for appeal, trial courts frequently already have made a determination of indigency for purposes of funding trial counsel. In its report entitled Update on Criteria and Standards for Determining and Verifying Indigency in October 2007, OPD found that almost all defendants who are indigent at trial are likewise found to be indigent on appeal. Because the court screens parties for indigency before trial, OPD recommends that the determination of indigency for appeal should simply require a reevaluation of the initial determination of indigency.

     OPD's proposed rule change would direct trial courts to determine indigency for appeals based on a review of the previous determination of indigency made for purposes of trial. OPD also proposes a change to RAP Form 13 to allow a party to assert no change in financial status, since in cases where there has been no change the initial determination of indigency operates as a sufficient showing of indigency for appeal.

     Finally, OPD proposes several technical rule changes to RAP 15.2 to clarify the procedure for entering an order of indigency in cases governed under RAP 15.2(c). OPD also proposes to create a new form, RAP Form 12A, for a finding of indigency required in cases in which the Supreme Court must enter an order of indigency.

     OPD proposes the following specific changes:

•	RAP 15.2(a) Move the final sentence to subsection (c). Capitalize Office of Public Defense.
•	RAP 15.2(b) Add language allowing the trial court to determine indigency by reevaluating any previous order of indigency entered at trial. Correct citations to the RCW. Form 13 reflects these changes.
•	RAP 15.2(h) Indicate that a party may seek review of a Finding of Indigency entered by the trial court, pursuant to subsection (c). Proposed Form 12A creates a form to be used by the trial court for Findings of Indigency under subsection (c).

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

     (b) Action by the Trial Court. In written findings and after a hearing, if circumstances warrant, tThe trial court shall determine the indigency, if any, of the party seeking review at public expense and. The determination shall be made in written findings after a hearing, if circumstances warrant, or by reevaluating any order of indigency previously entered by the trial court. The court:

     (1) shall grant the motion for an order of indigency if the party seeking public funds is unable by reason of poverty to pay for all or some of the expenses for appellate review of:

     (a) criminal prosecutions or juvenile offense proceedings meeting the requirements of RCW 10.73.150,

     (b) dependency and termination cases under Ch. 13.34 RCW 13.34,

     (c) commitment proceedings under RCW 71.05 and 71.09,

     (d) civil contempt cases directing incarceration of the contemner,

     (e) orders denying petitions for writ of habeas corpus under RCW 7.36, including attorneys' fees upon a showing of extraordinary circumstances, and

     (f) any other case in which the party has a constitutional or statutory right to counsel at all stages of the proceeding.; or

     (2) shall deny the motion for an order of indigency if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or source of funds available to the party to pay all of the expenses of review.

     (c) Other Cases. In cases not governed by subsection (b) of this rule, the trial court shall determine in written findings the indigency, if any, of the party seeking review. The party must demonstrate in the motion or the supporting affidavit that the issues the party wants reviewed have probable merit and that the party has a constitutional or statutory right to review partially or wholly at public expense.

     (1) Party Not Indigent. The trial court shall deny the motion if a party has adequate means to pay all of the expenses of review. The order denying the motion for an order of indigency shall contain findings designating the funds or sources of funds available to the party to pay all of the expenses of review.

     (2) Party Indigent. If the trial court finds the party seeking review is unable by reason of poverty to pay for all or some of the expenses of appellate review, the trial court shall enter such findings, which shall be forwarded to the Supreme Court for consideration, pursuant to section (d) of this rule. The trial court shall determine in those findings the portion of the record necessary for review and the amount, if any, the party is able to contribute toward the expense of review. The findings shall conclude with an order to the clerk of the trial court to promptly transmit to the Supreme Court, without charge to the moving party, the findings of indigency, the affidavit in support of the motion, and all other papers submitted in support of or in opposition to the motion. The trial court clerk shall promptly transmit to the Supreme Court the papers designated in the findings of indigency.

     (d) - (f) [No changes]

     (g) Appointment and Withdrawal of Counsel in Appellate Court. The appellate court shall determine questions relating to the appointment and withdrawal of counsel for an indigent party on review. The Office of Public Defense shall, in accordance with its indigent appellate representation policies, provide the names of indigent appellate counsel to the appellate courts on a case-by-case bases basis. If trial counsel is not appointed, trial counsel must assist counsel appointed for review in preparing the record.

     (h) Review of Order or Finding of Indigency. Only a A party in a case of a type listed in section (b)(1) of this rule may seek review of an order denying an order of indigency entered by a trial court. A party may also seek review of written findings under section (c)(1) of this rule that the party is not indigent. Review must be sought by a motion for discretionary review.

     (i) [No changes]

(Rule 15.2(c)) SUPERIOR COURT OF WASHINGTON FOR________ COUNTY
[Name of plaintiff]	)
Plaintiff,	)
	)	No. [trial court]
v.	)
	)	FINDINGS OF INDIGENCY AND
	)	ORDER TO TRANSMIT FINDINGS
	)	OF INDIGENCY
	)
[Name of defendant]	)
Defendant.	)

     The court finds that ______________________, the appellant/petitioner in this action is unable by reason of poverty to pay for all or some of the expenses of appellate review. The court finds, however, that the moving party is able to contribute $ _______. The following portions of the record are reasonably necessary for review:

     (1) Those portions of the verbatim report of proceedings as follows: [Designate parts of report.]

     (2) A copy of the clerk's papers as follows: [Designate papers by name and trial court clerk's subnumber.]

     (3) Preparation of original documents to be reproduced by the clerk as provided in rule 14.3(b).

     (4) Reproduction of briefs and other papers on review that are reproduced by the clerk of the appellate court.

     (5) The cost of transmitting cumbersome exhibits: [Designate cumbersome exhibits needed for review. See rule 9.8(b).]

     (6) Other items: [Designate items]

     Now, therefore, it is ORDERED that the clerk of the superior court shall promptly transmit to the Supreme Court the Motion for Order of Indigency, any affidavit or declaration in support of the motion, and the Findings of Indigency.

[Date]

________________________

Signature [Name]

Judge of the Superior Court

Presented by:

[Name of party and attorney

for party presenting order;

Washington State Bar Association

membership number]

(Rule 15.2(c)) SUPERIOR COURT OF WASHINGTON FOR________ COUNTY
(State of Washington)	)
[Name of plaintiff]	)
(Plaintiff,)	)
(Petitioner)	)	No. [trial court]
v.	)	Motion for Order of Indigency -
	)	(Criminal), (Juvenile Offense),
	)	(Dependency), (Termination),
[Name of defendant]	)	(Commitment), (Civil Contempt),
Defendant.	)	Habeas Corpus), (Appeal
	)	involving a Constitutional or
	)	Statutory Right to Counsel)
	)	Case

______________________, (defendant) (respondent) (petitioner), files a notice of appeal in the above-referenced (criminal), (juvenile offense), (dependency), (termination), (commitment), (civil contempt), (habeas corpus), (appeal involving a constitutional or statutory right to counsel) case, and moves the court for an Order of Indigency authorizing the expenditure of public funds to prosecute this appeal (wholly at public expense) (partially at public expense).

     The following declaration is made in support of this motion.

DATED:______	____________________________ (Defendant) (Respondent) (Petitioner)
	____________________________
	- WSBA #
	Attorney for (Defendant) (Respondent) (Petitioner)

CERTIFICATE

I, ____________________________, certify as follows:

     1. I am the (defendant) (respondent) (petitioner) and I wish to appeal the judgment that was entered in the above-entitled cause.

     2. [Check one box]

     [ ] a. I have previously been found to be indigent by order of this court on ______________. There has been no change in my financial status since that time and I continue to lack sufficient funds to seek review in this case;

     or

     [ ] b. I have not previously been found indigent by this court or there has been a change in my financial status since the court found me to be indigent and I am including a certificate providing information as to my current financial situation.

[Attach Appendix A]

     2. That I own:

          ( ) a. No real property

          ( ) b. Real property valued at $______.

     3. That I own:

          ( ) a. No personal property other than my personal effects

          ( ) b. Personal property (automobile, money, inmate account, motors, tools, etc.) valued at $______.

     4. That I have the following income:

          ( ) a. No income from any source.

          ( ) b. Income from employment, disability payments, SSI, insurance, annuities, stocks, bonds, interests, etc., in the amount of $_____ on an average monthly basis. I received $_______ after taxes over the past year.

     5. That I have:

          ( ) a. Undischarged debts in the amount of $______.

          ( ) b. No debts.

     6. That I am without other means to prosecute said appeal and desire that public funds be expended for that purpose.

     7. That I can contribute the following amount toward the expense of review:

     $__________.

     8. The following is a brief statement of the nature of the case and the issues sought to be reviewed:.

     9. 3. I ask the court to provide order the following to be provided the following at public expense, the following: all filing fees, attorney fees, preparation, reproduction, and distribution of briefs, preparation of verbatim report of proceedings, and preparation of necessary clerk's papers.

     10. 4. I authorize the court to obtain verification information regarding my financial status from banks, employers, or other individuals or institutions, if appropriate.

     11. 5. I certify that I will immediately report to the Court any change in my financial status which materially affects the Court's finding of indigency.

     12. 6. I certify that review is being sought seek review in good faith. The following is a brief statement of the nature of the case and the issues sought to be reviewed:________________________________________________________________________________________________________________________________________.

     7. [For cases governed by rule 15.2(c) only] I have a constitutional or statutory right to review at public expense and the issues I want reviewed have probable merit: [Identify statutory or constitutional right and briefly describe the merit of the appeal sought] .

     I, __________________, certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

Date and Place		Signature of (Defendant) (Respondent) (Petitioner)

APPENDIX A [To Form 13]: Initial Declaration of Indigency [To be completed if party has not previously been found indigent or certifies a material change in financial status since original finding of indigency (Box 2(b) in Form 13)]

     I, ______________________________ certify as follows:

     1. I have not previously been found indigent by this court.

     2. That I own:

     ( ) a. No real property

     ( ) b. Real property valued at $_________.

     3. That I own:

     ( ) a. No personal property other than my personal effects

     ( ) b. Personal property (automobile, money, inmate account, motors, tools, etc.) valued at $_________.

     4. That I have the following income:

     ( ) a. No income from any source.

     ( ) b. Income from employment, disability payments, social security, welfare, insurance, annuities, stocks, bonds, interests, etc., in the amount of $________ on an average monthly basis. I received $_______ after taxes over the past year.

     5. That I have:

     ( ) a. Undischarged debts in the amount of $__________.

     ( ) b. No debts.

     6. That I am without other means to prosecute said appeal and desire that public funds be expended for that purpose.

     7. That I can contribute the following amount toward the expense of review:

$__________.

I,_____________, certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

Date and Place		Signature of (Defendant) (Respondent) (Petitioner)

     Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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

     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.

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