WSR 17-01-025
[December 7, 2016]
NO. 25700-A-1166
The District and Municipal Court Judges' Association, having recommended the proposed amendments to IRLJ 3.5Decision on Written Statement (Local Option), and the Court having considered the amendments thereto;
Now, therefore, it is hereby
(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment January 2017, in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites.
(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 Email by no later than April 30, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Comments submitted by email message must be limited to 1500 words.
DATED at Olympia, Washington this 7th day of December, 2016.
For the Court
Madsen, C.J.
Suggested Amendment to
Amend IRLJ 3.5: Decision on Written Statement (Local Option)
Submitted by the District & Municipal Courts Judges Association
A. Name of ProponentDistrict & Municipal Courts Judges Association
B. Spokesperson: Judge Scott Marinella
President, DMCJA
C. Purpose: The proposed amendment provides an opportunity for courts to adopt a local rule permitting a telephonic or video conference appearance in lieu of an in-person appearance for a mitigation hearing related to an infraction. The proposed amendment also edits the language regarding hearings on written statements for clarity and readability and removes an exemption from the Rules of Evidence.    
(1) Allowing Video Conference Mitigation Hearings
The DMCJA Board recognizes that the use of technology, including telephone conferencing and video conferencing, is widespread in our communities. The Board believes that the IRLJ 1.1(b) requirement for a "just, speedy, and inexpensive determination of every infraction case" would be enhanced with the addition of an opportunity for citizens to employ telephone and video conference appearances in lieu of a personal appearance for mitigation hearings. Adding the option for a local rule provides an opportunity to utilize technology to make the court more accessible. 
The Board recommends limiting the use of telephone and video conference appearances to mitigation hearings. In a mitigation hearing, the defendant is stipulating that the infraction was committed, and the evidence received by the court is typically testimony from the defendant regarding mitigating circumstances. The challenges surrounding the presentation and admission of evidence in a contested hearing by telephone or video conference are not present in a mitigation hearing.
The amended rule provides three basic parameters for implementation of any local rule option for telephone and video conference appearances on mitigation hearings: (1) the hearings shall be on the record, (2) defendants shall be advised the hearing is being audio recorded, and (3) written notice of the decision and any penalty imposed shall be sent to defendants. However, much of the "how" regarding the implementation of this local rule option should be left to local jurisdictions. In the future, the Rules Committee should examine best practices based upon the experiences of local courts and perhaps suggest further changes to the proposed rule.
(2) Proposed Amendments to Existing Sections
Decisions on written statements are still available as a local rule option as in the current rule. The caption for IRLJ 3.5 is changed to read 'Local Rule Options' and the rule is reformatted with decisions on written statements as section (a) and telephone and video conference hearings as section (b). Reformatting the rule allows for future expansion and addition of local rules.
The section exempting decisions on written statements from the Rules of Evidence is removed. ER 1101 establishes exemptions from the rules of evidence and local rule decisions on written statements are not exempted by ER 1101. Additionally, removing the exemption permits evidentiary objections on written statements. Subjecting in person appearances and decisions on written statements to the same evidentiary standards removes the possibility of inconsistent results.
With the exception of the evidence rules exemption, all of the requirements for decisions on written statements remain within the rule. Some redundant language has been eliminated and the text of the rule has been reformatted for readability.
D. HearingA hearing is not requested.
E. Expedited ConsiderationExpedited consideration is not requested.
Proposed Amendment:
(Local Option)
(a) Decisions on Written Statements.
(1) Contested Hearing Procedures. The court shall examine the citing officer's report and any statement or documents submitted by the defendant. The examination may be held in chambers and shall take place within 120 days after the defendant filed the response to the notice of infraction. The court shall determine whether the plaintiff has proved by a preponderance of the evidence submitted whether the infraction was committed examination may be held in chambers and shall not be governed by the Rules of Evidence.
(1) Factual Determination. The court shall determine whether the plaintiff has proved by a preponderance of all evidence submitted that the defendant has committed the infraction.
(2) Disposition Mitigation Hearing Procedures. A mitigation hearing based upon a written statement may be held in chambers and shall take place within 120 days after the defendant filed the response to the notice of If the court determines that the infraction has been committed, it may assess a penalty in accordance with rule 3.3.
(3) Notice to Parties Defendant. The court shall notify the parties defendant in writing of its decision whether an infraction was found to have been committed and what penalty, if including any penalty, was imposed.
(4) No Appeal Permitted. There shall be no appeal from a decision on written statements.
(b) Telephonic or Video Conference Mitigation Hearings.
(1) Local Rule Permitted. A court may adopt a local rule permitting defendants to appear at a mitigation hearing by telephone or video conference in lieu of an in-person appearance Mitigation hearings based upon written statements may be held in chambers.
(2) Requirements. Such local rule shall comply with the requirements that the hearings shall be conducted on the record, the defendant be advised that the hearing is being audio recorded, and the court shall advise the defendant in writing of its decision and any penalty imposed.