RAP 12.5 - MandateComments for RAP 12.5 must be received no later than April 30, 2010.
GR 9 COVER SHEET
RULES OF APPELLATE PROCEDURE (RAP)
(Clarifies when the Court of Appeals will issue a mandate)
Purpose: Under the current version of RAP 12.5(b), the Court of Appeals will issue its mandate 30 days after a decision is filed unless a timely motion for reconsideration has already been filed. The current version of the rule authorizes issuance of the mandate even though a timely motion to publish has been filed pursuant to RAP 12.3(e). However, under RAP 13.4(a), a party may petition for review by the Supreme Court 30 days from a determination of a timely motion to publish. It is therefore possible that the mandate will issue (because no motion for reconsideration was filed) even though the Court of Appeals is considering a motion to publish, the resolution of which should trigger an opportunity to seek review by the Supreme Court.
The suggested amendment resolves this conflict between RAP 12.5(b) and RAP 13.4(a) essentially by deferring to the time limits in the latter rule. In dealing with motions for reconsideration and to publish, the suggested amendment to RAP 12.5(b)(2) ties issuance of the mandate to the existing deadline for filing a petition for review in RAP 13.4(a). In this way, the mandate will not issue until after the opportunity to petition for review has passed.
This suggested amendment does not add a motion to publish to the list in the first sentence of RAP 12.5(b) of pleadings that the parties can stipulate not to file in order to accelerate issuance of the mandate. If the parties make the stipulation as currently provided in the first sentence, the rest of section (b)—including the suggested provision about a motion to publish—would not apply, so there will be no conflict: the mandate will issue notwithstanding the motion to publish and the parties will have already agreed not to seek review by the Supreme Court. If the parties want to stipulate about a motion for reconsideration and petition for review, they are free to work out between them whether that stipulation is contingent on either of them refraining from filing a motion to publish.
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