GR 38 - New General Rule

• Proposed New Rule GR 38 - New General Rule (in Word Format)
• Comments Received for GR 38 - New General Rule

GR 9 COVER SHEET

Proposed New Washington State Court Rule

(A) Names of Proponents: Northwest Justice Project, Washington Defender Association, American Civil Liberties Union (ACLU) of Washington, Northwest Immigrant Rights Project, Washington Immigrant Solidarity Network, Columbia Legal Services, Central Washington Justice For Our Neighbors, Asian Pacific Islander Institute on Gender-Based Violence, Washington State Coalition Against Domestic Violence, Washington Coalition of Sexual Assault Programs, Colectiva Legal del Pueblo

(B) Spokespersons: Annie Benson, Washington Defender Association

abenson@defensenet.org

Vanessa Hernandez, Northwest Justice Project

Vanessa.Hernandez@nwjustice.org

(C) Purpose:

The proposed court rule is based on the civil arrest privilege. As the supplemental materials outline, the privilege has a long-established tradition in common law and Washington case law.¹ The privilege prohibits civil arrests without a judicial arrest warrant, or other judicial arrest order, from being carried out against a person who is inside a Washington courthouse, or who is traveling to, or returning from, a Washington courthouse to attend hearings or conduct business with the court.

As of the filing of this petition, incidents involving warrantless arrests in connection with federal civil immigration enforcement activities have been documented in courthouses in 18 Washington counties.² Federal immigration enforcement agents of the Department of Homeland Security Divisions of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are arresting people inside, outside, and adjacent to (e.g., on courthouse sidewalks and in courthouse parking lots) Washington district, municipal, and superior courts. Additionally, ICE and CBP agents are following people as they leave the courthouse, pulling them over in their cars, and arresting drivers and passengers.

Targeted people are at courthouses in connection with court business, such as attending a hearing or paying traffic infractions. There are no documented incidents of such individuals causing any disturbance of the peace or posing any danger to others while engaging in court business. Immigration enforcement agents target people of color, predominantly Latinx Spanish speakers. Targeted people are stopped, questioned, and/or simply apprehended, often forcefully.

Immigration enforcement actions at courthouses are now well known throughout Washington’s immigrant communities. As a result, noncitizens and their families and communities are afraid to engage with our state’s justice system. Some of the impacts of these actions are:

● Victims are afraid to report crimes for fear that they or their family members would have to come to a courthouse as a result of their report.

● Victims and other witnesses are afraid to testify in both civil and criminal cases.

● Victims are afraid to seek domestic violence and other forms of protective orders.

● Would-be parties to civil litigation are afraid to commence civil litigation through which they could otherwise obtain orders of dissolution, parenting plans, and orders for support and division of property.

● Respondents in a range of civil litigation are afraid to participate, forcing them to choose between being defaulted or risking arrest.

● People are forgoing payment of traffic fines, seeking marriage licenses, and accessing other administrative court services.

● Defendants fear showing up for court dates to answer and defend against criminal charges. They must choose risking additional charges for failing to appear (an offense with severe immigration consequences) or being arrested, detained, and possibly deported by immigration enforcement officers. These circumstances compromise defense attorney’s capacity and obligations to defend their clients.

● People who would otherwise accompany friends and relatives to court are now afraid to provide that accompaniment or transportation to court.

● Prosecutors are impeded in their duties to pursue justice for alleged criminal violations.

It is a fundamental right of all Washington residents to access our courts. Const. art. I, § 10. The purpose of Washington’s court rules is to “provide necessary governance of court procedure and practice and to promote justice by ensuring a fair and expeditious process.” GR 9. Targeting those who appear at our courthouses and subjecting them to arrest without a judicial warrant for alleged civil immigration violations frustrates justice and compromises our judicial process.

This civil arrest activity denies access to our justice system for large numbers of individuals and their families, the majority of whom are Spanish-speaking people of color. Their legitimate fears of arrest and deportation require justice system stakeholders to engage all possible strategies to ensure Washington courts are open, neutral, and accessible to the public, free of restrictions that would otherwise impede the proper administration of justice.

The proposed rule recognizing the civil arrest privilege is one such strategy. It would prohibit unwarranted immigration enforcement actions and help to restore access to Washington’s courts for all, renew confidence in our judicial system, and provide a basis to pursue legal action against state and federal actors who violate orders invoking the privilege. Accordingly, it is appropriate and necessary that the Court adopt the proposed rule.

This rule does not create or resolve conflicts with statutes, case law, or other court rules.

(D) Hearing:

The proponents do not believe a public hearing is needed.

(E) Expedited Consideration:

The proponents believe exceptional circumstances justify expedited consideration of the suggested rule. The current circumstances have resulted in an access to justice crisis for noncitizens, their families and communities. Much damage has already occurred to families and communities, as well as our courts. And federal immigration enforcement actions continue. Community members report arrests taking place multiple times each week in Grant County alone. Communities and justice system stakeholders cannot wait until September 1^st, 2020. Indeed, even if the petition is processed in an expedited manner there will be significant damage to people and the mission of our courts. As such, proponents respectfully request that the proposed rule be moved through the process as quickly as possible. If the committee votes to permit the petition to proceed, proponents request commencement of a 30-day comment period as soon as possible and an expedited schedule for the remainder of the process.

(F) Supporting Materials:

1. Immigration Enforcement at Washington State Courthouses, Washington Immigrant Solidarity Network, August 29, 2019.

2. Letter From Chief Justice Mary Fairhurst to Commissioner Kevin McAleenan, US Customs and Border Protection, April 15, 2019.

3. Letter from Chief Justice Mary Fairhurst to Secretary John Kelly, US Department of Homeland Security, March 15, 2017.

4. Letter from Robin L. Haynes, Washington State Board of Governors to Secretary John Kelly, US Department of Homeland Security, June 1, 2017.

5. Justice Compromised: Immigration Arrests At Washington State Courthouses, University of Washington Center For Human Rights, October 1, 2019.