CrRLJ 2.1 - Citation and Notice

• Proposed Changes to CrRLJ 2.1 - Citation and Notice (in Word Format)
• Comments Received for CrRLJ 2.1 - Citation and Notice

Purpose: To remove the provisions allowing for citizen complaints.

In 1996, the District Court and Municipal Judges’ Association (DCMJA) proposed deleting the citizen complaint procedure from CrRLJ 2.1 due to the association’s serious concerns that the rule violates the separation of powers doctrine.  4B Wash. Prac., Rules Practice CrRLJ 2.1 (7th ed.).  That proposal was not successful.  In 2012, the DCMJA again expressed its view to the Washington State Supreme Court that CrRLJ 2.1(c) should be repealed in its entirety due to the separation of powers doctrine.

Recently, in State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012), the Washington Supreme Court relied on the principles of the separation of powers doctrine to interpret a state statute as being directory rather than mandatory.  In particular, the court explained that the separation of powers doctrine recognizes that the prosecuting attorney’s core function is the exercise of discretion in making charging decisions.  This discretion may not be usurped, or encroached on, by the other two branches of the government.  The majority opinion explains:

Although the legislature can fashion the duties of prosecuting attorneys, the legislature cannot interfere with the core functions that make them “prosecuting attorneys” in the first place. See State ex rel. Johnston v. Melton, 192 Wash. 379, 388, 73 P.2d 1334 (1937) (“In naming the county officers in § 5, Article 11 of the constitution, the people intended that those officers should exercise the powers and perform the duties then recognized as appertaining to the respective offices which they were to hold.”); State ex rel. Hamilton v. Troy, 190 Wash. 483, 485–87, 68 P.2d 413 (1937) (legislature cannot change official title of prosecuting attorneys); Nelson v. Troy, 11 Wash. 435, 443, 39 P. 974 (1895) (noting that “the duties devolving upon a prosecuting attorney of a county are very dissimilar to those of the county coroner or assessor”). Without broad charging discretion, a prosecuting attorney would cease to be a “prosecuting attorney” as intended by the state constitution. This would be true even if some modicum of charging discretion remained. See Melton, 192 Wash. at 390, 73 P.2d 1334 (“If these constitutional offices can be stripped of a portion of the inherent functions thereof, they can be stripped of all such functions ... and the will of the framers of the constitution thereby thwarted.”). The legislature is free to establish statutory duties that do not interfere with core prosecutorial functions, see, e.g., Callahan v. Jones, 200 Wash. 241, 247, 93 P.2d 326 (1939) (upholding statutory limit on the private practice of law by prosecuting attorneys); Jacoby, supra, at xx (describing various potential duties of prosecuting attorneys beyond engaging in criminal litigation); RCW 36.27.020 (establishing various duties of prosecuting attorneys), but the legislature cannot interfere with the fundamental and inherent charging discretion of prosecuting attorneys, including discretion over the filing of available special allegations.

The inherent charging discretion of prosecuting attorneys is fundamental and cannot be ceded to the legislative branch by consent. Although the Pierce County prosecuting attorney defends the statutes challenged in this case by arguing (in part) that the legislature has the authority to eliminate all meaningful prosecutorial discretion, any attempt by the legislature to do so would violate the separation of powers doctrine and article XI, section 5, notwithstanding the prosecutor's apparent consent. See Troy, 190 Wash. at 487, 68 P.2d 413 (“While we are reluctant to thwart the wishes of the prosecuting attorneys who earnestly desire the proposed change, it is plainly our duty to hold that the legislature ... had no power to make it....”). Although a violation of the separation of powers doctrine “accrues directly to the branch invaded,” Carrick, 125 Wash.2d at 136, 882 P.2d 173 (emphasis added), the underlying purpose of the doctrine is “‘the protection of individuals,’ ” Guillen, 144 Wash.2d at 731, 31 P.3d 628 (emphasis added) (quoting New York, 505 U.S. at 181, 112 S.Ct. 2408). Thus, we have reasoned that the “‘division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment.’ ” Id. (emphasis omitted) (quoting New York, 505 U.S. at 181, 112 S.Ct. 2408). Although “a long history of cooperation between the branches” in any given context might show that no violation has occurred, Carrick, 125 Wash.2d at 136, 882 P.2d 173, one branch cannot simply consent to a separation of powers violation by another branch. This is especially true regarding a fundamental executive power to be exercised by locally elected officials; such officials cannot cede their inherent authority in order to deflect accountability to voters or when otherwise convenient.

In sum, because of the open-ended nature of the challenged statutes, the legislature's broad and underlying acknowledgment of prosecutorial charging discretion, and the unconstitutionality of mandatory charging statutes, we are confident that in enacting RCW 9.94A.835, .836, and .837, the legislature had no intention of imposing enforceable charging requirements on prosecuting attorneys.

State v. Rice, 74 Wn.2d 884, 905-07, 279 P.3d 849, 859-60 (2012).

In light of the decision in Rice, the Court should reconsider the constitutionality of the citizen complaint procedure.  The court rule encroaches upon fundamental executive power to be exercised by the locally-elected prosecutors.  The citizen complaint is a holdover from the past and no longer effectively serves its original purpose.  While territorial statutes allowed virtually anyone to bring a criminal complaint, those statutes have been repealed and replaced with a modern system of public, elected prosecutors.  See, e.g., Laws of 1854, 1st sess. § 1, at 100; Laws of 1854, 1st sess. § 11, at 104.  In 1981, the Legislature enacted RCW 43.10.232, which provides that when a prosecutor declines to file charges for any reason, another executive branch official, the attorney general, can step in and prosecute if appropriate. This statute fills the gap created by the repeal of the private prosecutor statutes, by providing a victim who is dissatisfied with the local elected prosecutor’s handling of a case a path to prosecution.  For example, in State v. Howard, 106 Wn.2d 39, 40-41, 722 P.2d 783 (1985), the murder victim’s family contacted the Governor to request his intervention after the county prosecutor concluded there was insufficient evidence to prosecute the suspected murder.  In contrast, the citizen complaint procedure of CrRLJ 2.1(c) applies only to misdemeanors and gross misdemeanors and provides no mechanism to force an elected prosecutor to proceed with a prosecution.  A district court cannot appoint a special prosecutor if the prosecuting attorney refuses to go forward on the citizen complaint.  See Ladenburg v. Campbell, 56 Wn. App. 701, 784 P.2d 1306 (1990).  RCW 43.10.232 provides a more effective, and constitutional, mechanism for cases where a local elected prosecutor refuses to act.