IRLJ 3.3 - Procedure at Contested Hearing
Comments for IRLJ 3.3 must be received no later than April 30, 2018.
GR 9 COVER SHEET
Suggested Amendment to
THE INFRACTION RULES FOR COURTS OF LIMITED JURISDICTION (IRLJ)
Rule 3.3 - PROCEDURE AT CONTESTED HEARING
Submitted by the Board of Governors of the Washington State Bar Association
Name of Proponent:
Spokespersons:
Bradford E. Furlong, President, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539
Shannon Kilpatrick, Chair, WSBA Court Rules and Procedures Committee, Washington State Bar Association, 1325 4th Ave., Ste. 600, Seattle, WA 98101-2539 (telephone 425-388-7365)
Kevin Bank, WSBA Assistant General Counsel, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539 (telephone 206-733-5909
Purpose:
The purpose of the suggested amendment to IRLJ 3.3 is to codify in the IRLJ the currently accepted practice that a defendant need not personally appear at a contested infraction hearing when the defendant is represented by an attorney. The current practice is supported by Civil Rule 70.1(a), which permits an attorney “admitted to practice in this state” to “appear for a party by filing a notice of appearance.” The suggested amendment to the IRLJ seeks to clarify that absent special circumstances, when an attorney appears for a defendant, the defendant is not failing to appear.
The language in the suggested amendment is a culmination of a multiyear process that began in 2015. The initial language that was presented to the IRLJ subcommittee and committee for review was sent to stakeholders for input on the proposed change. In light of the feedback that was received, the IRLJ subcommittee redrafted the language to what is included here. The redraft was done with the input of six infraction practitioners. Even though stakeholders had been involved in the redrafting process, the updated language then was recirculated to stakeholders, including the Washington Association of Prosecuting Attorneys, the Washington Defenders' Association, a representative of the District Court Judges Association, and many individual infraction defense attorneys and prosecutors.
The only objections received from stakeholders were concerns that prosecutors would be forced to resort to serving a subpoena on the defendant if the prosecutor wanted to call the defendant as a witness and this could lead to delays. The suggested amendment addresses this concern by requiring a lawyer to expressly include a waiver of defendant's presence in his/her notice of appearance. The prosecutor will then be on notice of the defendant's absence and can opt to subpoena the defendant if the prosecutor needs the defendant's presence.
The suggested amendment also expressly acknowledges that there are some scenarios where the defendant's presence may still be required, notwithstanding the waiver of presence. The last clause of the last sentence in the suggested amendment to IRLJ 3.3(b) provides that the defendant must still personally appear if “the defendant's presence is otherwise required by statute or the court rules.” It was felt that this more general reference to other court rules and statutes was better than attempting to list all of the specific court rules and statutes that could require a defendant's presence. This way, the rule would not need to be amended any time the statutes or court rules were changed, deleted, or renumbered or other court rules and statutes were added that affected this proposed language.
The Board of Governors (BOG) considered the proposed amendment to IRLJ 3.3(b) at its March 9, 2017 meeting and voted not to accept the proposed amendment as submitted, and instead to remand it to the committee to consider making one change. The BOG suggested to substitute “these” with “the” in the last sentence of the proposed amended language.
The committee met on May 15, 2017, and voted unanimously to adopt the BOG's recommended change.
The BOG met on July 28, 2017, and voted to accept the proposed amended language.
Hearing: A hearing is not requested.
Expedited Consideration: Expedited consideration is not requested.
Supporting Material: Suggested rule amendment. |
