PART IV
RULES FOR SUPERIOR COURT
SUPERIOR COURT ADMINISTRATIVE RULES (AR)
TABLE OF RULES
Rule
1 Reporting of Criminal Cases
2 Case Information Cover Sheet
3 One Defendant Per Case
4 Presiding Judge, More Than One Judge in Superior Court District - Repealed
5 Offender Financial Information
6 Elected Judges Pro Tempore
AR RULE 1
REPORTING OF CRIMINAL CASES
(a) Report of Disposition. Within five court days after
disposition by the superior court of a criminal charge,
whether the disposition be a plea of guilty or by
deferral or suspension of imposition of sentence, or a
finding of guilty, or not guilty after trial, or by
dismissal of the charge, the court clerk shall report
such disposition to the Washington State Patrol Section
on Identification on a disposition form approved by the
Administrator for the Courts. When a sentence has been
deferred or suspended, the report to the Section shall
indicate the length of time over which such suspension
or deferral is to be effective. At the conclusion of
the time period for deferral or suspension of sentence,
the court clerk shall forward an amended disposition
form to the Section showing the actual disposition of the case.
(b) Report of Appeal. If an appeal is taken from the
disposition made by the superior court, the court clerk
shall, within five court days of the taking of the
appeal, notify the Section on an amended disposition
form. In the event that the result of any proceeding
changes or otherwise makes inaccurate the information
forwarded on the original disposition report, the court
clerk shall prepare and forward to the Section a
supplemental disposition report on a form approved by
the Administrator for the Courts indicating thereon the
information necessary to correct the current status of
the disposition of charges against the subject
maintained in the records of the Section.
[Adopted effective March 1, 1974.]
RULE 2
CASE INFORMATION COVER SHEET
Each new civil and domestic case filing shall be accompanied by a Case
Information Cover Sheet prepared and submitted by the plaintiff. The
minimum requirements of this Case Information Cover Sheet shall be
established by the Court Management Council in coordination with the Office
of the Administrator for the Courts. Any additional case flow information
deemed necessary for the management of cases by a court must be approved by
the Office of the Administrator for the Courts.
RULE 3
ONE DEFENDANT PER CASE
For criminal cases involving more than one defendant on a single
charging document, a duplicate original of the charging document will be
filed for each defendant. Each defendant will receive a unique cause
number. All subsequent pleadings related to this defendant for this cause
shall be placed in the defendant's case file to assure that the defendant's
file represents a complete legal record.
The assignment of a separate cause number to each defendant of those
named on a single charging document is not considered a severance. Should a
defendant desire that the case be severed, the defendant must move for
severance.
RULE 4
PRESIDING JUDGE, MORE THAN ONE JUDGE
IN SUPERIOR COURT DISTRICT
[REPEALED]
[Adopted effective December 28, 1990;
Repealed effective April 30, 2002.]
RULE 5
OFFENDER FINANCIAL INFORMATION
For purposes of monitoring and billing legal financial obligations,
information contained in the criminal judgment and docket records of the
superior court clerk shall be considered official. The clerk shall provide
such information to the Department of Corrections to promote timely
satisfaction of offender financial obligations.
Superior Court Administrative Rule 6
ELECTED JUDGES PRO TEMPORE
(a) Generally. Wa. const. art. IV, § 7 and RCW 2.08.180
authorize the appointment of judges pro tempore. RCW 2.08.180(2)
provides for the appointment of any elected sitting
judge as an elected judge pro tempore.
(b) Assignment and Qualifications. The presiding judge
of any superior court may, in the interest of justice, assign an
elected sitting judge from the Supreme Court, Court of
Appeals, District or Municipal Court to
serve as an elected judge pro tempore. The presiding
judge will obtain the consent of an elected judge pro
tempore before making the assignment. Consent of the
parties or attorneys is not required. The presiding
judge will make these assignments based on the
experience and demonstrated ability of the elected
judge pro tempore with the subject matter and the
level of complexity of the case.
(c) Number and Publication of Judges Pro Tempore. Each
superior court shall file with the Administrative Office of the
Courts (AOC) by February 1st the list of elected judges pro tempore
to which it shall be assigning cases during the year
commencing on April 1st. Each court may appoint a
minimum of three (3) elected judges pro tempore or one
(1) elected judge pro tempore for every five (5)
sitting judges but in no event may the list contain
more than fifteen (15) elected judges pro tempore.
The list shall identify the court on which the elected
judge pro tempore serves and the number of years of
judicial service. The list shall be disseminated in the same manner
as required for local court rules by GR 7 and also be published on
the AOC website.
(d) Date of Filing of Action Controls Assignment of
Elected Judges Pro Tempore. The list of elected judges pro tempore
which is on file on the date of the filing of an
action is the list from which an elected judge pro
tempore shall be appointed by the presiding judge to
hear matters for the duration of that case.
(e) Substitute Judge Pro Tempore. In the event an
elected judge pro tempore appointed in accordance with
section (c) becomes unable to serve as an elected judge
pro tempore, a new elected judge pro tempore may be
substituted on the list for the elected judge pro tempore
who is unavailable. The appointment of a substitute
elected judge pro tempore is not required to comply with
the time periods set forth in section (c) but shall comply
with identification and dissemination requirements set
forth in that section. The provisions of section (b) and
(d) shall apply to the appointment o a substitute elected
judge pro tempore. For courts having three (3) elected
judges pro tempore, one elected pro tempore judge may be
substituted annually and in all other courts no more than
two (2) elected judges pro tempore may be substituted annually.
(f) Notice of Change of Elected Judge Pro Tempore. In
addition to RCW 4.12.050, any party to or any attorney appearing
in any case which is assigned to an elected judge pro tempore
shall be entitled to one (1) notice of change of judge
when that judge has been assigned a matter over which
to preside. Counsel shall file any "Notice of Change
of Judge" before the noticed judge has made any
discretionary ruling in the case, either on the motion
of the party filing the notice of change of judge or
on the motion of any other party to the action. The
notice of change of judge shall be filed with the
clerk of the court and copies served on all parties,
the presiding judge, the court administrator and the
noticed judge. Upon the filing of a notice of change
of judge, the case shall be transferred to the
presiding judge for reassignment and the noticed judge
shall thereafter be ineligible to preside over any
matters in that case.
[Adopted effective December 26, 2001; amended effective January 3, 2006.]
Comment
For attorney judges pro tempore, see RCW 2.08.180(1).
For visiting judges, see RCW 2.08.140 and 150.
SUPERIOR COURT CIVIL RULES (CR)
TABLE OF RULES
1. INTRODUCTORY
Rule
1 Scope of Rules
2 One Form of Action
2A Stipulations
2. COMMENCEMENT OF ACTION; SERVICE OF PROCESS,
PLEADINGS, MOTIONS, AND ORDERS
3 Commencement of Action
4 Process
4.1 Process--Domestic Relations Actions
4.2 Process--Limited Representation
5 Service and Filing of Pleadings and Other Papers
6 Time
3. PLEADINGS AND MOTIONS
7 Pleadings Allowed; Form of Motions
8 General Rules of Pleading
9 Pleading Special Matters
10 Form of Pleadings and Other Papers
11 Signing and Drafting of Pleadings, Motions, and Legal Memoranda: Sanctions
12 Defenses and Objections
13 Counterclaim and Cross Claim
14 Third Party Practice
15 Amended and Supplemental Pleadings
16 Pretrial Procedure and Formulating Issues
4. PARTIES
17 Parties Plaintiff and Defendant; Capacity
18 Joinder of Claims and Remedies
19 Joinder of Persons Needed for Just Adjudication
20 Permissive Joinder of Parties
21 Misjoinder and Nonjoinder of Parties
22 Interpleader
23 Class Actions
23.1 Derivative Actions by Shareholders
23.2 Actions Relating to Unincorporated Associations
24 Intervention
25 Substitution of Parties
5. DEPOSITIONS AND DISCOVERY
26 General Provisions Governing Discovery
27 Perpetuation of Testimony
28 Persons Before Whom Depositions May Be Taken
29 Stipulations Regarding Discovery Procedure
30 Depositions Upon Oral Examination
31 Depositions Upon Written Questions
32 Use of Depositions in Court Proceedings
33 Interrogatories to Parties
34 Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes
35 Physical and Mental Examination of Persons
36 Requests for Admission
37 Failure To Make Discovery: Sanctions
6. TRIALS
38 Jury Trial of Right
39 Trial by Jury or by the Court
40 Assignment of Cases
41 Dismissal of Actions
42 Consolidation; Separate Trials
43 Taking of Testimony
44 Proof of Official Record
44.1 Determination of Foreign Law
45 Subpoena
46 Exceptions Unnecessary
47 Jurors
48 Juries of Less Than Twelve
49 Verdicts
50 Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
51 Instructions to Jury and Deliberation
52 Decisions, Findings and Conclusions
53 Masters (Reserved)
53.1 Referees
53.2 Court Commissioners
53.3 Appointment Of Masters In Discovery Matters
53.4 Procedures for Mandatory Mediation of Health Care Claims
7. JUDGMENT
54 Judgments and Costs
55 Default and Judgment
56 Summary Judgment
57 Declaratory Judgments
58 Entry of Judgment
59 New Trial, Reconsideration, and Amendment of Judgments
60 Relief From Judgment or Order
61 Harmless Error Reserved
62 Stay of Proceedings To Enforce a Judgment
63 Judges
8. PROVISIONAL AND FINAL REMEDIES
64 Seizure of Person or Property
65 Injunctions
65.1 Security--Proceedings Against Sureties
66 Receivership Proceedings
67 Deposit in Court
68 Offer of Judgment
69 Execution
70 Judgment for Specific Acts; Vesting Title
70.1 Appearance by Attorney
71 Withdrawal by Attorney
9. APPEALS
RESERVED
10. SUPERIOR COURTS AND CLERKS
77 Superior Courts and Judicial Officers
78 Clerks
79 Books and Records Kept by the Clerk
80 Court Reporters
11. GENERAL PROVISIONS
81 Applicability in General
82 Venue
82.5 Tribal Court Jurisdiction
83 Local Rules of Court
84 Forms (Reserved)
85 Title of Rules
86 Effective Dates
RULE CR 1
SCOPE OF RULES
These rules govern the procedure in the superior court in all suits of a
civil nature whether cognizable as cases at law or in equity with the exceptions
stated in rule 81. They shall be construed and administered to secure the just,
speedy, and inexpensive determination of every action.
[Adopted effective July 1, 1967; amended effective September 1, 2005.]
RULE 2
ONE FORM OF ACTION
There shall be one form of action to be known as "civil action."
RULE 2A
STIPULATIONS
No agreement or consent between parties or attorneys in respect to the
proceedings in a cause, the purport of which is disputed, will be regarded
by the court unless the same shall have been made and assented to in open
court on the record, or entered in the minutes, or unless the evidence
thereof shall be in writing and subscribed by the attorneys denying the
same.
RULE 3
COMMENCEMENT OF ACTION
(a) Methods. Except as provided in rule 4.1, a civil action is
commenced by service of a copy of a summons together with a copy of a
complaint, as provided in rule 4 or by filing a complaint. Upon written
demand by any other party, the plaintiff instituting the action shall pay
the filing fee and file the summons and complaint within 14 days after
service of the demand or the service shall be void. An action shall not be
deemed commenced for the purpose of tolling any statute of limitations
except as provided in RCW 4.16.170.
(b) Tolling Statute. (Reserved. See RCW 4.16.170.)
(c) Obtaining Jurisdiction. (Reserved. See RCW 4.28.020.)
(d) Lis Pendens. (Reserved. See RCW 4.28.320 and 4.28.160.)
RULE 4
PROCESS
(a) Summons--Issuance.
(1) The summons must be signed and dated by the plaintiff or his
attorney, and directed to the defendant requiring him to defend the action
and to serve a copy of his appearance or defense on the person whose name
is signed on the summons.
(2) Unless a statute or rule provides for a different time requirement,
the summons shall require the defendant to serve a copy of his defense
within 20 days after the service of summons, exclusive of the day of
service. If a statute or rule other than this rule provides for a different
time to serve a defense, that time shall be stated in the summons.
(3) A notice of appearance, if made, shall be in writing, shall be
signed by the defendant or his attorney, and shall be served upon the
person whose name is signed on the summons. In condemnation cases a notice
of appearance only shall be served on the person whose name is signed on
the petition.
(4) No summons is necessary for a counterclaim or cross claim for any
person who previously has been made a party. Counterclaims and cross claims
against an existing party may be served as provided in rule 5.
(b) Summons.
(1) Contents. The summons for personal service shall contain:
(i) the title of the cause, specifying the name of the court in which
the action is brought, the name of the county designated by the plaintiff
as the place of trial, and the names of the parties to the action,
plaintiff and defendant;
(ii) a direction to the defendant summoning him to serve a copy of his
defense within a time stated in the summons;
(iii) a notice that, in case of failure so to do, judgment will be
rendered against him by default. It shall be signed and dated by the
plaintiff, or his attorney, with the addition of his post office address,
at which the papers in the action may be served on him by mail.
(2) Form. Except in condemnation cases, and except as provided in rule
4.1, the summons for personal service in the state shall be substantially
in the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
_______________, )
Plaintiff, ) No. ______
v. )
_______________, ) SUMMONS (20 days)
Defendant. )
TO THE DEFENDANT: A lawsuit has been started against you in the above
entitled court by _______________, plaintiff. Plaintiff's claim is stated
in the written complaint, a copy of which is served upon you with this
summons.
In order to defend against this lawsuit, you must respond to the
complaint by stating your defense in writing, and by serving a copy upon
the person signing this summons within 20 days after the service of this
summons, excluding the day of service, or a default judgment may be entered
against you without notice. A default judgment is one where plaintiff is
entitled to what he asks for because you have not responded. If you serve a
notice of appearance on the undersigned person, you are entitled to notice
before a default judgment may be entered.
You may demand that the plaintiff file this lawsuit with the court. If
you do so, the demand must be in writing and must be served upon the person
signing this summons. Within 14 days after you serve the demand, the
plaintiff must file this lawsuit with the court, or the service on you of
this summons and complaint will be void.
If you wish to seek the advice of an attorney in this matter, you
should do so promptly so that your written response, if any, may be served
on time.
This summons is issued pursuant to rule 4 of the Superior Court Civil
Rules of the State of Washington.
(signed)______________________________
______________________________________
Print or Type Name
( ) Plaintiff ( ) Plaintiff's Attorney
P. O. Address ________________________
Dated _____________________ Telephone Number _____________________
(c) By Whom Served. Service of summons and process, except when service
is by publication, shall be by the sheriff of the county wherein the
service is made, or by his deputy, or by any person over 18 years of age
who is competent to be a witness in the action, other than a party.
Subpoenas may be served as provided in rule 45.
(d) Service.
(1) Of Summons and Complaint. The summons and complaint shall be served
together.
(2) Personal in State. Personal service of summons and other process
shall be as provided in RCW 4.28.080-.090, 23B.05.040, 23B.15.100,
46.64.040, and 48.05.200 and .210, and other statutes which provide for
personal service.
(3) By Publication. Service of summons and other process by publication
shall be as provided in RCW 4.28.100 and .110, 13.34.080, and 26.33.310,
and other statutes which provide for service by publication.
(4) Alternative to Service by Publication. In circumstances justifying
service by publication, if the serving party files an affidavit stating
facts from which the court determines that service by mail is just as
likely to give actual notice as service by publication, the court may order
that service be made by any person over 18 years of age, who is competent
to be a witness, other than a party, by mailing copies of the summons and
other process to the party to be served at his last known address or any
other address determined by the court to be appropriate. Two copies shall
be mailed, postage prepaid, one by ordinary first class mail and the other
by a form of mail requiring a signed receipt showing when and to whom it
was delivered. The envelopes must bear the return address of the sender.
The summons shall contain the date it was deposited in the mail and shall
require the defendant to appear and answer the complaint within 90 days
from the date of mailing. Service under this subsection has the same
jurisdictional effect as service by publication.
(5) Appearance. A voluntary appearance of a defendant does not preclude
his right to challenge lack of jurisdiction over his person, insufficiency
of process, or insufficiency of service of process pursuant to rule 12(b).
(e) Other Service.
(1) Generally. Whenever a statute or an order of court thereunder
provides for service of a summons, or of a notice, or of an order in lieu
of summons upon a party not an inhabitant of or not found within the state,
service may be made under the circumstances and in the manner prescribed by
the statute or order, or if there is no provision prescribing the manner of
service, in a manner prescribed by this rule.
(2) Personal Service Out of State--Generally. Although rule 4 does not
generally apply to personal service out of state, the prescribed form of
summons may, with the modifications required by statute, be used for that
purpose. See RCW 4.28.180.
(3) Personal Service Out of State--Acts Submitting Person to
Jurisdiction of Courts. (Reserved. See RCW 4.28.185.)
(4) Nonresident Motorists. (Reserved. See RCW 46.64.040.)
(f) Territorial Limits of Effective Service. All process other than a
subpoena may be served anywhere within the territorial limits of the state,
and when a statute or these rules so provide beyond the territorial limits
of the state. A subpoena may be served within the territorial limits as
provided in rule 45 and RCW 5.56.010.
(g) Return of Service. Proof of service shall be as follows:
(1) If served by the sheriff or his deputy, the return of the sheriff
or his deputy endorsed upon or attached to the summons;
(2) If served by any other person, his affidavit of service endorsed
upon or attached to the summons; or
(3) If served by publication, the affidavit of the publisher, foreman,
principal clerk, or business manager of the newspaper showing the same,
together with a printed copy of the summons as published; or
(4) If served as provided in subsection (d)(4), the affidavit of the
serving party stating that copies of the summons and other process were
sent by mail in accordance with the rule and directions by the court, and
stating to whom, and when, the envelopes were mailed.
(5) The written acceptance or admission of the defendant, his agent or
attorney;
(6) In case of personal service out of the state, the affidavit of the
person making the service, sworn to before a notary public, with a seal
attached, or before a clerk of a court of record.
(7) In case of service otherwise than by publication, the return,
acceptance, admission, or affidavit must state the time, place, and manner
of service. Failure to make proof of service does not affect the validity
of the service.
(h) Amendment of Process. At any time in its discretion and upon such
terms as it deems just, the court may allow any process or proof of service
thereof to be amended, unless it clearly appears that material prejudice
would result to the substantial rights of the party against whom the
process issued.
(i) Alternative Provisions for Service in a Foreign Country.
(1) Manner. When a statute or rule authorizes service upon a party not
an inhabitant of or found within the state, and service is to be effected
upon the party in a foreign country, it is also sufficient if service of
the summons and complaint is made: (A) in the manner prescribed by the law
of the foreign country for service in that country in an action in any of
its courts of general jurisdiction; or (B) as directed by the foreign
authority in response to a letter rogatory or a letter of request; or (C)
upon an individual, by delivery to him personally, and upon a corporation
or partnership or association, by delivery to an officer, a managing or
general agent; or (D) by any form of mail, requiring a signed receipt, to
be addressed and mailed to the party to be served; or (E) pursuant to the
means and terms of any applicable treaty or convention; or (F) by
diplomatic or consular officers when authorized by the United States
Department of State; or (G) as directed by order of the court. Service
under (C) or (G) above may be made by any person who is not a party and is
not less than 21 years of age or who is designated by order of the court or
by the foreign court. The method for service of process in a foreign
country must comply with applicable treaties, if any, and must be
reasonably calculated, under all the circumstances, to give actual notice.
(2) Return. Proof of service may be made as prescribed by section (g)
of this rule, or by the law of the foreign country, or by a method provided
in any applicable treaty or convention, or by order of the court. When
service is made pursuant to subsection (1)(D) of this section, proof of
service shall include a receipt signed by the addressee or other evidence
of delivery to the addressee satisfactory to the court.
(j) Other Process. These rules do not exclude the use of other forms of
process authorized by law.
RULE 4.1
PROCESS--DOMESTIC RELATIONS ACTIONS
(a) Summons--General. Actions authorized by RCW 26.09 shall be
commenced by filing a petition or by service of a copy of a summons
together with a copy of the petition on respondent as provided in rule 4.
Upon written demand by the respondent, the petitioner shall pay the filing
fee and file the summons and petition within 14 days after service of the
demand or the service shall be void. No summons is necessary if both
spouses sign a joint petition or if the respondent files a written joinder
in the proceeding.
(b) Summons--Content, Form.
(1) Content. The summons shall contain the title of the action, the
name of the county and the court in which the action is brought, the names
of the parties, as petitioner and respondent, a direction to the respondent
to serve a copy of his or her response on the person who has signed the
summons, the time limit within which the copy of the response must be
served, notice that failure to serve a copy of the response within the
stated time may result in a judgment by default, the signature and address
of the petitioner or petitioner's attorney, and the date.
(2) Form. The summons for personal service in the state in an action
for dissolution of marriage shall be substantially in the form below. The
summons for personal service in the state in any other action authorized by
RCW 26.09 should be adapted from this form. The summons for personal
service out of state should be adapted from this form and must include the
modifications required by statute. See RCW 4.28.180.
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In the Matter of the )
Marriage of ) No. ______
_______________, )
Petitioner, )
and )
_______________, ) SUMMONS FOR
Respondent. ) DISSOLUTION OF MARRIAGE
TO THE RESPONDENT: The petitioner has started an action in the above
court requesting that your marriage be dissolved. Additional requests, if
any, are stated in the petition, a copy of which is attached to this
summons.
You must respond to this summons and petition by serving a copy of your
written response on the person signing this summons. If you do not serve
your written response within 20 days after the date this summons was served
on you, exclusive of the day of service, the court may enter an order of
default against you, and at the end of 90 days after service and filing,
the court may, without further notice to you, enter a decree dissolving
your marriage and approving or providing for other relief requested in the
petition. If you serve a notice of appearance on the undersigned person,
you are entitled to notice before an order of default or a decree may be
entered.
You may demand that the petitioner file this action with the court. If
you do so, the demand must be in writing and must be served upon the person
signing this summons. Within 14 days after you serve the demand, the
petitioner must file this action with the court, or the service on you of
this summons and petition will be void.
If you wish to seek the advice of an attorney in this matter, you
should do so promptly so that your written response, if any, may be served
on time.
One method of serving a copy of your response on the petitioner is to
send it by certified mail with return receipt requested.
This summons is issued pursuant to rule 4.1 of the Superior Court Civil
Rules of the State of Washington.
Dated ________________________ (signed) __________________________
___________________________________
Print or Type Name
SERVE A COPY OF YOUR RESPONSE ON:
( ) Petitioner ( ) Petitioner's Attorney
________________________________________
Address
________________________________________
________________________________________
(city) (zip)
RULE CR 4.2
PROCESS – LIMITED REPRESENTATION
(a) An attorney may undertake to provide limited representation
in accordance with RPC 1.2 to a person involved in a court
proceeding.
(b) Providing limited representation of a person under these
rules shall not constitute an entry of appearance by the attorney
for purposes of CR 5(b) and does not authorize or require the
service or delivery of pleadings, papers or other documents upon
the attorney under CR 5(b). Representation of the person by the
attorney at any proceeding before a judge, magistrate, or other
judicial officer on behalf of the person constitutes an entry of
appearance pursuant to RCW 4.28.210 and CR 4(a)(3), except to the
extent that a limited notice of appearance as provided for under
CR 70.1 is filed and served prior to or simultaneous with the
actual appearance. The attorney’s violation of this Rule may
subject the attorney to the sanctions provided in CR 11(a).
[Effective October 29, 2002]
RULE CR 5
SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service--When Required. Except as otherwise provided in these
rules, every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders
because of numerous defendants, every paper relating to discovery required
to be served upon a party unless the court otherwise orders, every written
motion other than one which may be heard ex parte, and every written
notice, appearance, demand, offer of judgment, designation of record on
appeal, and similar paper shall be served upon each of the parties. No
service need be made on parties in default for failure to appear except
that pleadings asserting new or additional claims for relief against them
shall be served upon them in the manner provided for service of summons in
rule 4.
In an action begun by seizure of property, in which no person need be
or is named as defendant, any service required to be made prior to the
filing of an answer, claim, or appearance shall be made upon the person
having custody or possession of the property at the time of its seizure.
(b) Service--How Made.
(1) On Attorney or Party. Whenever under these rules service is
required or permitted to be made upon a party represented by an attorney
the service shall be made upon the attorney unless service upon the party
himself is ordered by the court. Service upon the attorney or upon a party
shall be made by delivering a copy to him or by mailing it to him at his
last known address or, if no address is known, filing with the clerk of the
court an affidavit of attempt to serve. Delivery of a copy within this rule
means: handing it to the attorney or to the party; or leaving it at his
office with his clerk or other person in charge thereof; or, if there is no
one in charge, leaving it in a conspicuous place therein; or, if the office
is closed or the person to be served has no office, leaving it at his
dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein. Service on an attorney is subject to the
restrictions in subsections (b)(4) and (5) of this rule and in rule 71,
Withdrawal by Attorneys.
(2) Service by Mail.
(A) How made. If service is made by mail, the papers shall be deposited
in the post office addressed to the person on whom they are being served,
with the postage prepaid. The service shall be deemed complete upon the
third day following the day upon which they are placed in the mail, unless
the third day falls on a Saturday, Sunday or legal holiday, in which event
service shall be deemed complete on the first day other than a Saturday,
Sunday or legal holiday, following the third day.
(B) Proof of service by mail. Proof of service of all papers permitted
to be mailed may be by written acknowledgment of service, by affidavit of
the person who mailed the papers, or by certificate of an attorney. The
certificate of an attorney may be in form substantially as follows:
CERTIFICATE
I certify that I mailed a copy of the foregoing _______________ to
(John Smith), (plaintiff's) attorney, at (office address or residence), and
to (Joseph Doe), an additional (defendant's) attorney (or attorneys) at
(office address or residence), postage prepaid, on (date).
___________________________________
(John Brown)
Attorney for (Defendant) William Noe
(3) Service on Nonresidents. Where a plaintiff or defendant who has
appeared resides outside the state and has no attorney in the action, the
service may be made by mail if his residence is known; if not known, on the
clerk of the court for him. Where a party, whether resident or nonresident,
has an attorney in the action, the service of papers shall be upon the
attorney instead of the party. If the attorney does not have an office
within the state or has removed his residence from the state, the service
may be upon him personally either within or without the state, or by mail
to him at either his place of residence or his office, if either is known,
and if not known, then by mail upon the party, if his residence is known,
whether within or without the state. If the residence of neither the party
nor his attorney, nor the office address of the attorney is known, an
affidavit of the attempt to serve shall be filed with the clerk of the
court.
(4) Service on Attorney Restricted After Final Judgment. A party,
rather than the party's attorney, must be served if the final judgment or
decree has been entered and the time for filing an appeal has expired, or
if an appeal has been taken (i) after the final judgment or decree upon
remand has been entered or (ii) after the mandate has been issued affirming
the judgment or decree or disposing of the case in a manner calling for no
further action by the trial court. This rule is subject to the exceptions
defined in subsection (b)(6).
(5) Required Notice to Party. If a party is served under circumstances
described in subsection (b)(4), the paper shall (i) include a notice to the
party of the right to file written opposition or a response, the time
within which such opposition or response must be filed, and the place where
it must be filed; (ii) state that failure to respond may result in the
requested relief being granted; and (iii) state that the paper has not been
served on that party's lawyer.
(6) Exceptions. An attorney may be served notwithstanding subsection
(b)(4) of this rule if (i) fewer than 63 days have elapsed since the filing
of any paper or the issuance of any process in the action or proceeding or
(ii) if the attorney has filed a notice of continuing representation.
(7) Service by Other Means. Service under this rule may be made by
delivering a copy by any other means, including facsimile or electronic
means, consented to in writing by the person served. Service by facsimile
or electronic means is complete on transmission when made prior to 5:00
p.m. on a judicial day. Service made on a Saturday, Sunday, holiday or
after 5:00 p.m. on any other day shall be deemed complete at 9:00 a.m. on
the first judicial day thereafter; Service by other consented means is
complete when the person making service delivers the copy to the agency
designated to make delivery. Service under this subsection is not
effective if the party making service learns that the attempted service did
not reach the person to be served.
(c) Service--Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or of its own
initiative, may order that service of the pleadings of the defendants and
replies thereto need not be made as between the defendants and that any
cross claim, counterclaim, or matter constituting an avoidance or
affirmative defense contained therein shall be deemed to be denied or
avoided by all other parties and that the filing of any such pleading and
service thereof upon the plaintiff constitutes due notice of it to the
parties. A copy of every such order shall be served upon the parties in
such manner and form as the court directs.
(d) Filing.
(1) Time. Complaints shall be filed as provided in rule 3(a). Except as
provided for discovery materials in section (i) of this rule and for
documents accompanying a notice under ER 904(b), all pleadings and other
papers after the complaint required to be served upon a party shall be
filed with the court either before service or promptly thereafter.
(2) Sanctions. The effect of failing to file a complaint is governed by
rule 3. If a party fails to file any other pleading or paper under this
rule, the court upon 5 days' notice of motion for sanctions may dismiss the
action or strike the pleading or other paper and grant judgment against the
defaulting party for costs and terms including a reasonable attorney fee
unless good cause is shown for, or justice requires, the granting of an
extension of time.
(3) Limitation. No sanction shall be imposed if prior to the hearing
the pleading or paper other than the complaint is filed and the moving
attorney is notified of the filing before he leaves his office for the
hearing.
(4) Nonpayment. No further action shall be taken in the pending action
and no subsequent pleading or other paper shall be filed until the judgment
is paid. No subsequent action shall be commenced upon the same subject
matter until the judgment has been paid.
(e) Filing With the Court Defined. The filing of pleadings and other
papers with the court as required by these rules shall be made by filing
them with the clerk of the court, except that the judge may permit the
papers to be filed with him or her, in which event the judge shall note
thereon the filing date and forthwith transmit them to the office of the
clerk. Papers may be filed by facsimile transmission if permitted elsewhere
in these or other rules of court, or if authorized by the clerk of the
receiving court. The clerk may refuse to accept for filing any paper
presented for that purpose because it is not presented in proper form as
required by these rules or any local rules or practices.
(f) Other Methods of Service. Service of all papers other than the
summons and other process may also be made as authorized by statute.
(g) Certified Mail. Whenever the use of "registered" mail is authorized
by statutes relating to judicial proceedings or by rule of court,
"certified" mail, with return receipt requested, may be used.
(h) Service of Papers by Telegraph. [Rescinded.]
(i) Discovery Material Not To Be Filed; Exceptions. Depositions upon
oral examinations, depositions upon written questions, interrogatories and
responses thereto, requests for production or inspection and responses
thereto, requests for admission and responses thereto, and other discovery
requests and responses thereto shall not be filed with the court unless for
use in a proceeding or trial or on order of the court.
(j) Filing by Facsimile. (Reserved. See GR 17--Facsimile Transmission.)
[Amended effective July 1, 1972; September 1, 1978; September 1, 1983;
September 1, 1988; September 1, 1993; September 17, 1993; October 29, 1993;
September 1, 2005.]
RULE 6
TIME
(a) Computation. In computing any period of time prescribed or allowed
by these rules, by the local rules of any superior court, by order of
court, or by any applicable statute, the day of the act, event, or default
from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless
it is a Saturday, a Sunday or a legal holiday, in which event the period
runs until the end of the next day which is neither a Saturday, a Sunday
nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050. When
the period of time prescribed or allowed is less than 7 days, intermediate
Saturdays, Sundays and legal holidays shall be excluded in the computation.
(b) Enlargement. When by these rules or by a notice given thereunder or
by order of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in its
discretion, (1) with or without motion or notice, order the period enlarged
if request therefor is made before the expiration of the period originally
prescribed or as extended by a previous order or, (2) upon motion made
after the expiration of the specified period, permit the act to be done
where the failure to act was the result of excusable neglect; but it may
not extend the time for taking any action under rules 50(b), 52(b), 59(b),
59(d), and 60(b).
(c) Proceeding Not To Fail for Want of Judge or Session of Court. No
proceeding in a court of justice in any action, suit, or proceeding pending
therein, is affected by a vacancy in the office of any or all of the judges
or by the failure of a session of the court.
(d) For Motions--Affidavits. A written motion, other than one which may
be heard ex parte, and notice of the hearing thereof shall be served not
later than 5 days before the time specified for the hearing, unless a
different period is fixed by these rules or by order of the court. Such an
order may for cause shown be made on ex parte application. When a motion is
supported by affidavit, the affidavit shall be served with the motion; and,
except as otherwise provided in rule 59(c), opposing affidavits may be
served not later than 1 day before the hearing, unless the court permits
them to be served at some other time.
(e) Additional Time After Service by Mail. Whenever a party has the
right or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper upon him and
the notice or paper is served upon him by mail, 3 days shall be added to
the prescribed period.
RULE 7
PLEADINGS ALLOWED; FORM OF MOTIONS
(a) Pleadings. There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross claim, if the answer
contains a cross claim; a third party complaint, if a person who was not an
original party is summoned under the provisions of rule 14; and a third
party answer, if a third party complaint is served. No other pleading shall
be allowed, except that the court may order a reply to an answer or a third
party answer.
(b) Motions and Other Papers.
(1) How Made. An application to the court for an order shall be by
motion which, unless made during a hearing or trial, shall be made in
writing, shall state with particularity the grounds therefor, and shall set
forth the relief or order sought. The requirement of writing is fulfilled
if the motion is stated in a written notice of the hearing of the motion.
(2) Form. The rules applicable to captions and other matters of form of
pleadings apply to all motions and other papers provided for by these
rules.
(3) Signing. All motions shall be signed in accordance with rule 11.
(4) Identification of Evidence. When a motion is supported by
affidavits or other papers, it shall specify the papers to be used by the
moving party.
(5) Telephonic Argument. Oral argument on civil motions, including
family law motions, may be heard by conference telephone call in the
discretion of the court. The expense of the call shall be shared equally by
the parties unless the court directs otherwise in the ruling or decision on
the motion.
(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas and exceptions
for insufficiency of a pleading shall not be used.
(d) Security for Costs. (Reserved. See RCW 4.84.210 et seq.)
RULE 8
GENERAL RULES OF PLEADING
(a) Claims for Relief. A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross claim, or third party claim,
shall contain (1) a short and plain statement of the claim showing that the
pleader is entitled to relief and (2) a demand for judgment for the relief
to which he deems himself entitled. Relief in the alternative or of several
different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and plain
terms his defenses to each claim asserted and shall admit or deny the
averments upon which the adverse party relies. If he is without knowledge
or information sufficient to form a belief as to the truth of an averment,
he shall so state and this has the effect of a denial. Denials shall fairly
meet the substance of the averments denied. When a pleader intends in good
faith to deny only a part or a qualification of an averment, he shall
specify so much of it as is true and material and shall deny only the
remainder. Unless the pleader intends in good faith to controvert all the
averments of the preceding pleading, he may make his denials as specific
denials of designated averments or paragraphs, or he may generally deny all
the averments except such designated averments or paragraphs as he
expressly admits; but, when he does so intend to controvert all its
averments, he may do so by general denial subject to the obligations set
forth in rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a party
shall set forth affirmatively accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge in
bankruptcy, duress, estoppel, failure of consideration, fault of a
nonparty, fraud, illegality, injury by fellow servant, laches, license,
payment, release, res judicata, statute of frauds, statute of limitation,
waiver, and any other matter constituting an avoidance or affirmative
defense. When a party has mistakenly designated a defense as a counterclaim
or a counterclaim as a defense, the court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect of Failure To Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount of
damage, are admitted when not denied in the responsive pleading. Averments
in a pleading to which no responsive pleading is required or permitted
shall be taken as denied or avoided.
(e) Pleading To Be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct.
No technical forms of pleadings or motions are required.
(2) A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in
separate counts or defenses. When two or more statements are made in the
alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of
the alternative statements. A party may also state as many separate claims
or defenses as he has regardless of consistency and whether based on legal
or on equitable grounds or on both. All statements shall be made subject to
the obligations set forth in rule 11.
(f) Construction of Pleadings. All pleadings shall be so construed as
to do substantial justice. The adoption of this rule shall not be
considered an adoption or approval of the forms of pleading in the Appendix
of Forms approved in rule 84, Federal Rules of Civil Procedure.
RULE 9
PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association
of persons that is made a party. When a party desires to raise an issue as
to the legal existence of any party or the capacity of any party to sue or
be sued or the authority of a party to sue or be sued in a representative
capacity, he shall do so by specific negative averment which shall include
such supporting particulars as are peculiarly within the pleaders
knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Malice, intent, knowledge, and other condition of mind
of a person may be averred generally.
(c) Condition Precedent. In pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act, it is sufficient to aver that the document was issued or the
act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without setting
forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be considered
like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(h) Pleading Existence of City or Town. In pleading the existence of
any city or town in this state, it shall be sufficient to state in such
pleading that the same is an existing city or town, incorporated or
organized under the laws of Washington.
(i) Pleading Ordinance. In pleading any ordinance of a county, city or
town in this state it shall be sufficient to state the title of such
ordinance and the date of its passage, whereupon the court shall take
judicial notice of the existence of such ordinance and the tenor and effect
thereof.
(j) Pleading Private Statutes. In pleading a private statute, or a
right derived therefrom, it shall be sufficient to refer to such statute by
its title, and the day of its passage, and the court shall thereupon take
judicial notice thereof.
(k) Foreign Law.
(1) United States Jurisdictions. A party who intends to raise an issue
concerning the law of a state, territory, or other jurisdiction of the
United States shall set forth in his pleading facts which show that the law
of another United States jurisdiction may be applicable, or shall state in
his pleading or serve other reasonable written notice that the law of
another United States jurisdiction may be relied upon.
(2) Other Jurisdictions. A party who intends to raise an issue
concerning the law of a jurisdiction other than a state, territory or other
jurisdiction of the United States shall give notice in his pleading of the
foreign jurisdiction whose law he contends may be applicable to the facts
of the case. The following matters need not be pleaded, but may be
discovered pursuant to rule 26:
(i) the party's contentions as to which issues of law are governed by
the foreign law;
(ii) the substance of such foreign law;
(iii) the expected effect of such foreign law on the legal issues and
on the outcome of the case being tried;
(iv) the specific foreign statutes, regulations, judicial and
administrative decisions, documents and other nonprivileged written
materials and translations thereof upon which the party intends to rely.
(3) Application of Foreign Law. Issues of foreign law may be simplified
pursuant to rule 16 and determined in advance of trial pursuant to rule 56.
(4) Failure To Plead Foreign Law. If no party has requested in his
pleadings application of the law of a jurisdiction other than a state,
territory or other jurisdiction of the United States, the court at time of
trial shall apply the law of the State of Washington unless such
application would result in manifest injustice.
(l) Burden of Proof. Nothing in this rule shall be construed to shift
or alter the burden of proof.
RULE CR 10
FORM OF PLEADINGS AND OTHER PAPERS
(a) Caption. Every pleading shall contain a caption setting forth the name
of the court, the title of the action, the file number if known to the
person signing it, and an identification as to the nature of the
pleading or other paper.
(1) Names of Parties. In the complaint the title of the action shall
include the names of all the parties, but in other pleadings it
is sufficient to state the name of the first party on each side
with an appropriate indication of other parties.
(2) Unknown Names. When the plaintiff is ignorant of the name of the
defendant, it shall be so stated in his pleading, and such
defendant may be designated in any pleading or proceeding by any
name, and when his true name shall be discovered, the pleading or
proceeding may be amended accordingly.
(3) Unknown Heirs. When the heirs of any deceased person are proper
parties defendant to any action relating to real property in this
state, and when the names and residences of such heirs are
unknown, such heirs may be proceeded against under the name and
title of the "unknown heirs" of the deceased. In any action
brought to determine any adverse claim, estate, lien, or interest
in real property, or to quiet title to real property, unknown
parties shall be designated as "also all other persons or parties
unknown claiming any right, title, estate, lien, or interest in
the real estate described in the complaint herein."
(b) Paragraphs; Separate Statements. All averments of claim or defense
shall be made in numbered paragraphs, the contents of each of which
shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all
succeeding pleadings. Each claim founded upon a separate transaction
or occurrence, and each defense other than denials, shall be stated in
a separate count or defense whenever a separation facilitates the
clear presentation of the matters set forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading may be
adopted by reference in a different part of the same pleading or in
another pleading or in any motion. A copy of any written instrument
which is an exhibit to a pleading is a part thereof for all purposes.
(d) Format Requirements. [Reserved. See GR 14.]
(e) Format Recommendations. It is recommended that all pleadings and other
papers include or provide for the following:
(1) Service and Filing. Space should be left at the top of the first
page to provide on the right half space for the clerk's filing
stamp, and space at the left half for acknowledging the receipt
of copies.
(2) Title. All pleadings under the space under the docket number
should contain a title indicating their purpose and party
presenting them. For example:
USE DO NOT USE
Petition for Dissolution Petition
Defendant's Motion for Support, etc. Motion
Order for Support Order
Plaintiff's Trial Brief Trial Brief
(3) Bottom Notation. At the left side of the bottom of each page of
all pleadings and other papers an abbreviated name of the
pleading or other paper should be repeated, followed by the page
number. At the right side of the bottom of the first page of each
pleading or other paper the name, mailing address and telephone
number of the attorney or firm preparing the paper should be
printed or typed.
(4) Typed Names. The names of all persons signing a pleading or other
paper should be typed under their signatures.
(5) Headings and Subheadings. Headings and subheadings should be used
for all paragraphs which shall be numbered with roman and/or
arabic numerals.
(6) Numbered Paper. Use numbered paper.
(f) Personal Idenifiers Prohibited. [Reserved. See GR 31(e).]
(g) Unpublished Opinions. [Reserved. See GR 14.1.]
[Amended effective September 1, 1990; September 1, 2007.]
RULE CR 11
SIGNING OF PLEADINGS, MOTIONS, AND LEGAL
MEMORANDA: SANCTIONS
(a) Every pleading, motion, and legal memorandum of a party
represented by an attorney shall be dated and signed by at least
one attorney of record in the attorney's individual name, whose
address and Washington State Bar Association membership number
shall be stated. A party who is not represented by an attorney
shall sign and date the party's pleading, motion, or legal
memorandum and state the party's address. Petitions for
dissolution of marriage, separation, declarations concerning the
validity of a marriage, custody, and modification of decrees
issued as a result of any of the foregoing petitions shall be
verified. Other pleadings need not, but may be, verified or
accompanied by affidavit. The signature of a party or of an
attorney constitutes a certificate by the party or attorney that
the party or attorney has read the pleading, motion, or legal
memorandum, and that to the best of the party's or attorney's
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: (1) it is well grounded in
fact; (2) is warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law or
the establishment of new law; (3) it is not interposed for any
improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation; and (4)
the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on a lack of information or belief. If a pleading, motion, or
legal memorandum is not signed, it shall be stricken unless it
is signed promptly after the omission is called to the attention
of the pleader or movant. If a pleading, motion, or legal
memorandum is signed in violation of this rule, the court, upon
motion or upon its own initiative, may impose upon the person
who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other party
or parties the amount of the reasonable expenses incurred
because of the filing of the pleading, motion, or legal
memorandum, including a reasonable attorney fee.
(b) In helping to draft a pleading, motion or document filed by
the otherwise self-represented person, the attorney certifies
that the attorney has read the pleading, motion, or legal
memorandum, and that to the best of the attorney's knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances: (1) it is well grounded in fact, (2) it
is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law or the
establishment of new law, (3) it is not interposed for any
improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation, and (4)
the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a
lack of information or belief. The attorney in providing such
drafting assistance may rely on the otherwise self-represented
person's representation of facts, unless the attorney has reason
to believe that such representations are false or materially
insufficient, in which instance the attorney shall make an
independent reasonable inquiry into the facts.
[Amended effective January 1, 1974; September 1, 1985; September 1, 1990;
September 17, 1993; October 15, 2002; September 1, 2005.]
RULE 12
DEFENSES AND OBJECTIONS
(a) When Presented. A defendant shall serve his answer within the
following periods:
(1) Within 20 days, exclusive of the day of service, after the service
of the summons and complaint upon him pursuant to rule 4;
(2) Within 60 days from the date of the first publication of the
summons if the summons is served by publication in accordance with rule
4(d)(3);
(3) Within 60 days after the service of the summons upon him if the
summons is served upon him personally out of the state in accordance with
RCW 4.28.180 and 4.28.185 or on the Secretary of State as provided by RCW
46.64.040.
(4) Within the period fixed by any other applicable statutes or rules.
A party served with a pleading stating a cross claim against him shall
serve an answer thereto within 20 days after the service upon him. The
plaintiff shall serve his reply to a counterclaim in the answer within 20
days after service of the answer or, if a reply is ordered by the court,
within 20 days after service of the order, unless the order otherwise
directs. The service of a motion permitted under this rule alters these
periods of time as follows, unless a different time is fixed by order of
the court.
(A) If the court denies the motion or postpones its disposition until
the trial on the merits, the responsive pleading shall be served within 10
days after notice of the courts action.
(B) If the court grants a motion for a more definite statement, the
responsive pleading shall be served within 10 days after the service of the
more definite statement.
(b) How Presented. Every defense, in law or fact, to a claim for relief
in any pleading, whether a claim, counterclaim, cross claim, or third party
claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the
pleader be made by motion: (1) lack of jurisdiction over the subject
matter, (2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process, (6)
failure to state a claim upon which relief can be granted, (7) failure to
join a party under rule 19. A motion making any of these defenses shall be
made before pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses or
objections in a responsive pleading or motion. If a pleading sets forth a
claim for relief to which the adverse party is not required to serve a
responsive pleading, he may assert at the trial any defense in law or fact
to that claim for relief. If, on a motion asserting the defense numbered
(6) to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in rule 56, and all parties shall be
given reasonable opportunity to present all material made pertinent to such
a motion by rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may move
for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded
by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a
motion by rule 56.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-(7)
in section (b) of this rule, whether made in a pleading or by motion, and
the motion for judgment mentioned in section (c) of this rule shall be
heard and determined before trial on application of any party, unless the
court orders that the hearing and determination thereof be deferred until
the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, or if more
particularity in that pleading will further the efficient economical
disposition of the action, he may move for a more definite statement before
interposing his responsive pleading. The motion shall point out the defects
complained of and the details desired. If the motion is granted and the
order of the court is not obeyed within 10 days after the notice of the
order or within such other time as the court may fix, the court may strike
the pleading to which the motion was directed or make such order as it
deems just.
(f) Motion To Strike. Upon motion made by a party before responding to
a pleading or, if no responsive pleading is permitted by these rules, upon
motion made by a party within 20 days after the service of the pleading
upon him or upon the courts own initiative at any time, the court may order
stricken from any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion
under this rule may join with it any other motions herein provided for and
then available to him. If a party makes a motion under this rule but omits
therefrom any defense or objection then available to him which this rule
permits to be raised by motion, he shall not thereafter make a motion based
on the defense or objection so omitted, except a motion as provided in
subsection (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue,
insufficiency of process, or insufficiency of service of process is waived
(A) if omitted from a motion in the circumstances described in section (g),
or (B) if it is neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by rule 15(a) to be
made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under rule 19,
and an objection of failure to state a legal defense to a claim may be made
in any pleading permitted or ordered under rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise that
the court lacks jurisdiction of the subject matter, the court shall dismiss
the action.
(i) Nonparty at Fault. Whenever a defendant or a third party defendant
intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at
fault, such claim is an affirmative defense which shall be affirmatively
pleaded by the party making the claim. The identity of any nonparty claimed
to be at fault, if known to the party making the claim, shall also be
affirmatively pleaded.
RULE 13
COUNTERCLAIM AND CROSS CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim and does not require
for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction. But the pleader need not state the claim if (1) at
the time the action was commenced the claim was the subject of another
pending action, or (2) the opposing party brought suit upon his claim by
attachment or other process by which the court did not acquire jurisdiction
to render a personal judgment on that claim, and the pleader is not stating
any counterclaim under this rule.
(b) Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction or
occurrence that is the subject matter of the opposing party's claim.
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may
not diminish or defeat the recovery sought by the opposing party. It may
claim relief exceeding in amount or different in kind from that sought in
the pleading of the opposing party.
(d) Counterclaim Against the State. These rules shall not be construed
to enlarge beyond the limits now fixed by law the right to assert
counterclaims, or to claim credits against the State or an officer or
agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving his pleading
may, with the permission of the court, be presented as a counterclaim by
supplemental pleading.
(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice
requires, he may by leave of court set up the counterclaim by amendment.
(g) Cross Claim Against Coparty. A pleading may state as a cross claim
any claim by one party against a coparty arising out of the transaction or
occurrence that is the subject matter either of the original action or of a
counterclaim therein or relating to any property that is the subject matter
of the original action. Such cross claim may include a claim that the party
against whom it is asserted is or may be liable to the cross claimant for
all or part of a claim asserted in the action against the cross claimant.
(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a counterclaim or
cross claim in accordance with the provisions of rules 19 and 20.
(i) Separate Trials; Separate Judgment. If the court orders separate
trials as provided in rule 42(b), judgment on a counterclaim or cross claim
may be rendered in accordance with the terms of rule 54(b), even if the
claims of the opposing party have been dismissed or otherwise disposed of.
(j) Setoff Against Assignee. The defendant in a civil action upon a
contract express or implied, other than upon a negotiable promissory note
or bill of exchange, negotiated in good faith and without notice before
due, which has been assigned to the plaintiff, may set off a demand of a
like nature existing against the person to whom he was originally liable,
or any assignee prior to the plaintiff, of such contract, provided such
demand existed at the time of the assignment thereof, and belonging to the
defendant in good faith, before notice of such assignment, and was such a
demand as might have been set off against such person to whom he was
originally liable, or such assignee while the contract belonged to him.
(k) Other Setoff Rules. (Reserved. See RCW 4.32.120 through 4.32.150
and RCW 4.56.050 through 4.56.075.)
RULE 14
THIRD PARTY PRACTICE
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third party plaintiff,
may cause a summons and complaint to be served upon a person not a party to
the action who is or may be liable to him for all or part of the
plaintiff's claim against him. The third party plaintiff need not obtain
leave to make the service if he files the third party complaint not later
than 10 days after he serves his original answer. Otherwise he must obtain
leave on motion upon notice to all parties to the action. The person served
with the summons and third party complaint, hereinafter called the third
party defendant, shall make his defenses to the third party plaintiff's
claim as provided in rule 12 and his counterclaims against the third party
plaintiff and cross claims against other third party defendants as provided
in rule 13. The third party defendant may assert against the plaintiff any
defenses which the third party plaintiff has to the plaintiff's claim. The
third party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject matter of
the plaintiff's claim against the third party plaintiff. The plaintiff may
assert any claim against the third party defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's
claim against the third party plaintiff, and the third party defendant
thereupon shall assert his defenses as provided in rule 12 and his
counterclaims and cross claims as provided in rule 13. Any party may move
to strike the third party claim, or for its severance or separate trial. A
third party defendant may proceed under this rule against any person not a
party to the action who is or may be liable to him for all or part of the
claim made in the action against the third party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is
asserted against a plaintiff, he may cause a third party to be brought in
under circumstances which under this rule would entitle a defendant to do
so.
(c) Tort Cases. This rule shall not be applied in tort cases, to permit
the joinder of a liability or indemnity insurance company, unless such
company is by statute or contract directly liable to the person injured or
damaged.
RULE CR 15
AMENDED AND SUPPLEMENTAL PLEADINGS
(a) Amendments. A party may amend the party's pleading once
as a matter of course at any time before a responsive pleading is
served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within 20 days
after it is served. Otherwise, a party may amend the party's
pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires. If a party moves to amend a pleading, a copy of the
proposed amended pleading, denominated "proposed" and unsigned,
shall be attached to the motion. If a motion to amend is
granted, the moving party shall thereafter file the amended
pleading and, pursuant to rule 5, serve a copy thereof on all
other parties. A party shall plead in response to an amended
pleading within the time remaining for response to the original
pleading or within 10 days after service of the amended pleading,
whichever period may be the longer, unless the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not
raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they
had been raised in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party at any
time, even after judgment; but failure so to amend does not
affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense
upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
(c) Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading, the amendment relates back to
the date of the original pleading. An amendment changing the
party against whom a claim is asserted relates back if the
foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be
brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in
maintaining his defense on the merits, and (2) knew or should
have known that, but for a mistake concerning the identity of the
proper party, the action would have been brought against him.
(d) Supplemental Pleadings. Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since
the date of the pleading sought to be supplemented. Permission
may be granted even though the original pleading is defective in
its statement of a claim for relief or defense. If the court
deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time therefor.
(e) Interlineations. No amendments shall be made to any
pleading by erasing or adding words to the original on file,
without first obtaining leave of court.
[Adopted effective July 1, 1967; Amended effective September 1, 2005.]
RULE 16
PRETRIAL PROCEDURE AND FORMULATING ISSUES
(a) Hearing Matters Considered. By order, or on the motion of any
party, the court may in its discretion direct the attorneys for the parties
to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) Such other matters as may aid in the disposition of the action.
(b) Pretrial Order. The court shall make an order which recites the
action taken at the conference, the amendments allowed to the pleadings,
and the agreements made by the parties as to any of the matters considered,
and which limits the issues for trial to those not disposed of by
admissions or agreements of counsel; and such order when entered controls
the subsequent course of the action, unless modified at the trial to
prevent manifest injustice. The court in its discretion may establish by
rule a pretrial calendar on which actions may be placed for consideration
as above provided and may either confine the calendar to jury actions or to
nonjury actions or extend it to all actions.
RULE 17
PARTIES PLAINTIFF AND DEFENDANT; CAPACITY
(-) Designation of Parties. The party commencing the action shall be
known as the plaintiff, and the opposite party as the defendant.
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator, guardian,
bailee, trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party authorized by
statute may sue in his own name without joining with him the party for
whose benefit the action is brought. No action shall be dismissed on the
ground that it is not prosecuted in the name of the real party in interest
until a reasonable time has been allowed after objection for ratification
of commencement of the action by, or joinder or substitution of, the real
party in interest; and such ratification, joinder, or substitution shall
have the same effect as if the action had been commenced in the name of the
real party in interest.
(b) Capacity To Sue or Be Sued. (Reserved.)
(c) Infants, or Incompetent Persons.
(1) Scope. Generally this rule does not affect statutes and rules
concerning the capacity of infants and incompetents to sue or be sued.
(2) Guardian ad Litem for Infant. (Reserved. See RCW 4.08.050.)
(3) Guardian ad Litem for Incompetents. (Reserved. See RCW 4.08.060.)
(d) Actions on Assigned Choses in Action. (Reserved. See RCW 4.08.080.)
(e) Public Corporations.
(1) Actions by. (Reserved. See RCW 4.08.110.)
(2) Actions Against. (Reserved. See RCW 4.08.120.)
(f) Tort Actions Against State. (Reserved. See RCW 4.92.)
RULE 18
JOINDER OF CLAIMS AND REMEDIES
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross claim, or third party claim, may join,
either as independent or as alternate claims, as many claims, legal,
equitable, or maritime, as he has against an opposing party.
(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is
one heretofore cognizable only after another claim has been prosecuted to a
conclusion, the two claims may be joined in a single action; but the court
shall grant relief in that action only in accordance with the relative
substantive rights of the parties. In particular, a plaintiff may state a
claim for money and a claim to have set aside a conveyance fraudulent as to
him, without first having obtained a judgment establishing the claim for
money.
RULE 19
JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
(a) Persons To Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party in the action if (1) in his absence complete relief cannot be
accorded among those already parties, or (2) he claims an interest relating
to the subject of the action and is so situated that the disposition of the
action in his absence may (A) as a practical matter impair or impede his
ability to protect that interest or (B) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of his claimed interest. If he
has not been so joined, the court shall order that he be made a party. If
he should join as a plaintiff but refuses to do so, he may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the joined
party objects to venue and his joinder would render the venue of the action
improper, he shall be dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a person
joinable under (1) or (2) of section (a) hereof cannot be made a party, the
court shall determine whether in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the
absent person being thus regarded as indispensable. The factors to be
considered by the court include: (1) to what extent a judgment rendered in
the persons absence might be prejudicial to him or those already parties;
(2) the extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided; (3) whether a judgment rendered in the persons absence will be
adequate; (4) whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for
relief shall state the names, if known to the pleader, of any persons
joinable under (1) or (2) of section (a) hereof who are not joined, and the
reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the provisions
of rule 23.
(e) Husband and Wife Must Join--Exceptions. (Reserved. See RCW
4.08.030.)
RULE CR 20
PERMISSIVE JOINDER OF PARTIES
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly,
severally, or in the alternative in respect of or arising
out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or
fact common to all of these persons will arise in the
action. All persons may be joined in one action as
defendants if there is asserted against them jointly,
severally, or in the alternative, any right to relief in
respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if
any question of law or fact common to all defendants will
arise in the action. A plaintiff or defendant need not be
interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the
plaintiffs according to their respective rights to relief,
and against one or more defendants according to their
respective liabilities.
(b) Separate Trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to
expense by the inclusion of a party against whom he asserts
no claim and who asserts no claim against him, and may order
separate trials or make other orders to prevent delay or prejudice.
(c) When Husband and Wife May Join. (Reserved. See RCW 4.08.040.)
(d) Service on Joint Defendants; Procedure After Service. When
the action is against two or more defendants and the summons
is served on one or more but not on all of them, the
plaintiff may proceed as follows:
(1) If the action is against the defendants jointly
indebted upon a contract, he may proceed against the
defendants served unless the court otherwise directs;
and if he recovers judgment it may be entered against
all the defendants thus jointly indebted so far only as
it may be enforced against the joint property of all
and the separate property of the defendants served.
(2) If the action is against defendants severally liable,
he may proceed against the defendants served in the
same manner as if they were the only defendants.
(3) Though all the defendants may have been served with the
summons, judgment may be taken against any of them
severally, when the plaintiff would be entitled to
judgment against such defendants if the action had been
against them alone.
(e) Procedure To Bind Joint Debtor. (Reserved. See RCW 4.68.)
[Amended effective July 1, 1980.]
RULE 21
MISJOINDER AND NONJOINDER OF PARTIES
Misjoinder of parties is not ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or of
its own initiative at any stage of the action and on such terms as are
just. Any claim against a party may be severed and proceeded with
separately.
RULE 22
INTERPLEADER
(a) Rule. Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such that the
plaintiff is or may be exposed to double or multiple liability. It is not
ground for objection to the joinder that the claims of the several
claimants or the titles on which their claims depend do not have a common
origin or are not identical but are adverse to and independent of one
another, or that the plaintiff avers that he is not liable in whole or in
part to any or all of the claimants. A defendant exposed to similar
liability may obtain such interpleader by way of cross claim or
counterclaim. The provisions of this rule supplement and do not in any way
limit the joinder of parties permitted under other rules and statutes.
(b) Statutes. The remedy herein provided is in addition to and in no
way supersedes or limits the remedy provided by RCW 4.08.150 to 4.08.180,
inclusive.
RULE CR 23
CLASS ACTIONS
(a) Prerequisites to a Class Action. One or more members of a class may
sue or be sued as representative parties on behalf of all only if (1) the
class is so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class
action if the prerequisites of section (a) are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual
members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which
would as a practical matter be dispositive of the interests of the other
members not parties to the adjudications or substantially impair or impede
their ability to protect their interest; or
(2) The party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the
class as a whole; or
(3) The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The
matters pertinent to the findings include: (A) the interest of members of
the class in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of the class; (C)
the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.
(c) Determination by Order Whether Class Action To Be Maintained;
Notice; Judgment; Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action brought
as a class action, the court shall determine by order whether it is to be
so maintained. An order under this subsection may be conditional, and may
be altered or amended before the decision on the merits.
(2) In any class action maintained under subsection (b)(3), the court
shall direct to the members of the class the best notice practicable under
the circumstances, including individual notice to all members who can be
identified through reasonable effort. The notice shall advise each member
that (A) the court will exclude him from the class if he so requests by a
specified date; (B) the judgment, whether favorable or not, will include
all members who do not request exclusion; and (C) any member who does not
request exclusion may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under
subsection (b)(1) or (b)(2), whether or not favorable to the class, shall
include and describe those whom the court finds to be members of the class.
The judgment in an action maintained as a class action under subsection
(b)(3), whether or not favorable to the class, shall include and specify or
describe those to whom the notice provided in subsection (c)(2) was
directed, and who have not requested exclusion, and whom the court finds to
be members of the class.
(4) When appropriate, (A) an action may be brought or maintained as a
class action with respect to particular issues, or (B) a class may be
divided into subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which
this rule applies, the court may make appropriate orders: (1) determining
the course of proceedings or prescribing measures to prevent undue
repetition or complication in the presentation of evidence or argument; (2)
requiring, for the protection of the members of the class or otherwise for
the fair conduct of the action, that notice be given in such manner as the
court may direct to some or all of the members of any step in the action,
or of the proposed extent of the judgment, or of the opportunity of members
to signify whether they consider the representation fair and adequate, to
intervene and present claims or defenses, or otherwise to come into the
action; (3) imposing conditions on the representative parties or on
intervenors; (4) requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons, and that the
action proceed accordingly; (5) dealing with similar procedural matters.
The orders may be combined with an order under rule 16, and may be altered
or amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be dismissed or
compromised without the approval of the court, and notice of the proposed
dismissal or compromise shall be given to all members of the class in such
manner as the court directs.
(f) Disposition of Residual Funds.
(1) "Residual Funds" are funds that remain after the payment of all
approved class member claims, expenses, litigation costs, attorneys' fees,
and other court-approved disbursements to implement the relief granted.
Nothing in this rule is intended to limit the parties to a class action
from suggesting, or the trial court from approving, a settlement that does
not create residual funds.
(2) Any order entering a judgment or approving a proposed compromise of
a class action certified under this rule that establishes a process for
identifying and compensating members of the class shall provide for the
disbursement of residual funds. In matters where the claims process has
been exhausted and residual funds remain, not less than twenty-five percent
(25%) of the residual funds shall be disbursed to the Legal Foundation of
Washington to support activities and programs that promote access to the
civil justice system for low income residents of Washington State. The
court may disburse the balance of any residual funds beyond the minimum
percentage to the Legal Foundation of Washington or to any other entity for
purposes that have a direct or indirect relationship to the objectives of
the underlying litigation or otherwise promote the substantive or
procedural interests of members of the certified class.
[Adopted effective July 1, 1967; amended effective January 3, 2006.]
RULE 23.1
DERIVATIVE ACTIONS BY SHAREHOLDERS
In a derivative action brought by one or more shareholders or members
to enforce a right of a corporation or of an unincorporated association,
the corporation or association having failed to enforce a right which may
properly be asserted by it, the complaint shall be verified and shall
allege (a) that the plaintiff was a shareholder or member at the time of
the transaction of which he complains or that his share or membership
thereafter devolved on him by operation of law, and (b) that the action is
not a collusive one to confer jurisdiction on a court of this state which
it would not otherwise have. The complaint shall also allege with
particularity the efforts, if any, made by the plaintiff to obtain the
action he desires from the directors or comparable authority and, if
necessary, from the shareholders or members, and the reasons for his
failure to obtain the action or for not making the effort. The derivative
action may not be maintained if it appears that the plaintiff does not
fairly and adequately represent the interests of the shareholders or
members similarly situated in enforcing the right of the corporation or
association. The action shall not be dismissed or compromised without the
approval of the court, and notice of the proposed dismissal or compromise
shall be given to shareholders or members in such manner as the court
directs.
RULE 23.2
ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative parties
may be maintained only if it appears that the representative parties will
fairly and adequately protect the interests of the association and its
members. In the conduct of the action the court may make appropriate orders
corresponding with those described in rule 23(d), and the procedure for
dismissal or compromise of the action shall correspond with that provided
in rule 23(e).
RULE 24
INTERVENTION
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute confers an
unconditional right to intervene; or (2) when the applicant claims an
interest relating to the property or transaction which is the subject of
the action and he is so situated that the disposition of the action may as
a practical matter impair or impede his ability to protect that interest,
unless the applicants interest is adequately represented by existing
parties.
(b) Permissive Intervention. Upon timely application, anyone may be
permitted to intervene in an action:
(1) When a statute confers a conditional right to intervene; or
(2) When an applicants claim or defense and the main action have a
question of law or fact in common. When a party to an action relies for
ground of claim or defense upon any statute or executive order administered
by a federal or state governmental officer or agency or upon any
regulation, order, requirements, or agreement issued or made pursuant to
the statute or executive order, the officer or agency upon timely
application may be permitted to intervene in the action. In exercising its
discretion the court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to
intervene upon all the parties as provided in rule 5. The motion shall
state the grounds therefor and shall be accompanied by a pleading setting
forth the claim or defense for which intervention is sought.
RULE 25
SUBSTITUTION OF PARTIES
(a) Death.
(1) Procedure. If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper parties. The
motion for substitution may be made by the successors or representatives of
the deceased party or by any party and, together with the notice of
hearing, shall be served on the parties as provided by rule 5 for service
of notices, and upon persons not parties in the manner provided by statute
or by rule for the service of a summons. If substitution is not made within
the time authorized by law, the action may be dismissed as to the deceased
party.
(2) Partial Abatement. In the event of the death of one or more of the
plaintiffs or of one or more of the defendants in an action in which the
right sought to be enforced survives only to the surviving plaintiffs or
only against the surviving defendants, the action does not abate. The death
shall be suggested upon the record and the action shall proceed in favor of
or against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon motion
served as provided in section (a) of this rule may allow the action to be
continued by or against his representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party unless the court
upon motion directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. Service of the
motion shall be made as provided in section (a) of this rule.
(d) Public Offices; Death or Separation From Office. (Reserved.)
RULE CR 26
GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or written questions;
written interrogatories; production of documents or things or permission
to enter upon land or other property, for inspection and other purposes;
physical and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court
in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of
any discoverable matter. It is not ground for objection that the
information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
section (a) shall be limited by the court if it determines that:
(A) the discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient,
less burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(C) the discovery is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy,
limitations on the parties resources, and the importance of the
issues at stake in the litigation. The court may act upon its
own initiative after reasonable notice or pursuant to a motion
under section (c).
(2) Insurance Agreements. A party may obtain discovery and production of:
(i) the existence and contents of any insurance agreement under which
any person carrying on an insurance business may be liable to satisfy
part or all of a judgment which may be entered in the action or to
indemnify or reimburse for payments made to satisfy the judgment; and
(ii) any documents affecting coverage (such as denying coverage,
extending coverage, or reserving rights) from or on behalf of such
person to the covered person or the covered person's representative.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
section, an application for insurance shall not be treated as part of
an insurance agreement.
(3) Structured Settlements and Awards. In a case where a settlement or
final award provides for all or part of the recovery to be paid in
the future, a party entitled to such payments may obtain disclosure
of the actual cost to the defendant of making such payments. This
disclosure may be obtained during settlement negotiations upon
written demand by a party entitled to such payments. If disclosure of
cost is demanded, the defendant may withdraw the offer of a
structured settlement at any time before the offer is accepted.
(4) Trial Preparation: Materials. Subject to the provisions of subsection
(b)(5) of this rule, a party may obtain discovery of documents and
tangible things otherwise discoverable under subsection (b)(1) of
this rule and prepared in anticipation of litigation or for trial by
or for another party or by or for that other party's representative
(including his attorney, consultant, surety, indemnitor, insurer, or
agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of his case and
that he is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of
such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the
person may move for a court order. The provisions of rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.
For purposes of this section, a statement previously made is:
(A) a written statement signed or otherwise adopted or approved by
the person making it; or
(B) a stenographic, mechanical, electrical, or other recording, or
a transcription thereof, which is substantially verbatim recital
of an oral statement by the person making it and
contemporaneously recorded.
(5) Trial Preparation: Experts. Discovery of facts known and opinions
held by experts, otherwise discoverable under the provisions of
subsection (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any other party
to identify each person whom the other party expects to call as
an expert witness at trial, to state the subject matter on which
the expert is expected to testify, to state the substance of the
facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion, and to state such
other information about the expert as may be discoverable under
these rules. (ii) A party may, subject to the provisions of this
rule and of rules 30 and 31, depose each person whom any other
party expects to call as an expert witness at trial.
(B) A party may discover facts known or opinions held by an expert
who is not expected to be called as a witness at trial, only as
provided in rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same
subject by other means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a
reasonable fee for time spent in responding to discovery under
subsections (b)(5)(A)(ii) and (b)(5)(B) of this rule; and (ii)
with respect to discovery obtained under subsection
(b)(5)(A)(ii) of this rule the court may require, and with
respect to discovery obtained under subsection (b)(5)(B) of this
rule the court shall require the party seeking discovery to pay
the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(6) Claims of Privilege or Protection as Trial-Preparation Materials
for Information Produced. If information produced in discovery is
subject to a claim of privilege or of protection as trial-preparation
material, the party making the claim may notify any party that
received the information of the claim and the basis for it. After
being notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must not use or
disclose the information until the claim is resolved; and must take
reasonable steps to retrieve the information if the party disclosed
it before being notified. Either party may promptly present the
information in camera to the court for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
(7) Discovery From Treating Health Care Providers. The party seeking
discovery from a treating health care provider shall pay a reasonable
fee for the reasonable time spent in responding to the discovery. If
no agreement for the amount of the fee is reached in advance, absent
an order to the contrary under section (c), the discovery shall occur
and the health care provider or any party may later seek an order
setting the amount of the fee to be paid by the party who sought the
discovery. This subsection shall not apply to the provision of
records under RCW 70.02 or any similar statute, nor to discovery
authorized under any rules for criminal matters.
(8) Treaties or Conventions. If the methods of discovery provided by
applicable treaty or convention are inadequate or inequitable and
additional discovery is not prohibited by the treaty or convention, a
party may employ the discovery methods described in these rules to
supplement the discovery method provided by such treaty or convention.
(c) Protective Orders. Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court in which the
action is pending or alternatively, on matters relating to a deposition,
the court in the county where the deposition is to be taken may make any
order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons
designated by the court;
(6) that the contents of a deposition not be disclosed or be disclosed
only in a designated way;
(7) that a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way;
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the court.
If the motion for a protective order is denied in whole or in part, the court
may, on such terms and conditions as are just, order that any party or person
provide or permit discovery. The provisions of rule 37(a)(4) apply to the award
of expenses incurred in relation to the motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion, for the
convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence and the
fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of Responses. A party who has responded to a request for
discovery with a response that was complete when made is under no duty to
supplement his response to include information thereafter acquired, except
as follows:
(1) A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to:
(A) the identity and location of persons having knowledge of
discoverable matters; and
(B) the identity of each person expected to be called as an expert
witness at trial, the subject matter on which he is expected to
testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he
obtains information upon the basis of which:
(A) he knows that the response was incorrect when made; or
(B) he knows that the response though correct when made is no longer
true and the circumstances are such that a failure to amend the
response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time prior to trial through new
requests for supplementation of prior responses.
(4) Failure to seasonably supplement in accordance with this rule will
subject the party to such terms and conditions as the trial court may
deem appropriate.
(f) Discovery Conference. At any time after commencement of an action the
court may direct the attorneys for the parties to appear before it for a
conference on the subject of discovery. The court shall do so upon motion
by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made a
reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion.
Each party and his attorney are under a duty to participate in good faith in
the framing of a discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or additions to
matters set forth in the motion shall be served not later than 10 days after
service of the motion.
Following the discovery conference, the court shall enter an order tentatively
identifying the issues for discovery purposes, establishing a plan and schedule
for discovery, setting limitations on discovery, if any, and determining such
other matters, including the allocation of expenses, as are necessary for the
proper management of discovery in the action. An order may be altered or
amended whenever justice so requires.
Subject to the right of a party who properly moves for a discovery conference
to prompt convening of the conference, the court may combine the discovery
conference with a pretrial conference authorized by rule 16.
(g) Signing of Discovery Requests, Responses, and Objections. Every request
for discovery or response or objection thereto made by a party represented
by an attorney shall be signed by at least one attorney of record in his
individual name, whose address shall be stated. A party who is not
represented by an attorney shall sign the request, response, or objection
and state his address. The signature of the attorney or party constitutes
a certification that he has read the request, response, or objection, and
that to the best of his knowledge, information, and belief formed after a
reasonable inquiry it is:
(1) consistent with these rules and warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law;
(2) not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation; and
(3) not unreasonable or unduly burdensome or expensive, given the needs
of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation. If a request, response, or objection is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response, or
objection and a party shall not be obligated to take any action with
respect to it until it is signed.
If a certification is made in violation of the rule, the court, upon motion or
upon its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the request, response, or objection is
made, or both, an appropriate sanction, which may include an order to pay the
amount of the reasonable expenses incurred because of the violation, including
a reasonable attorney fee.
(h) Use of Discovery Materials. A party filing discovery materials on order of
the court or for use in a proceeding or trial shall file only those
portions upon which the party relies and may file a copy in lieu of the original.
(i) Motions; Conference of Counsel Required. The court will not entertain any
motion or objection with respect to rules 26 through 37 unless counsel
have conferred with respect to the motion or objection. Counsel for the
moving or objecting party shall arrange for a mutually convenient
conference in person or by telephone. If the court finds that counsel for
any party, upon whom a motion or objection in respect to matters covered
by such rules has been served, has willfully refused or failed to confer
in good faith, the court may apply the sanctions provided under rule
37(b). Any motion seeking an order to compel discovery or obtain
protection shall include counsels certification that the conference
requirements of this rule have been met.
(j) Access to Discovery Materials Under RCW 4.24.
(1) In General. For purposes of this rule, "discovery materials" means
depositions, answers to interrogatories, documents or electronic data
produced and physically exchanged in response to requests for
production, and admissions pursuant to rules 26-37.
(2) Motion. The motion for access to discovery materials under the
provisions of RCW 4.24 shall be filed in the court that heard the
action in which the discovery took place. The person seeking access
shall serve a copy of the motion on every party to the action, and on
nonparties if ordered by the court.
(3) Decision. The provisions of RCW 4.24 shall determine whether the
motion for access to discovery materials should be granted.
[Amended effective July 1, 1972; September 1, 1985; September 1, 1989; December
28, 1990; September 1, 1992; September 17, 1993; September 1, 1995, January 12, 2010.]
RULE CR 27
PERPETUATION OF TESTIMONY
(a) Perpetuation Before Action.
(1) Petition. A person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be cognizable in any
superior court may file a verified petition in the superior court in the
county of the residence of any expected adverse party. The petition shall
be entitled in the name of the petitioner and shall show:
(A) that the petitioner expects to be a party to an action cognizable
in a superior court but is presently unable to bring it or cause it to be brought;
(B) the subject matter of the expected action and his interest therein;
(C) the facts which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it;
(D) the names or a description of the persons he expects will be
adverse parties and their addresses so far as known; and
(E) the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition, for the purpose of
perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a notice
upon each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the order
described in the petition. At least 20 days before the date of hearing the
notice shall be served in the manner provided by law for service of
summons; but if such service cannot with due diligence be made upon any
expected adverse party named in the petition, the court may make such order
as is just for service by publication or otherwise, and shall appoint, for
persons not served personally in the manner provided by law, an attorney
who shall represent them and, in case they are not otherwise represented,
shall cross-examine the deponent. If any expected adverse party is a minor
or incompetent, the court shall make such order as deemed appropriate for
the protection of the minor or incompetent as provided in RCW 4.08.050 and 4.08.060.
(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice, it
shall make an order designating or describing the persons whose depositions
may be taken and specifying the subject matter of the examination and
whether the depositions shall be taken upon oral examination or written
interrogatories. The depositions may then be taken in accordance with these
rules; and the court may make orders of the character provided for by rules
34 and 35. For the purpose of applying these rules to depositions for
perpetuating testimony, each reference therein to the court in which the
action is pending shall be deemed to refer to the court in which the
petition for such deposition was filed.
(4) Use of Deposition. If a deposition to perpetuate testimony is taken
under these rules or if, although not so taken, it would be admissible in
evidence in the courts of the state in which it is taken, it may be used in
any action involving the same subject matter subsequently brought in a
superior court of this state, in accordance with the provisions of rule 32(a).
(b) Perpetuation Pending Appeal. If an appeal has been taken from a
judgment of a superior court or before the taking of an appeal if the time
therefor has not expired, the superior court in which the judgment was
rendered may allow the taking of the depositions of witnesses to perpetuate
their testimony for use in the event of further proceedings in the superior
court. In such case the party who desires to perpetuate the testimony may
make a motion in the superior court for leave to take the depositions, upon
the same notice and service thereof as if the action was pending in the
superior court. The motion shall show (1) the names and addresses of the
persons to be examined and the substance of the testimony which he expects
to elicit from each; (2) the reasons for perpetuating their testimony. If
the court finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the depositions
to be taken and may make orders of the character provided for by rules 34
and 35, and thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the superior court.
(c) Perpetuation by Action. This rule does not limit the power of a
court to entertain an action to perpetuate testimony.
[Adopted effective July 1, 1967; Amended effective September 1, 2005.]
RULE CR 28
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(-) Within the State. Depositions within the state may be taken before
the following officers:
(1) Court Commissioners. (Reserved. See RCW 2.24.040(9) and (10).)
(2) Superior Courts. (Reserved. See RCW 2.28.010(7).)
(3) Judicial Officers. (Reserved. See RCW 2.28.060.)
(4) Judges of Supreme and Superior Courts. (Reserved. See RCW 2.28.080(3).)
(5) Inferior Judicial Officers. (Reserved. See RCW 2.28.090.)
(6) Notaries Public. (Reserved. See RCW 5.28.010 and 42.44.010.)
(7) Special Commissions. (Reserved. See RCW 11.20.030.)
(a) Within the United States. Within the United States or within a
territory or insular possession subject to the dominion of the United
States, depositions shall be taken before an officer authorized to
administer oaths by the laws of the United States or of the place where the
examination is held, or before a person appointed by the court in which the
action is pending. A person so appointed has power to administer oaths and
take testimony. The term "officer" as used in rules 30, 31, and 32 includes
a person appointed by the court or designated by the parties under rule 29.
(b) In Foreign Countries. In a foreign country, depositions may be
taken (1) on notice before a person authorized to administer oaths in the
place in which the examination is held, either by the law thereof or by the
law of the United States, or (2) before a person commissioned by the court,
and the person so commissioned shall have the power by virtue of his
commission to administer any necessary oath and take testimony, or (3)
pursuant to a letter rogatory or a letter of request, or (4) pursuant to
the means and terms of any applicable treaty or convention. A commission, a
letter rogatory, or a letter of request shall be issued on application and
notice, and on terms that are just and appropriate. It is not requisite to
the issuance of a commission, a letter rogatory, or a letter of request
that the taking of the deposition in any other manner is impracticable or
inconvenient; and a commission, a letter rogatory, and a letter of request
may all be issued in proper cases. A notice or commission may designate the
person before whom the deposition is to be taken either by name or by
descriptive title. A letter rogatory may be addressed "To the Appropriate
Authority in (here name the country)." A letter of request or any other
device permitted by any applicable treaty or convention shall be styled in
the form prescribed by that treaty or convention. Evidence obtained in
response to a letter rogatory or a letter of request need not be excluded
merely for the reason that it is not a verbatim transcript or that the
testimony was not taken under oath or for any similar departure from the
requirements for depositions taken within the United States under these rules.
(c) Disqualification for Interest. No deposition shall be taken before
a person who is a relative or employee or attorney or counsel of any of the
parties, or is a relative or employee of such attorney or counsel, or is
financially interested in the action.
(d) Equal Terms Required. Any arrangement concerning court
reporting services or fees in a case shall be offered to all
parties on equal terms. This rule applies to any arrangement or
agreement between the person before whom a deposition is taken or
a court reporting firm, consortium or other organization
providing a court reporter, and any party or any person arranging
or paying for court reporting services in the case, including any
attorney, law firm, person or entity with a financial interest in
the outcome of the litigation, or person or entity paying for
court reporting services in the case.
[Amended effective July 1, 1972; amended effective September 1, 2001; September 1, 2005.]
RULE 29
STIPULATIONS REGARDING DISCOVERY PROCEDURE
Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any person, at
any time or place, upon any notice and in any manner and when so taken may
be used like other depositions, and (2) modify the procedures provided by
these rules for other methods of discovery.
RULE CR 30
DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken. After the summons and a copy of the
complaint are served, or the complaint is filed, whichever shall first
occur, any party may take the testimony of any person, including a party,
by deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take a
deposition prior to the expiration of 30 days after service of the summons
and complaint upon any defendant or service made under rule 4(e), except
that leave is not required (1) if a defendant has served a notice of taking
deposition or otherwise sought discovery, or (2) if special notice is given
as provided in subsection (b)(2) of this rule. The attendance of witnesses
may be compelled by subpoena as provided in rule 45. The deposition of a
person confined in prison may be taken only by leave of court on such terms
as the court prescribes.
(b) Notice of Examination: General Requirements; Special Notice;
Nonstenographic Recording; Production of Documents and Things; Deposition
of Organization; Video Tape Recording.
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing of not less than 5 days
(exclusive of the day of service, Saturdays, Sundays and court holidays) to
every other party to the action and to the deponent, if not a party or a
managing agent of a party. Notice to a deponent who is not a party or a
managing agent of a party may be given by mail or by any means reasonably
likely to provide actual notice. The notice shall state the time and place
for taking the deposition and the name and address of each person to be
examined, if known, and, if the name is not known, a general description
sufficient to identify him or the particular class or group to which he
belongs. If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set forth in
the subpoena shall be attached to or included in the notice. A party
seeking to compel the attendance of a deponent who is not a party or a
managing agent of a party must serve a subpoena on that deponent in
accordance with rule 45. Failure to give 5 days notice to a deponent who is
not a party or a managing agent of a party may be grounds for the
imposition of sanctions in favor of the deponent, but shall not constitute
grounds for quashing the subpoena.
(2) Leave of court is not required for the taking of a deposition by
plaintiff if the notice (A) states that the person to be examined is about
to go out of the state and will be unavailable for examination unless his
deposition is taken before expiration of the 30-day period, and (B) sets
forth facts to support the statement. The plaintiff's attorney shall sign
the notice, and his signature constitutes a certification by him that to
the best of his knowledge, information, and belief the statement and
supporting facts are true. The sanctions provided by rule 11 are applicable
to the certification.
If a party shows that when he was served with notice under this
subsection (b)(2) he was unable through the exercise of diligence to obtain
counsel to represent him at the taking of the deposition, the deposition
may not be used against him.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) The parties may stipulate in writing or the court may upon motion
order that the testimony at a deposition be recorded by other than
stenographic means. The stipulation or the order shall designate the person
before whom the deposition shall be taken, the manner of recording,
preserving, and filing the deposition, and may include other provisions to
assure that the recorded testimony will be accurate and trustworthy. A
party may arrange to have a stenographic transcription made at his own
expense. Any objections under section (c), any changes made by the witness,
his signature identifying the deposition as his own or the statement of the
officer that is required if the witness does not sign, as provided in
section (e), and the certification of the officer required by section
(f)shall be set forth in a writing to accompany a deposition recorded by
nonstenographic means.
(5) The notice to a party deponent may be accompanied by a request made
in compliance with rule 34 for the production of documents and tangible
things at the taking of the deposition. The procedure of rule 34 shall
apply to the request, including the time established by rule 34(b) for the
party to respond to the request.
(6) A party may in his notice and in a subpoena name as the deponent a
public or private corporation or a partnership or association or
governmental agency and designate with reasonable particularity the matters
on which examination is requested. In that event the organization so named
shall designate one or more officers, directors, or managing agents, or
other persons who consent to testify on its behalf, and may set forth, for
each person designated, the matters known on which he will testify. A
subpoena shall advise a nonparty organization of its duty to make such a
designation. The persons so designated shall testify as to the matters
known or reasonably available to the organization. This subsection (b)(6)
does not preclude taking a deposition by any other procedure authorized in
these rules.
(7) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone or by other electronic means.
For the purposes of this rule and rules 28(a), 37(a)(1), 37(b)(1), and
45(d), a deposition taken by telephone or by other electronic means is
taken at the place where the deponent is to answer questions propounded to him.
(8) Videotaping of depositions.
(A) Any party may videotape the deposition of any party or witness
without leave of court provided that written notice is served on all
parties not less than 20 days before the deposition date, and specifically
states that the deposition will be recorded on videotape. Failure to so
state shall preclude the use of videotape equipment at the deposition,
absent agreement of the parties or court order.
(B) No party may videotape a deposition within 120 days of the later of
the date of filing or service of the lawsuit, absent agreement of the
parties or court order.
(C) On motion of a party made prior to the deposition, the court shall
order that a videotape deposition be postponed or begun subject to being
continued, on such terms as are just, if the court finds that the
deposition is to be taken before the moving party has had an adequate
opportunity to prepare, by discovery deposition of the deponent or other
means, for cross examination of the deponent.
(D) Unless otherwise stipulated to by the parties, the expense of
videotaping shall be borne by the noting party and shall not be taxed as
costs. Any party, at that party's expense, may obtain a copy of the videotape.
(E) A stenographic record of the deposition shall be made
simultaneously with the videotape at the expense of the noting party.
(F) The area to be used for videotaping testimony shall be suitable in
size, have adequate lighting and be reasonably quiet. The physical
arrangements shall be fair to all parties. The deposition shall begin by a
statement on the record of: (a) the operators name, address and telephone
number, (b) the name and address of the operators employer, (c) the date,
time and place of the deposition, (d) the caption of the case, (e) the name
of the deponent, and (f) the name of the party giving notice of the
deposition. The officer before whom the deposition is taken shall be
identified and swear the deponent on camera. At the conclusion of the
deposition, it shall be stated on the record that the deposition is
concluded. When more than one tape is used, the operator shall announce on
camera the end of each tape and the beginning of the next tape.
(G) Absent agreement of the parties or court order, if all or any part
of the videotape will be offered at trial, the party offering it must order
the stenographic record to be fully transcribed at that party's expense. A
party intending to offer a videotaped recording of a deposition in evidence
shall notify all parties in writing of that intent and the parts of the
deposition to be offered within sufficient time for a stenographic
transcript to be prepared, and for objections to be made and ruled on
before the trial or hearing. Objections to all or part of the deposition
shall be made in writing within sufficient time to allow for rulings on
them and for editing of the tape. The court shall permit further
designations of testimony and objections as fairness may require. In
excluding objectionable testimony or comments or objections of counsel, the
court may order that an edited copy of the videotape be made, or that the
person playing the tape at trial suppress the objectionable portions of the
tape. In no event, however, shall the original videotape be affected by any
editing process.
(H) After the deposition has been taken, the operator of the videotape
equipment shall attach to the videotape a certificate that the recording is
a correct and complete record of the testimony by the deponent. Unless
otherwise agreed by the parties on the record, the operator shall retain
custody of the original videotape. The custodian shall store it under
conditions that will protect it against loss or destruction or tampering,
and shall preserve as far as practicable the quality of the tape and the
technical integrity of the testimony and images it contains. The custodian
of the original videotape shall retain custody of it until 6 months after
final disposition of the action, unless the court, on motion of any party
and for good cause shown, orders that the tape be preserved for a longer period.
(I) The use of videotaped depositions shall be subject to rule 32.
(c) Examination and Cross Examination; Record of Examination; Oath;
Objections. Examination and cross examination of witnesses may proceed as
permitted at the trial under the provisions of the Washington Rules of
Evidence (ER). The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under
the officer's direction and in the officer's presence, record the testimony
of the witness. The testimony shall be taken stenographically or recorded
by any other means ordered in accordance with subsection (b)(4) of this
rule. If requested by one of the parties, the testimony shall be transcribed.
All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted by the officer
upon the deposition. Evidence objected to shall be taken subject to the
objections. A judge of the superior court, or a special master if one is
appointed pursuant to rule 53.3, may make telephone rulings on objections
made during depositions. In lieu of participating in the oral examination,
parties may serve written questions in a sealed envelope on the party
taking the deposition and he shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.
(d) Motion To Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and upon
a showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the court in the county
where the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition as provided in rule 26(c).
If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is pending.
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion for
an order. The provisions of rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion.
(e) Submission to Witness; Changes; Signing. When the testimony is
fully transcribed the deposition shall be submitted to the witness for
examination and shall be read to or by the witness, unless such examination
and reading are waived by the witness and by the parties. Any changes in
form or substance which the witness desires to make shall be entered upon
the deposition by the officer with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is not
signed by the witness within 30 days of its submission to the witness, the
officer shall sign it and state on the record the fact of the waiver or of
the illness or absence of the witness or the fact of the refusal to sign
together with the reason, if any, given therefor; and the deposition may
then be used as fully as though signed unless on a motion to suppress under
rule 32(d)(4) the court holds that the reasons given for the refusal to
sign require rejection of the deposition in whole or in part.
(f) Certification and Service by Officer; Exhibits; Copies; Notice.
(1) The officer shall certify on the deposition transcript that the
witness was duly sworn and that the transcript is a true record of the
testimony given by the witness. The officer shall then secure the
transcript in an envelope endorsed with the title of the action and marked
"Deposition of (here insert name of witness)" and shall promptly serve it
on the person who ordered the transcript, unless the court orders
otherwise. Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a party, be marked
for identification and annexed to and returned with the deposition, and may
be inspected and copied by any party, except that (A) the person producing
the materials may substitute copies to be marked for identification, if the
person affords to all parties fair opportunity to verify the copies by
comparison with the originals, and (B) if the person producing the
materials requests their return, the officer shall mark them, give each
party an opportunity to inspect and copy them, and return them to the
person producing them, and the materials may then be used in the same
manner as if annexed to and returned with the deposition. Any party may
move for an order that the original be annexed to the deposition transcript
and filed with the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition transcript to any party or the deponent.
(3) The officer serving or filing the deposition transcript shall give
prompt notice of such action to all parties and file such notice with the
clerk of the court.
(g) Failure To Attend or To Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another party attends in person or by
attorney pursuant to the notice, the court may order the party giving the
notice to pay to such other party the reasonable expenses incurred by him
and his attorney in attending, including reasonable attorney fees.
(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him and the witness because of such
failure does not attend, and if another party attends in person or by
attorney because he expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such other party the
reasonable expenses incurred by him and his attorney in attending,
including reasonable attorney fees.
(h) Conduct of Depositions. The following shall govern deposition practice:
(1) Conduct of Examining Counsel. Examining counsel will refrain from
asking questions he or she knows to be beyond the legitimate scope of
discovery, and from undue repetition.
(2) Objections. Only objections which are not reserved for time of
trial by these rules or which are based on privileges or raised to
questions seeking information beyond the scope of discovery may be made
during the course of the deposition. All objections shall be concise and
must not suggest or coach answers from the deponent. Argumentative
interruptions by counsel shall not be permitted.
(3) Instructions Not To Answer. Instructions to the deponent not to
answer questions are improper, except when based upon privilege or pursuant
to rule 30(d). When a privilege is claimed the deponent shall nevertheless
answer questions related to the existence, extent, or waiver of the
privilege, such as the date of communication, identity of the declarant,
and in whose presence the statement was made.
(4) Responsiveness. Witnesses shall be instructed to answer all
questions directly and without evasion to the extent of their testimonial
knowledge, unless properly instructed by counsel not to answer.
(5) Private Consultation. Except where agreed to, attorneys shall not
privately confer with deponents during the deposition between a question
and an answer except for the purpose of determining the existence of
privilege. Conferences with attorneys during normal recesses and at
adjournment are permissible unless prohibited by the court.
(6) Courtroom Standard. All counsel and parties shall conduct
themselves in depositions with the same courtesy and respect for the rules
that are required in the courtroom during trial.
[Amended effective July 1, 1972; April 2, 1979; September 1, 1985;
September 1, 1988; September 1, 1989; September 1, 1993; September 1, 2005.]
RULE 31
DEPOSITIONS UPON WRITTEN QUESTIONS
(a) Serving Questions; Notice. After the summons and a copy of the
complaint are served, or the complaint is filed, whichever shall first
occur, any party may take the testimony of any person, including a party,
by deposition upon written questions. The attendance of witnesses may be
compelled by the use of subpoena as provided in rule 45. The deposition of
a person confined in prison may be taken only by leave of court on such
terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them upon every other party with a notice stating (1) the name and
address of the person who is to answer them, if known, and if the name is
not known, a general description sufficient to identify him or the
particular class or group to which he belongs, and (2) the name or
descriptive title and address of the officer before whom the deposition is
to be taken. A deposition upon written questions may be taken of a public
or private corporation or a partnership or association or governmental
agency in accordance with the provisions of rule 30(b)(6).
Within 15 days after the notice and written questions are served, a
party may serve cross questions upon all other parties. Within 10 days
after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served with
redirect questions, a party may serve recross questions upon all other
parties. The court may for cause shown enlarge or shorten the time.
(b) Officer To Take Responses and Prepare Record. A copy of the notice
and copies of all questions served shall be delivered by the party taking
the deposition to the officer designated in the notice, who shall proceed
promptly, in the manner provided by rule 30(c), (e), and (f), to take the
testimony of the witness in response to the questions and to prepare,
certify, and serve the deposition transcript, attaching thereto the copy of
the notice and the questions received by the officer, on the party taking
the deposition, unless the court orders otherwise.
(c) Notice of Service. When the deposition has been served, the officer
shall promptly give notice of its service to all other parties and file
such notice with the clerk of the court.
RULE 32
USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the Rules of Evidence applied as though the witness were
then present and testifying, may be used against any party who was present
or represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness or for
any purpose permitted by the Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated under rule 30(b)(6) or 31(a) to testify on behalf of a public or
private corporation, partnership or association or governmental agency
which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds: (A) that the witness is dead;
or (B) that the witness resides out of the county and more than 20 miles
from the place of trial, unless it appears that the absence of the witness
was procured by the party offering the deposition or unless the witness is
an out-of-state expert subject to subsection (a)(5)(A) of this rule; or (C)
that the witness is unable to attend or testify because of age, illness,
infirmity, or imprisonment; or (D) that the party offering the deposition
has been unable to procure the attendance of the witness by subpoena; or
(E) upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an
adverse party may require him to introduce any other part which ought in
fairness to be considered with the part introduced, and any party may
introduce any other parts.
(5) The deposition of an expert witness may be used as follows:
(A) The discovery deposition of an opposing partys rule 26(b)(5) expert
witness, who resides outside the state of Washington, may be used if
reasonable notice before the trial date is provided to all parties and any
party against whom the deposition is intended to be used is given a
reasonable opportunity to depose the expert again.
(B) The deposition of a health care professional, even though available
to testify at trial, taken with the expressly stated purpose of preserving
the deponents testimony for trial, may be used if, before the taking of the
deposition, there has been compliance with discovery requests made pursuant
to rules 26(b)(5)(A)(i), 33, 34, and 35 (as applicable) and if the opposing
party is afforded an adequate opportunity to prepare, by discovery
deposition of the deponent or other means, for cross examination of the
deponent.
Substitution of parties pursuant to rule 25 does not affect the right
to use depositions previously taken; and, when an action has been brought
in any court of the United States or of any state and another action
involving the same issues and subject matter is afterward brought between
the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be used
in the latter as if originally taken therefor. A deposition previously
taken may also be used as permitted by the Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of rule
28(b) and subsection (d)(3) of this rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a
person his own witness for any purpose by taking his deposition. The
introduction in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the deponent makes
the deponent the witness of the party introducing the deposition, but this
shall not apply to the use by an adverse party of a deposition under
subsection (a)(2) of this rule. At the trial or hearing any party may rebut
any relevant evidence contained in a deposition whether introduced by him
or by any other party.
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken is
waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if presented
at that time.
(B) Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or answers,
in the oath or affirmation, or in the conduct of parties, and errors of any
kind which might be obviated, removed, or cured if promptly presented, are
waived unless seasonable objection thereto is made at the taking of the
deposition.
(C) Objections to the form of written questions submitted under rule 31
are waived unless served in writing upon the party propounding them within
the time allowed for serving the succeeding cross or other questions and
within 5 days after service of the last questions authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, endorsed, transmitted,
filed, or otherwise dealt with by the officer under rules 30 and 31 are
waived unless a motion to suppress the deposition or some part thereof is
made with reasonable promptness after such defect is, or with due diligence
might have been, ascertained.
RULE 33
INTERROGATORIES TO PARTIES
(a) Availability; Procedures for Use. Any party may serve upon any
other party written interrogatories to be answered by the party served or,
if the party served is a public or private corporation or a partnership or
association or governmental agency, by any officer or agent, who shall
furnish such information as is available to the party. Interrogatories may,
without leave of court, be served upon the plaintiff after the summons and
a copy of the complaint are served upon the defendant, or the complaint is
filed, whichever shall first occur, and upon any other party with or after
service of the summons and complaint upon that party.
Interrogatories shall be so arranged that after each separate question
there shall appear a blank space reasonably calculated to enable the
answering party to place the written response. In the event the responding
party either chooses to place the response on a separate page or pages or
must do so in order to complete the response, the responding party shall
clearly denote the number of the question to which the response relates,
including the subpart thereof if applicable. Each interrogatory shall be
answered separately and fully in writing under oath, unless it is objected
to, in which event the reasons for objection shall be stated in lieu of an
answer. The answers are to be signed by the person making them, and the
objections signed by the attorney making them. The party upon whom the
interrogatories have been served shall serve a copy of the answers, and
objections if any, within 30 days after the service of the interrogatories,
except that a defendant may serve answers or objections within 40 days
after service of the summons and complaint upon that defendant. The parties
may stipulate or any party may move for an order under rule 37(a) with
respect to any objection to or other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under rule 26(b), and the answers may be used to
the extent permitted by the Rules of Evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but the
court may order that such an interrogatory need not be answered until after
designated discovery has been completed or until a pretrial conference or
other later time.
An interrogatory otherwise proper is not objectionable merely because
the propounding party may have other access to the requested information or
has the burden of proof on the subject matter of the interrogatory at
trial.
(c) Option To Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, or from a
compilation, abstract or summary based thereon, and the burden of deriving
or ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served, it is sufficient answer to such
interrogatory to specify the records from which the answer may be derived
or ascertained and to afford to the party serving the interrogatory
reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries. A specification shall be
in sufficient detail to permit the interrogating party to locate and to
identify, as readily as can the party served, the records from which the
answer may be ascertained.
SUPERIOR CIVIL RULE 34
PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON
LAND FOR INSPECTION AND OTHER PURPOSES
(a) Scope. Any party may serve on any other party a
request (1) to produce and permit the party making the
request, or someone acting on his behalf, to inspect and
copy, any designated documents (including writings,
drawings, graphs, charts, photographs, phonorecords, and
other data compilations from which information can be
obtained, translated, if necessary, by the respondent
through detection devices into reasonably usable form), or
to inspect and copy, test, or sample any tangible things
which constitute or contain matters within the scope of rule
26(b) and which are in the possession, custody or control of
the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property
or any designated object or operation thereon, within the
scope of rule 26(b).
(b) Procedure. The request may, without leave of court,
be served upon the plaintiff after the summons and a copy of
the complaint are served upon the defendant, or the
complaint is filed, whichever shall first occur, and upon
any other party with or after service of the summons and
complaint upon that party. The request shall set forth the
items to be inspected either by individual item or by
category, and describe each item and category with
reasonable particularity. The request shall specify a
reasonable time, place and manner of making the inspection
and performing the related acts.
The party upon whom the request is served shall serve a
written response within 30 days after the service of the
request, except that a defendant may serve a response within
40 days after service of the summons and complaint upon that
defendant. The parties may stipulate or the court may allow
a shorter or longer time. The response shall state, with
respect to each item or category, that inspection and
related activities will be permitted as requested, unless
the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of
an item or category, the part shall be specified and
inspection permitted of the remaining parts. The party
submitting the request may move for an order under rule
37(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure
to permit inspection as requested.
A party who produces documents for inspection shall
produce them as they are kept in the usual course of
business or shall organize and label them to correspond with
the categories in the request.
(c) Persons Not Parties. This rule does not preclude an
independent action against a person not a party for
production of documents and things and permission to enter
upon land.
RULE 35
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(a) Examination.
(1) Order for Examination. When the mental or physical
condition (including the blood group) of a party, or of a
person in the custody or under the legal control of a party,
is in controversy, the court in which the action is pending
may order the party to submit to a physical examination by a
physician, or mental examination by a physician or
psychologist or to produce for examination the person in the
party's custody or legal control. The order may be made only
on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the
time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be
made.
(2) Representative at Examination. The party being
examined may have a representative present at the
examination, who may observe but not interfere with or
obstruct the examination.
(3) Recording of Examination. Unless otherwise ordered
by the court, the party being examined or that party's
representative may make an audiotape recording of the
examination which shall be made in an unobtrusive manner. A
videotape recording of the examination may be made on
agreement of the parties or by order of the court.
(b) Report of Examining Physician or Psychologist. The
party causing the examination to be made shall deliver to
the party or person examined a copy of a detailed written
report of the examining physician or psychologist setting
out the examiner's findings, including results of all tests
made, diagnosis and conclusions, together with like reports
of all earlier examinations of the same condition,
regardless of whether the examining physician or
psychologist will be called to testify at trial. The report
shall be delivered within 45 days of the examination and in
no event less than 30 days prior to trial. These deadlines
may be altered by agreement of the parties or by order of
the court. If a physician or psychologist fails or refuses
to make a report in compliance herewith the court shall
exclude the examiner's testimony if offered at the trial,
unless good cause for noncompliance is shown.
(c) Examination by Agreement. Subsections (a) (2) and
(3) and (b) apply to examinations made by agreement of the
parties, unless the agreement expressly provides otherwise.
RULE 36
REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action only,
of the truth of any matters within the scope of rule 26(b) set forth in the
request that relate to statements or opinions of fact or of the application
of law to fact, including the genuineness of any documents described in the
request. Copies of documents shall be served with the request unless they
have been or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon the
plaintiff after the summons and a copy of the complaint are served upon the
defendant, or the complaint is filed, whichever shall first occur, and upon
any other party with or after service of the summons and complaint upon
that party. Requests for admission shall not be combined in the same
document with any other form of discovery.
Each matter of which an admission is requested shall be separately set
forth. The matter is admitted unless, within 30 days after service of the
request, or within such shorter or longer time as the court may allow, the
party to whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter, signed by
the party or by his attorney, but, unless the court shortens the time, a
defendant shall not be required to serve answers or objections before the
expiration of 40 days after service of the summons and complaint upon him.
If objection is made, the reasons therefor shall be stated. The answer
shall specifically deny the matter or set forth in detail the reasons why
the answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission, and when good
faith requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of it
as is true and qualify or deny the remainder. An answering party may not
give lack of information or knowledge as a reason for failure to admit or
deny unless he states that he has made reasonable inquiry and that the
information known or readily obtainable by him is insufficient to enable
him to admit or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial or a
central fact in dispute may not, on that ground alone, object to the
request; he may, subject to the provisions of rule 37(c), deny the matter
or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines that
an objection is justified, it shall order that an answer be served. If the
court determines that an answer does not comply with the requirements of
this rule, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders, determine
that final disposition of the request be made at a pretrial conference or
at a designated time prior to trial. The provisions of rule 37(a)(4) apply
to the award of expenses incurred in relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission. Subject to the provisions of rule 16 governing
amendment of a pretrial order, the court may permit withdrawal or amendment
when the presentation of the merits of the action will be subserved thereby
and the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice him in maintaining his action or
defense on the merits. Any admission made by a party under this rule is for
the purpose of the pending action only and is not an admission by him for
any other purpose nor may it be used against him in any other proceeding.
RULE CR 37
FAILURE TO MAKE DISCOVERY: SANCTIONS
(a) Motion for Order Compelling Discovery. A party, upon
reasonable notice to other parties and all persons affected
thereby, and upon a showing of compliance with rule 26(i),
may apply to the court in the county where the deposition
was taken, or in the county where the action is pending, for
an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a
party may be made to the court in which the action is
pending, or on matters relating to a deposition, to the
court in the county where the deposition is being
taken. An application for an order to a deponent who is
not a party shall be made to the court in the county
where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under rules 30 or 31, or a
corporation or other entity fails to make a designation
under rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under rule 33, or if
a party, in response to a request for inspection
submitted under rule 34, fails to respond that
inspection will be permitted as requested or fails to
permit inspection as requested, any party may move for
an order compelling an answer or a designation, or an
order compelling inspection in accordance with the
request. When taking a deposition on oral examination,
the proponent of the question may complete or adjourn
the examination before he applies for an order.
If the court denies the motion in whole or in part, it may
make such protective order as it would have been empowered
to make on a motion made pursuant to rule 26(c).
(3) Evasive or Incomplete Answer. For purposes of this
section an evasive or incomplete answer is to be
treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted,
the court shall, after opportunity for hearing, require
the party or deponent whose conduct necessitated the
motion or the party or attorney advising such conduct
or both of them to pay to the moving party the
reasonable expenses incurred in obtaining the order,
including attorney fees, unless the court finds that
the opposition to the motion was substantially
justified or that other circumstances make an award of
expenses unjust.
If the motion is denied, the court shall, after opportunity
for hearing, require the moving party or the attorney
advising the motion or both of them to pay to the party or
deponent who opposed the motion the reasonable expenses
incurred in opposing the motion, including attorney fees,
unless the court finds that the making of the motion was
substantially justified or that other circumstances make an
award of expenses unjust.
If the motion is granted in part and denied in part, the
court may apportion the reasonable expenses incurred in
relation to the motion among the parties and persons in a
just manner.
(b) Failure To Comply With Order.
(1) Sanctions by Court in County Where Deposition Is Taken.
If a deponent fails to be sworn or to answer a question
after being directed to do so by the court in the
county in which the deposition is being taken, the
failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a
party or an officer, director, or managing agent of a
party or a person designated under rule 30(b)(6) or
31(a) to testify on behalf of a party fails to obey an
order to provide or permit discovery, including an
order made under section (a) of this rule or rule 35,
or if a party fails to obey an order entered under rule
26(f), the court in which the action is pending may
make such orders in regard to the failure as are just,
and among others the following:
(A) An order that the matters regarding which the
order was made or any other designated facts shall
be taken to be established for the purposes of the
action in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the disobedient party
to support or oppose designated claims or
defenses, or prohibiting him from introducing
designated matters in evidence;
(C) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceedings or
any part thereof, or rendering a judgment by
default against the disobedient party;
(D) In lieu of any of the foregoing orders or in
addition thereto, an order treating as a contempt
of court the failure to obey any orders except an
order to submit to physical or mental examination;
(E) Where a party has failed to comply with an order
under rule 35(a) requiring him to produce another
for examination such orders as are listed in
sections (A), (B), and (C) of this subsection,
unless the party failing to comply shows that he
is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey
the order or the attorney advising him or both to pay the
reasonable expenses, including attorney fees, caused by the
failure, unless the court finds that the failure was
substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure To Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as
requested under rule 36, and if the party requesting the
admissions thereafter proves the genuineness of the document
or the truth of the matter, he may apply to the court for an
order requiring the other party to pay him the reasonable
expenses incurred in making that proof, including reasonable
attorney fees. The court shall make the order unless it
finds that:
(1) the request was held objectionable pursuant to rule
36(a); or
(2) the admission sought was of no substantial importance;
or
(3) the party failing to admit had reasonable ground to
believe the fact was not true or the document was not
genuine; or
(4) there was other good reason for the failure to admit.
(d) Failure of Party To Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for
Production or Inspection. If a party or an officer,
director, or managing agent of a party or a person
designated under rule 30(b)(6) or 31(a) to testify on behalf
of a party fails;
(1) to appear before the officer who is to take his or her
deposition, after being served with a proper notice; or
(2) to serve answers or objections to interrogatories
submitted under rule 33, after proper service of the
interrogatories; or
(3) to serve a written response to a request for production
of documents or inspection submitted under rule 34,
after proper service of the request, the court in which
the action is pending on motion may make such orders in
regard to the failure as are just, and among others it
may take any action authorized under sections (A), (B),
and (C) of subsection (b)(2) of this rule. In lieu of
any order or in addition thereto, the court shall
require the party failing to act or the attorney
advising the party or both to pay the reasonable
expenses, including attorney fees, caused by the
failure, unless the court finds that the failure was
substantially justified or that other circumstances
make an award of expenses unjust.
The failure to act described in this subsection may not be
excused on the ground that the discovery sought is
objectionable unless the party failing to act has applied
for a protective order as provided by rule 26(c). For
purposes of this section, an evasive or misleading answer is
to be treated as a failure to answer.
(e) Failure To Participate in the Framing of a Discovery Plan.
If a party or his attorney fails to participate in good
faith in the framing of a discovery plan by agreement as is
required by rule 26(f), the court may, after opportunity for
hearing, require such party or his attorney to pay to any
other party the reasonable expenses, including attorney
fees, caused by the failure.
[Amended effective July 1, 1972; September 1, 1985; September 1, 1992; September 1, 1993.]
RULE CR 38
JURY TRIAL OF RIGHT
(-) Defined. A trial is the judicial examination of the issues
between the parties, whether they are issues of law or of fact.
(a) Right of Jury Trial Preserved. The right of trial by jury as
declared by article 1, section 21 of the constitution or as
given by a statute shall be preserved to the parties inviolate.
(b) Demand for Jury. At or prior to the time the case is called
to be set for trial, any party may demand a trial by jury of
any issue triable of right by a jury by serving upon the
other parties a demand therefor in writing, by filing the
demand with the clerk, and by paying the jury fee required
by law. If before the case is called to be set for trial no
party serves or files a demand that the case be tried by a
jury of twelve, it shall be tried by a jury of six members
with the concurrence of five being required to reach a verdict.
(c) Specification of Issues. In his demand a party may specify
the issues which he wishes so tried; otherwise he shall be
deemed to have demanded trial by jury for all the issues so
triable. If he has demanded trial by jury for only some of
the issues, any other party within 10 days after service of
the demand or such lesser time as the court may order, may
serve a demand for trial by jury of any other or all of the
issues of fact in the action.
(d) Waiver of Jury. The failure of a party to serve a demand as
required by this rule, to file it as required by this rule,
and to pay the jury fee required by law in accordance with
this rule, constitutes a waiver by him of trial by jury. A
demand for trial by jury made as herein provided may not be
withdrawn without the consent of the parties.
[Amended effective January 1, 1972; July 29, 1973; August 7, 1981.]
RULE 39
TRIAL BY JURY OR BY THE COURT
(-) Issues--How Tried. (Reserved. See RCW 4.40.010 through 4.40.070.)
(a) By Jury.
(1) Rule. When trial by jury has been demanded as provided in rule 38,
the action shall be designated upon the docket as a jury action. The trial
of all issues so demanded shall be by jury, unless (A) the parties or their
attorneys of record, by written stipulation filed with the court or by an
oral stipulation made in open court and entered in the record, consent to
trial by the court sitting without a jury or (B) the court upon motion or
of its own initiative finds that a right of trial by jury of some or all of
those issues does not exist under the constitution or statutes of the
state.
(2) Questions of Fact for Jury. (Reserved. See RCW 4.44.090.)
(b) By the Court.
(1) Rule. Issues not demanded for trial by jury as provided in rule 38
shall be tried by the court; but, notwithstanding the failure of a party to
demand a jury in an action in which such a demand might have been made of
right, the court in its discretion upon motion may order a trial by a jury
of any or all issues.
(2) Questions of Law To Be Decided by Court. (Reserved. See RCW
4.44.080.)
(c) Advisory Jury and Trial by Consent. In all actions not triable of
right by a jury the court, upon motion or of its own initiative, may try an
issue with an advisory jury or it may, with the consent of both parties,
order a trial with a jury whose verdict has the same effect as if trial by
jury had been a matter of right.
RULE 40
ASSIGNMENT OF CASES
(a) Notice of Trial--Note of Issue.
(1) Of Fact. At any time after the issues of fact are completed in
any case by the service of complaint and answer or reply when
necessary, as herein provided, either party may cause the issues of
fact to be brought on for trial, by serving upon the opposite party a
notice of trial at least 3 days before any day provided by rules of
court for setting causes for trial, which notice shall give the title
of the cause as in the pleadings, and notify the opposite party that
the issues in such action will be brought on for trial at the time set
by the court; and the party giving such notice of trial shall, at
least 5 days before the day of setting such causes for trial, file
with the clerk of the court a note of issue containing the title of
the action, the names of the attorneys and the date when the last
pleading was served; and the clerk shall thereupon enter the cause
upon the trial docket according to the date of the issue.
(2) Of Law. In case an issue of law raised upon the pleadings is
desired to be brought on for argument, either party shall, at least 5
days before the day set apart by the court under its rules for hearing
issues of law, serve upon the opposite party a like notice of trial
and furnish the clerk of the court with a note of issue as above
provided, which note of issue shall specify that the issue to be tried
is an issue of law; and the clerk of the court shall thereupon enter
such action upon the motion docket of the court.
(3) Adjournments. When a cause has once been placed upon either
docket of the court, if not tried or argued at the time for which
notice was given, it need not be noticed for a subsequent session or
day, but shall remain upon the docket from session to session or from
law day to law day until final disposition or stricken off by the
court.
(4) Filing Note by Opposite Party. The party upon whom notice of
trial is served may file the note of issue and cause the action to be
placed upon the calendar without further notice on his part.
(5) Issue May Be Brought to Trial by Either Party. Either party,
after the notice of trial, whether given by himself or the adverse
party, may bring the issue to trial, and in the absence of the adverse
party, unless the court for good cause otherwise directs, may proceed
with his case, and take a dismissal of the action, or a verdict or
judgment, as the case may require.
(b) Methods. Each superior court may provide by local rule for
placing of actions upon the trial calendar (1) without request of the
parties or (2) upon request of a party and notice to the other parties
or (3) in such other manner as the court deems expedient.
(c) Preferences. In setting cases for trial, unless otherwise
provided by statute, preference shall be given to criminal over civil
cases, and cases where the defendant or a witness is in confinement
shall have preference over other cases.
(d) Trials. When a cause is set and called for trial, it shall be
tried or dismissed, unless good cause is shown for a continuance. The
court may in a proper case, and upon terms, reset the same.
(e) Continuances. A motion to continue a trial on the ground of the
absence of evidence shall only be made upon affidavit showing the
materiality of the evidence expected to be obtained, and that due
diligence has been used to procure it, and also the name and address of
the witness or witnesses. The court may also require the moving party to
state upon affidavit the evidence which he expects to obtain; and if the
adverse party admits that such evidence would be given, and that it be
considered as actually given on the trial, or offered and overruled as
improper, the trial shall not be continued. The court, upon its allowance
of the motion, may impose terms or conditions upon the moving party.
(f) Change of Judge. Any right under RCW 4.12.050 to seek
disqualification of a judge will be deemed waived unless, in addition to
the limitations in the statute, the motion and affidavit is filed with the
court no later than thirty days prior to trial before a pre-assigned judge.
For purposes of this rule, "trial" includes any review or appeal from an
administrative body. If a case is reassigned to a different judge less
than forty days prior to trial, a party may then move for a change of judge
within ten days of such reassignment, unless the moving party has
previously made such a motion.
RULE 41
DISMISSAL OF ACTIONS
(a) Voluntary Dismissal.
(1) Mandatory. Subject to the provisions of rules 23(e) and 23.1, any
action shall be dismissed by the court:
(A) By stipulation. When all parties who have appeared so stipulate in
writing; or
(B) By plaintiff before resting. Upon motion of the plaintiff at any
time before plaintiff rests at the conclusion of his opening case.
(2) Permissive. After plaintiff rests after his opening case, plaintiff
may move for a voluntary dismissal without prejudice upon good cause shown
and upon such terms and conditions as the court deems proper.
(3) Counterclaim. If a counterclaim has been pleaded by a defendant
prior to the service upon him of plaintiff's motion for dismissal, the
action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court.
(4) Effect. Unless otherwise stated in the order of dismissal, the
dismissal is without prejudice, except that an order of dismissal operates
as an adjudication upon the merits when obtained by a plaintiff who has
once dismissed an action based on or including the same claim in any court
of the United States or of any state.
(b) Involuntary Dismissal; Effect. For failure of the plaintiff to
prosecute or to comply with these rules or any order of the court, a
defendant may move for dismissal of an action or of any claim against him or her.
(1) Want of Prosecution on Motion of Party. Any civil action shall be
dismissed, without prejudice, for want of prosecution whenever the
plaintiff, counterclaimant, cross claimant, or third party plaintiff
neglects to note the action for trial or hearing within 1 year after any
issue of law or fact has been joined, unless the failure to bring the same
on for trial or hearing was caused by the party who makes the motion to
dismiss. Such motion to dismiss shall come on for hearing only after 10
days' notice to the adverse party. If the case is noted for trial before
the hearing on the motion, the action shall not be dismissed.
(2) Dismissal on Clerk's Motion.
(A) Notice. In all civil cases in which no action of
record has occurred during the previous 12 months, the clerk of the
superior court shall notify the attorneys of record by mail
that the court will dismiss the case for want of prosecution
unless, within 30 days following the mailing of such notice,
a party takes action of record or files a status report with
the court indicating the reason for inactivity and
projecting future activity and a case completion date. If
the court does not receive such a status report, it shall,
on motion of the clerk, dismiss the case without prejudice
and without cost to any party.
(B) Mailing notice; reinstatement. The clerk shall mail
notice of impending dismissal not later than 30 days after
the case becomes eligible for dismissal because of
inactivity. A party who does not receive the clerk's notice
shall be entitled to reinstatement of the case, without
cost, upon motion brought within a reasonable time after
learning of the dismissal.
(C) Discovery in process. The filing of a document
indicating that discovery is occurring between the parties
shall constitute action of record for purposes of this rule.
(D) Other grounds for dismissal and reinstatement.
This rule is not a limitation upon any other power that the
court may have to dismiss or reinstate any action upon
motion or otherwise.
(3) Defendant's Motion After Plaintiff Rests. After the plaintiff, in
an action tried by the court without a jury, has completed the presentation
of his evidence, the defendant, without waiving his right to offer evidence
in the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until
the close of all the evidence. If the court renders judgment on the merits
against the plaintiff, the court shall make findings as provided in rule
52(a). Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subsection and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction, for improper venue,
or for failure to join a party under rule 19, operates as an adjudication
upon the merits.
(c) Dismissal of Counterclaim, Cross Claim, or Third Party Claim. The
provisions of this rule apply to the dismissal of any counterclaim, cross
claim, or third party claim. A voluntary dismissal by the claimant alone
pursuant to subsection (a)(1) of this rule shall be made before a
responsive pleading is served or, if there is none, before the introduction
of evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a plaintiff who has once
dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the court may make
such order for the payment of taxable costs of the action previously
dismissed as it may deem proper and may stay the proceedings in the action
until the plaintiff has complied with the order.
(e) Notice of Settlements. If a case is settled after it has been
assigned for trial, it shall be the duty of the attorneys or of any party
appearing pro se to notify the court promptly of the settlement. If the
settlement is made within 5 days before the trial date, the notice shall be
made by telephone or in person. All notices of settlement shall be
confirmed in writing to the clerk.
RULE CR 42
CONSOLIDATION; SEPARATE TRIALS
(a) Consolidation. When actions involving a common question of
law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in
the actions; it may order all the actions consolidated; and
it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or
to avoid prejudice, or when separate trials will be
conducive to expedition and economy, may order a separate
trial of any claim, cross claim, counterclaim, or third
party claim, or of any separate issue or of any number of
claims, cross claims, counterclaims, third party claims, or
issues, always preserving inviolate the right of trial by jury.
[Adopted effective July 1, 1967.]
RULE CR 43
TAKING OF TESTIMONY
(a) Testimony.
(1) Generally. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise directed by the court or provided
by rule or statute. For good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.
(2)Multiple Examinations. When two or more attorneys are on the same side
trying a case, the attorney conducting the examination of a witness
shall continue until the witness is excused from the stand; and all
objections and offers of proof made during the examination of such
witness shall be made or announced by the attorney who is conducting the
examination or cross examination.
(b) and (c) (Reserved. See ER 103 and 611.)
(d) Oaths of Witnesses.
(1) Administration. The oaths of all witnesses in the superior court
(A) shall be administered by the judge;
(B) shall be administered to each witness individually; and
(C) the witness shall stand while the oath is administered.
(2) Applicability. This rule shall not apply to civil ex parte proceedings
or default divorce cases and in such cases the manner of swearing
witnesses shall be as each superior court may prescribe.
(3) Affirmation in Lieu of Oath. Whenever under these rules an oath is
required to be taken, a solemn affirmation may be accepted in lieu thereof.
(e) Evidence on Motions.
(1) Generally. When a motion is based on facts not appearing of record the
court may hear the matter on affidavits presented by the respective
parties, but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions.
(2) For injunctions, etc. On application for injunction or motion to
dissolve an injunction or discharge an attachment, or to appoint or
discharge a receiver, the notice thereof shall designate the kind of
evidence to be introduced on the hearing. If the application is to be
heard on affidavits, copies thereof must be served by the moving party
upon the adverse party at least 3 days before the hearing. Oral testimony
shall not be taken on such hearing unless permission of the court is first
obtained and notice of such permission served upon the adverse
party at least 3 days before the hearing. This rule shall not be construed
as pertaining to applications for restraining orders or for appointment of
temporary receivers.
(f) Adverse Party as Witness.
(1) Party or Managing Agent as Adverse Witness. A party, or anyone who at
the time of the notice is an officer, director, or other managing agent
(herein collectively referred to as "managing agent") of a public or
private corporation, partnership or association which is a party to an
action or proceeding may be examined at the instance of any adverse party.
Attendance of such deponent or witness may be compelled solely by notice
(in lieu of a subpoena) given in the manner prescribed in rule 30(b) (1)
to opposing counsel of record. Notices for the attendance of a party or of
a managing agent at the trial shall be given not less than 10 days before
trial (exclusive of the day of service, Saturdays, Sundays, and court
holidays). For good cause shown in the manner prescribed in rule 26(c),
the court may make orders for the protection of the party or managing
agent to be examined.
(2) Effect of Discovery, etc. A party who has served interrogatories to be
answered by the adverse party or who has taken the deposition of an
adverse party or of the managing agent of an adverse party shall not be
precluded for that reason from examining such adverse party or managing
agent at the trial. Matters admitted by the adverse party or managing
agent in interrogatory answers, deposition testimony, or trial testimony
are not conclusively established and may be rebutted.
(3) Refusal To Attend and Testify; Penalties. If a party or a managing
agent refuses to attend and testify before the officer designated to take
his deposition or at the trial after notice served as prescribed in rule
30(b)(1), the complaint, answer, or reply of the party may be stricken and
judgment taken against the party, and the contumacious party or managing
agent may also be proceeded against as in other cases of contempt. This
rule shall not be construed:
(A) to compel any person to answer any question where such answer
might tend to incriminate him;
(B) to prevent a party from using a subpoena to compel the attendance of
any party or managing agent to give testimony by deposition or at the trial; nor
(C) to limit the applicability of any other sanctions or penalties
provided in rule 37 or otherwise for failure to attend and give testimony.
(g) Attorney as Witness. If any attorney offers himself as a witness on behalf
of his client and gives evidence on the merits, he shall not argue the case
to the jury, unless by permission of the court.
(h) Report or Transcript as Evidence. Whenever the testimony of a witness at a
trial or hearing which was reported is admissible in evidence at a later
trial, it may be proved by the transcript thereof duly certified by the
person who reported the testimony.
(i) (Reserved. See ER 804.)
(j) Report of Proceedings in Retrial of Nonjury Cases. In the event a cause
has been remanded by the court for a new trial or the taking of further
testimony, and such cause shall have been tried without a jury, and the
testimony in such cause shall have been taken in full and used as the report
of proceedings upon review, either party upon the retrial of such cause or
the taking of further testimony therein shall have the right, provided the
court shall so order after an application on 10 days' notice to the opposing
party or parties, to submit said report of proceedings as the testimony in
said cause upon its second hearing, to the same effect as if the witnesses
called by him in the earlier hearing had been called, sworn, and testified
in the further hearing; but no party shall be denied the right to submit
other or further testimony upon such retrial or further hearing, and the
party having the right of cross examination shall have the privilege of
subpoenaing any witness whose testimony is contained in such report of
proceedings for further cross examination.
(k) Juror Questions for Witnesses. The court shall permit jurors to submit to
the court written questions directed to witnesses. Counsel shall be given
an opportunity to object to such questions in a manner that does not inform
the jury that an objection was made. The court shall establish procedures
for submitting, objecting to, and answering questions from jurors to
witnesses. The court may rephrase or reword questions from jurors to
witnesses. The court may refuse on its own motion to allow a particular
question from a juror to a witness.
[Amended effective January 1, 1977; April 2, 1979; September 1, 1988; amended
effective October 1, 2002; September 1, 2006; September 1, 2010.]
RULE 44
PROOF OF OFFICIAL RECORD
(a) Authentication.
(1) Domestic. An official record kept within the United States, or any
state, district, or commonwealth, territory, or within a territory subject
to the administrative or judicial jurisdiction of the United States, or an
entry therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by the officer's deputy, and
accompanied by a certificate that such officer has the custody. The
certificate may be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated by the
seal of the court, or may be made by any public officer having a seal of
office or official custody of the seal of the political subdivision and
having official duties in the district or political subdivision in which
the record is kept, authenticated by the seal of the officer's office or
the seal of the political subdivision.
(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced by an official publication
thereof; or a copy thereof, attested by a person authorized to make the
attestation, and accompanied by a final certification as to the genuineness
of the signature and official position (A) of the attesting person, or (B)
of any foreign official whose certificate of genuineness of signature and
official position relates to the attestation or is in a chain of
certificates of genuineness of signature and official position relating to
the attestation. A final certification may be made by a secretary of
embassy or legation, consul general, consul, vice-consul, or consular agent
of the United States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If reasonable
opportunity has been given to all parties to investigate the authenticity
and accuracy of the documents, the court may, for good cause shown, either
admit an attested copy without final certification or permit the foreign
official record to be evidenced by an attested summary with or without a
final certification. The final certification is unnecessary if the record
and the attestation are certified as provided in a treaty or convention to
which the United States and the foreign country in which the official
record is located are parties.
(b) Lack of Record. A written statement that after diligent search no
record or entry of a specified tenor is found to exist in the records,
designated by the statement, authenticated as provided in subsection (a)(1)
of this rule in the case of a domestic record, or complying with the
requirements of subsection (a)(2) of this rule for a summary in the case of
a foreign record, is admissible as evidence that the records contain no
such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein by any other method authorized
by law.
RULE 44.1
DETERMINATION OF FOREIGN LAW
(a) Pleading. A party who intends to raise an issue concerning the law
of a state, territory, or other jurisdiction of the United States, or a
foreign country shall give notice in his pleadings in accordance with rule
9(k).
(b) United States Jurisdiction. The law of a state, territory, or other
jurisdiction of the United States shall be determined as provided in RCW
5.24.
(c) Other Jurisdictions. The court, in determining the law of any
jurisdiction other than a state, territory, or other jurisdiction of the
United States, may consider any relevant written material or other source,
including testimony, having due regard for their trustworthiness, whether
or not submitted by a party and whether or not admissible under the Rules
of Evidence. If the court considers any material or source not received in
open court, prior to its determination the court shall:
(1) Identify in the record such material or source;
(2) Summarize in the record any unwritten information received; and
(3) Afford the parties an opportunity to respond thereto. The courts
determination shall be treated as a ruling on a question of law.
45 SUBPOENA (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 46
EXCEPTIONS UNNECESSARY
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been necessary
it is sufficient that a party, at the time the ruling or order of the court
is made or sought, makes known to the court the action which he desires the
court to take or his objection to the action of the court and his grounds
therefor; and, if a party has no opportunity to object to a ruling or order
at the time it is made, the absence of an objection does not thereafter
prejudice him.
RULE CR 47
JURORS
(a) Examination of Jurors. The court may examine the prospective jurors
to the extent it deems appropriate, and shall permit the parties or their
attorneys to ask reasonable questions.
(b) Alternate Jurors. The court may direct that not more than six
jurors in addition to the regular jury be called and impaneled to sit as
alternate jurors. Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury retires to consider
its verdict, become or are found to be unable or disqualified to perform
their duties. Alternate jurors shall be drawn in the same manner, shall
have the same qualifications, shall be subject to the same examination and
challenges, shall take the same oath, and shall have the same functions,
powers, facilities, and privileges as the regular jurors. Each side is
entitled to one peremptory challenge in addition to those otherwise allowed
by law if one or two alternate jurors are to be impaneled, two peremptory
challenges if three or four alternate jurors are to be impaneled, and three
peremptory challenges if five or six alternate jurors are to be impaneled.
The additional peremptory challenges may be used against an alternate juror
only, and the other peremptory challenges allowed by law shall not be used
against an alternate juror. An alternate juror who does not replace a
regular juror may be discharged or temporarily excused after the jury
retires to consider its verdict. When an alternate juror is temporarily
excused but not discharged, the trial judge shall take appropriate steps to
protect such juror from influence, interference or publicity which might
affect that jurors ability to remain impartial, and the trial judge may
conduct brief voir dire before seating such alternate juror for any trial
or deliberations. An alternate juror may be recalled at any time that a
regular juror is unable to serve, including a second phase of any trial
that is bifurcated. If the jury has commenced deliberations prior to the
replacement of a regular juror with an alternate juror, the jury shall be
instructed to disregard all previous deliberations and to begin
deliberations anew.
(c) Procedure When Juror Becomes Ill. (Reserved. See RCW 4.44.290.)
(d) Impaneling Jury. (Reserved. See RCW 4.44.120.)
(e) Challenge.
(1) Kind and Number. (Reserved. See RCW 4.44.130.)
(2) Peremptory Challenges Defined. (Reserved. See RCW 4.44.140.)
(3) Challenges for Cause. (Reserved. See RCW 4.44.150.)
(4) General Causes of Challenge. (Reserved. See RCW 4.44.160.)
(5) Particular Causes of Challenge. (Reserved. See RCW 4.44.170.)
(6) Implied Bias Defined. (Reserved. See RCW 4.44.180.)
(7) Challenge for Actual Bias. (Reserved. See RCW 4.44.190.)
(8) Exemption Not Cause of Challenge. (Reserved.)
(9) Peremptory Challenges. (Reserved. See RCW 4.44.210.)
(10) Order of Taking Challenges. (Reserved. See RCW 4.44.220.)
(11) Objections to Challenges. (Reserved. See RCW 4.44.230.)
(12) Trial of Challenge. (Reserved. See RCW 4.44.240.)
(13) Challenge; Objection and Denial May Be Oral. (Reserved. See RCW
4.44.250.)
(f) Oath of Jurors. (Reserved. See RCW 4.44.260.)
(g) View of Premises by Jury. (Reserved. See RCW 4.44.270.)
(h) Admonitions to Jurors. (Reserved. See RCW 4.44.280.)
(i) Care of Jury While Deliberating.
(1) Generally. During trial and deliberations the jury may be allowed
to separate unless good cause is shown, on the record, for sequestration of
the jury.
(2) Communication Restricted. Unless the jury is allowed to separate,
the jurors shall be kept together under the charge of one or more officers
until they agree upon their verdict or are discharged by the court. The
officer shall keep the jurors separate from other persons and shall not
allow any communication which may affect the case to be made to the jurors,
nor make any himself, unless by order of the court, except to ask the
jurors if they have agreed upon their verdict. The officer shall not,
before the verdict is rendered, communicate to any person the state of the
jurors' deliberations or their verdict.
(3) Motions. Any motions or proceedings concerning the separation or
sequestration of the jury shall be made out of the presence of the jury.
(j) Note Taking by Jurors. In all cases, jurors shall be allowed to
take written notes regarding the evidence presented to them and keep these
notes with them during their deliberation. The court may allow jurors to
keep these notes with them in the jury room during recesses, in which case
jurors may review their own notes but may not share or discuss the notes
with other jurors until they begin deliberating. Such notes should be
treated as confidential between the jurors making them and their fellow
jurors, and shall be destroyed immediately after the verdict is rendered.
[Amended effective July 1, 1974; September 1, 1983; September 1, 1989;
April 20, 1990; amended effective October 1, 2002.]
RULE 48
JURIES OF LESS THAN TWELVE
The parties may stipulate that the jury shall consist of any number
less than 12 or that a verdict or a finding of a stated majority of the
jurors shall be taken as the verdict or finding of the jury.
RULE CR 49
VERDICTS
(-) General Verdict. A general verdict is that by which the
jury pronounces generally upon all or any of the issues in favor
of either the plaintiff or defendant.
(a) Special Verdict. The court may require a jury to return
only a special verdict in the form of a special written finding
upon each issue of fact. In that event the court may submit to the
jury written questions susceptible of categorical or other brief
answer or may submit written forms of the several special findings
which might properly be made under the pleadings and evidence; or
it may use such other method of submitting the issues and
requiring the written findings thereon as it deems most
appropriate. The court shall give to the jury such explanation and
instruction concerning the matter thus submitted as may be
necessary to enable the jury to make its findings upon each issue.
If in so doing the court omits any issue of fact raised by the
pleadings or by the evidence, each party waives his rights to a
trial by jury of the issue so omitted unless before the jury
retires he demands its submission to the jury. As to an issue
omitted without such demand the court may make a finding; or, if
it fails to do so, it shall be deemed to have made a finding in
accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories.
The court may submit to the jury, together with appropriate forms
for a general verdict, written interrogatories upon one or more
issues of fact the decision of which is necessary to a verdict.
The court shall give such explanation or instruction as may be
necessary to enable the jury both to make answers to the
interrogatories and to render a general verdict, and the court
shall direct the jury both to make written answers and to render a
general verdict. When the general verdict and the answers are
harmonious, the appropriate judgment upon the verdict and answers
shall be entered pursuant to rule 58. When the answers are
consistent with each other but one or more is inconsistent with
the general verdict, judgment may be entered pursuant to rule 58
in accordance with the answers, notwithstanding the general
verdict, or the court may return the jury for further
consideration of its answers and verdict or may order a new trial.
When the answers are inconsistent with each other and one or more
is likewise inconsistent with the general verdict, judgment shall
not be entered, but the court shall return the jury for further
consideration of its answers and verdict or shall order a new
trial.
(c) Discharge of Jury.
(1) Without Verdict. (Reserved. See RCW 4.44.330.)
(2) Effect of Discharge. (Reserved. See RCW 4.44.340.)
(d) Court Recess During Deliberation. (Reserved. See RCW
4.44.350.)
(e) Proceedings When Jurors Have Agreed. (Reserved. See RCW
4.44.360.)
(f) Manner of Giving Verdict. (Reserved. See RCW 4.44.370.)
(g) Ten Jurors in Civil Cases. (Reserved. See RCW 4.44.380.)
(h) Jury May Be Polled. (Reserved. See RCW 4.44.390.)
(i) Correction of Informal Verdict. (Reserved. See RCW
4.44.400.)
(j) Jury To Assess Amount of Recovery. (Reserved. See RCW
4.44.450.)
(k) Receiving Verdict and Discharging Jury. (Reserved. See RCW
4.44.460.)
(l) Any Juror Verdict. When a jury decides a verdict, any
juror may vote on any of the questions posed. It is not necessary
that the same ten jurors agree on every answer, as long as each
answer is agreed to by any ten or more jurors.
[Adopted July 1, 1967; amended effective September 1, 2001.]]
RULE CR 50
JUDGMENT AS A MATTER OF LAW IN JURY TRIALS;
ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS
(a) Judgment as a Matter of Law.
(1) Nature and Effect of Motion. If, during a trial by jury, a party
has been fully heard with respect to an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find or have found
for that party with respect to that issue, the court may grant a motion for
judgment as a matter of law against the party on any claim, counterclaim,
cross claim, or third party claim that cannot under the controlling law be
maintained without a favorable finding on that issue. Such a motion shall
specify the judgment sought and the law and the facts on which the moving
party is entitled to the judgment. A motion for judgment as a matter of law
which is not granted is not a waiver of trial by jury even though all
parties to the action have moved for judgment as a matter of law.
(2) When Made. A motion for judgment as a matter of law may be made at
any time before submission of the case to the jury.
(b) Renewing Motion for Judgment After Trial; Alternative Motion for
New Trial. If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all the evidence, the
court is considered to have submitted the action to the jury subject to the
court's later deciding the legal questions raised by the motion. The
movant may renew its request for judgment as a matter of law by filing a
motion no later than 10 days after entry of judgment - and may
alternatively request a new trial or join a motion for a new trial under
rule 59. In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
(c) Alternative Motions for Judgment as a Matter of Law or for a New
Trial--Effect of Appeal. Whenever a motion for a judgment as a matter of
law and, in the alternative, for a new trial shall be filed and submitted
in any superior court in any civil cause tried before a jury, and such
superior court shall enter an order granting such motion for judgment as a
matter of law, such court shall at the same time, in the alternative, pass
upon and decide in the same order such motion for a new trial; such ruling
upon said motion for a new trial not to become effective unless and until
the order granting the motion for judgment as a matter of law shall
thereafter be reversed, vacated, or set aside in the manner provided by
law. An appeal to the Supreme Court or Court of Appeals from a judgment
granted on a motion for judgment as a matter of law shall, of itself,
without the necessity of cross appeal, bring up for review the ruling of
the trial court on the motion for a new trial; and the appellate court
shall, if it reverses the judgment entered as a matter of law, review and
determine the validity of the ruling on the motion for a new trial.
(d) Same: Denial of Motion for Judgment as a Matter of Law. If the
motion for judgment as a matter of law is denied, the party who prevailed
on that motion may, as appellee, assert grounds entitling the party to a
new trial in the event the appellate court concludes that the trial court
erred in denying the motion for judgment. If the appellate court reverses
the judgment, nothing in this rule precludes it from determining that the
appellee is entitled to a new trial, or from directing the trial court to
determine whether a new trial shall be granted.
[Amended effective January 1, 1977; July 1, 1980; September 1, 1984;
September 17, 1993; September 1, 2005.]
RULE CR 51
INSTRUCTIONS TO JURY AND DELIBERATION
(a) Proposed. Unless otherwise requested by the trial judge on timely
notice to counsel, proposed instructions shall be submitted when the case
is called for trial. Proposed instructions upon questions of law developed
by the evidence, which could not reasonably be anticipated, may be
submitted at any time before the court has instructed the jury.
(b) Submission. Submission of proposed instructions shall be by
delivering the original and three or more copies as required by the trial
judge, by filing one copy with the clerk, identified as the party's
proposed instructions, and by serving one copy upon each opposing counsel.
(c) Form. Each proposed instruction shall be typewritten or printed on
a separate sheet of letter-size (8-1/2 by 11 inches) paper. Except for one
copy of each, the instructions delivered to the trial court shall not be
numbered or identified as to the proposing party. One copy delivered to the
trial court, and the copy filed with the clerk, and copies served on each
opposing counsel shall be numbered and identified as to proposing party,
and may contain supporting annotations.
(d) Published Instructions.
(1) Request. Any instruction appearing in the Washington Pattern
Instructions (WPI) may be requested by counsel who must submit the proper
number of copies of the requested instruction, identified by number as in
section (c) of this rule, in the form he wishes it read to the jury. If the
instruction in WPI allows or provides for a choice of wording by the use of
brackets or otherwise, the written requested instruction shall use the
choice of wording which is being requested.
(2) Record on Review. Where the refusal to give a requested instruction
is an asserted error on review, a copy of the requested instruction shall
be placed in the record on review.
(3) Local Option. Any superior court may adopt a local rule to
substitute for subsection (d)(1) and to allow instructions appearing in the
Washington Pattern Instructions (WPI) to be requested by reference to the
published number. If the instruction in WPI allows or provides for a choice
of wording by the use of brackets or otherwise, the local rule must require
that the written request which designates the number of the instruction
shall also designate the choice of wording which is being requested.
(e) Disregarding Requests. The trial court may disregard any proposed
instruction not submitted in accordance with this rule.
(f) Objections to Instruction. Before instructing the jury, the court
shall supply counsel with copies of its proposed instructions which shall
be numbered. Counsel shall then be afforded an opportunity in the absence
of the jury to make objections to the giving of any instruction and to the
refusal to give a requested instruction. The objector shall state
distinctly the matter to which he objects and the grounds of his objection,
specifying the number, paragraph or particular part of the instruction to
be given or refused and to which objection is made.
(g) Instructing the Jury and Argument. After counsel have completed
their objections and the court has made any modifications deemed
appropriate, the court shall then provide each counsel with a copy of the
instructions in their final form. The court shall then read the
instructions to the jury. The plaintiff or party having the burden of proof
may then address the jury upon the evidence, and the law as contained in
the courts instructions; after which the adverse party may address the
jury; followed by the rebuttal of the party first addressing the jury.
(h) Deliberation. After argument, the jury shall retire to consider its
verdict. In addition to the written instructions given, the jury shall take
with it all exhibits received in evidence, except depositions. Copies may
be substituted for any parts of public records or private documents as
ought not, in the opinion of the court, to be taken from the person having
them in possession. Pleadings shall not go to the jury room.
(i) Questions from Jury During Deliberations. The jury shall be
instructed that any question it wishes to ask the court about the
instructions or evidence should be signed, dated and submitted in writing
to the bailiff without any indication of the status of the jury’s
deliberations. The court shall notify the parties of the contents of the
questions and provide them an opportunity to comment upon an appropriate
response. Written questions from the jury, the court’s response and any
objections thereto shall be made a part of the record. The court shall
respond to all questions from a deliberating jury in open court or in
writing. In its discretion, the court may grant a jury’s request to rehear
or replay evidence, but should do so in a way that is least likely to be
seen as a comment on the evidence, in a way that is not unfairly
prejudicial and in a way that minimizes the possibility that jurors will
give undue weight to such evidence. Any additional instruction upon any
point of law shall be given in writing.
(j) Comments Upon Evidence. Judges shall not instruct with respect to
matters of fact, nor comment thereon.
[Amended effective November 3, 1967; March 29, 1968; January 1, 1977;
amended effective October 1, 2002.]
RULE CR 52
DECISIONS, FINDINGS AND CONCLUSIONS
(a) Requirements.
(1) Generally. In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially and state
separately its conclusions of law. Judgment shall be entered pursuant to
rule 58 and may be entered at the same time as the entry of the findings of
fact and the conclusions of law.
(2) Specifically Required. Without in any way limiting the requirements
of subsection (1), findings and conclusions are required:
(A) Temporary injunctions. In granting or refusing temporary injunctions.
(B) Domestic relations. In connection with all final decisions in
adoption, custody, and divorce proceedings, whether heard ex parte or not.
In all cases in which the court makes specific findings of physical or
sexual abuse or exploitation of a child the court shall direct the court
clerk to notify the state patrol of the findings pursuant to RCW 43.43.840.
(C) Other. In connection with any other decision where findings and
conclusions are specifically required by statute, by another rule, or by a
local rule of the superior court.
(3) Proposed. Requests for proposed findings of fact are not necessary
for review.
(4) Form. If a written opinion or memorandum of decision is filed, it
will be sufficient if formal findings of fact and conclusions of law are included.
(5) When Unnecessary. Findings of fact and conclusions of law are not necessary:
(A) Stipulation. Where all parties stipulate in writing that there will
be no appeal.
(B) Decision on motions. On decisions of motions under rules 12 or 56
or any other motion, except as provided in rules 41(b)(3) and 55(b)(2).
(C) Temporary restraining orders. On the issuance of temporary
restraining orders issued ex parte.
(b) Amendment of Findings. Upon motion of a party filed not later than
10 days after entry of judgment the court may amend its findings or make
additional findings and may amend the judgment accordingly. The motion may
be made with a motion for a new trial pursuant to rule 59. When findings of
fact are made in actions tried by the court without a jury, the question of
the sufficiency of evidence to support the findings may thereafter be
raised whether or not the party raising the question has made in the court
an objection to such findings or has made a motion to amend them or a
motion for judgment.
(c) Presentation. Unless an emergency is shown to exist, or a party has
failed to appear at a hearing or trial, the court shall not sign findings
of fact or conclusions of law until the defeated party or parties have
received 5 days' notice of the time and place of the submission, and have
been served with copies of the proposed findings and conclusions. Persons
who have failed to appear at a hearing or trial after notice, may, in the
discretion of the trial court, be deemed to have waived their right to
notice of presentation or previous review of the proposed findings and conclusions.
(d) Judgment Without Findings, etc. A judgment entered in a case tried
to the court where findings are required, without findings of fact having
been made, is subject to a motion to vacate within the time for the taking
of an appeal. After vacation, the judgment shall not be reentered until
findings are entered pursuant to this rule.
(e) Time Limit for Decision. (Reserved. See RCW 2.08.240.)
[Amended effective September 1, 1985; January 1, 1988; September 1, 2005.]
RULE 53
MASTERS
(RESERVED)
RULE 53.1
REFEREES
(a) Referees--Definition and Powers. (Reserved. See RCW 2.24.060.)
(b) Reference by Consent--Right to Jury Trial. (Reserved. See RCW
4.48.010.)
(c) Reference Without Consent. (Reserved. See RCW 4.48.020.)
(d) To Whom Reference May Be Ordered. (Reserved. See RCW 4.48.030.)
(e) Qualifications of Referees. (Reserved. See RCW 4.48.040.)
(f) Challenges to Referees. (Reserved. See RCW 4.48.050.)
(g) Trial Procedure--Powers of Referee. (Reserved. See RCW 4.48.060.)
(h) Referee's Report--Contents--Evidence, Filing of, Frivolous.
(Reserved. See RCW 4.48.070.)
(i) Proceedings on Filing of Report. (Reserved. See RCW 4.48.080.)
(j) Judgment on Referees Report. (Reserved. See RCW 4.48.090.)
(k) Fees of Referees. (Reserved. See RCW 4.48.100.)
RULE 53.2
COURT COMMISSIONERS
(a) Appointment of Court Commissioners--Qualifications--Term of Office.
(Reserved. See RCW 2.24.010.)
(b) Oath. (Reserved. See RCW 2.24.020.)
(c) Salary. (Reserved. See RCW 2.24.030.)
(d) Powers of Commissioners--Fees. (Reserved. See RCW 2.24.040.)
(e) Revision by Court. (Reserved. See RCW 2.24.050.)
RULE 53.3
APPOINTMENT OF MASTERS IN DISCOVERY MATTERS
(a) Appointment. The court in which any action is pending may appoint a
special master either to preside at depositions or to adjudicate discovery
disputes, or both. Such appointment may be made, for good cause shown, upon
the request of any party in pending litigation or upon the court's own
motion.
(b) Qualifications. The master shall be a lawyer admitted to practice
in the state of Washington.
(c) Compensation. The compensation of the master shall be fixed by the
court. Payment of the master's compensation shall be charged to such of the
parties or paid out of such other available funds as the court shall
direct, but in determining payment of compensation the court shall take
into account the relative financial resources of the parties and such other
factors as the court deems appropriate.
(d) Powers. The order of reference to the master may specify the duties
of the master. It may direct that the master preside at depositions and
make rulings on issues arising at the depositions. It may direct the master
to hear and report to the court on unresolved discovery disputes and to
make recommendations as to the resolution of such disputes, as to the
imposition of terms or sanctions to be assessed against any party, and as
to which party or parties shall bear the costs of the master. If directed
by the court, the master shall prepare a report upon the matters submitted
to the master by the order of reference. A party may request that the
report be sealed pursuant to rule 26(c). The report with the rulings and
recommendations of the master shall be reviewed by the court and may be
adopted or revised as the court deems just.
CR 53.4
PROCEDURES FOR MANDATORY MEDIATION OF HEALTH CARE
CLAIMS
(a) Scope of Rule. This rule governs the procedure in the superior court
in all claims subject to mandatory mediation under RCW 7.70.100 and
.110.
(b) Voluntary Mediation. The parties may establish a procedure for
mediation that differs from this rule provided the procedure and the
selection of the mediator are agreed to in writing and signed by all
parties.
(c) Deadlines. Except as otherwise ordered by the court for good cause
shown, mediation under RCW 7.70.100 shall be commenced no later than
30 days before the trial date. Mediation under RCW 7.70.110 shall be
commenced no later than 90 days after the selection of the mediator.
(d) Waiver of Mediation. Upon petition of any party that mediation is not
appropriate, the court shall order or the mediator may determine that
the claim is not appropriate for mediation.
(e) Appointment of Mediator. Subject to the conditions in this section,
the court shall designate a mediator from the register described in
section (g) upon the request of any party. Except upon stipulation in
writing signed by all parties, the court shall not make this
designation if the parties have agreed in writing to the selection of
a mediator as contemplated by section (b) or have obtained a waiver
of mediation under section (d). Except upon stipulation in writing
signed by all parties, the court shall designate a mediator no sooner
than 180 days before trial, or for mediation requested under RCW
7.70.100, no sooner than 180 days after the good faith request for
mediation.
(f) Mediation Procedure. Promptly upon the designation of a mediator, the
plaintiff shall arrange a conference call among the mediator and
counsel for each party to discuss the procedural aspects of the
mediation. Except to the extent the mediator directs otherwise, the
following procedures shall apply:
(1) Copy of Pleadings. Upon selection of a mediator, the parties
shall provide the mediator with copies of the relevant
Pleadings.
(2) Notice of Time and Place. The mediator shall fix a time and
place for the mediation conference, and all subsequent sessions,
that is reasonably convenient for the parties and shall give
them at least 14 days' written notice of the initial conference.
In giving notice the mediator may use a form provided by the
court.
(3) Memoranda. Each party shall provide the mediator with a
confidential memorandum presenting in concise form its
contentions relative to both liability and damages. This
memorandum shall not exceed 10 pages in length. A copy of the
memorandum shall be delivered to the mediator at least seven
days before the mediation conference. Any party may deliver a
copy of his or her memorandum to any other party. In addition,
each party shall deliver to the mediator a confidential
statement of its current offer or demand. Any party may deliver
a copy of his or her statement to any other party.
(4) Attendance and Preparation Required. The attorney who is
primarily responsible for each party's case shall personally
attend the mediation conference and any subsequent sessions of
that conference. The attorney for each party shall come prepared
to discuss the following matters in detail and in good faith:
(A) All liability issues.
(B) All damage issues.
(C) The position, of his or her client relative to settlement.
(5) Attendance of Parties and Insurers. For purposes of this
section, "insurer" shall include "self insurer." In addition to
counsel, all parties and insurers shall attend the mediation in
person. In the event a party defendant has provided his or her
insurer with full authority to settle, such party's attendance
is optional. The mediator may also, at his or her discretion,
but only in exceptional cases, excuse a party or insurer from
personally attending the mediation conference. Those excused
from personal attendance by the mediator shall be on call by
telephone during the conference.
(6) Failure to Attend. Willful or negligent failure to attend the
mediation conference, or to comply with this rule or with the
directions of the mediator, shall be reported to the court by
the mediator in writing and may result in the imposition of such
sanctions as the court may find appropriate.
(7) Proceedings Privileged. All proceedings of the mediation
conference, including any statement made by any party, attorney
or other participant, shall, in all respects, be privileged and
not reported, recorded, placed in evidence, used for
impeachment, made known to the trial court or jury, or construed
for any purpose as an admission. No party shall be bound by
anything done or said at the conference unless a settlement is
reached, in which event the agreement upon a settlement shall be
reduced to writing and shall be binding upon all parties to that
agreement.
(8) Mediator's Suggestions. The mediator shall have no obligation to
make any written comments or recommendations, but may in his or
her discretion provide the parties or their counsel with a
confidential written settlement recommendation memorandum, but
only if all parties agree. No copy of any such memorandum shall
be filed with the clerk or made available, in whole or in part,
directly or indirectly, either to the court or to the jury.
(9) Certification of Mediation. Not more than 10 days after the
mediation concludes or the mediator determines that the claim is
not appropriate for mediation, the parties shall certify in
writing to the court the manner of mediation, if any, and
compliance with the provisions of this rule.
(g) Register of Volunteer Mediators.
(1) Court to Maintain Register. The court shall establish and
maintain a register of qualified attorneys who have volunteered
to serve as mediators. The attorneys so registered shall be
selected by the court from lists of qualified attorneys at law
who are current members in good standing of the Washington State
Bar Association.
(2) Qualifications. In order to qualify as a mediator, an attorney
shall:
(A) Have been a member of the Washington State Bar Association
for at least five years; and
(B) Have experience or expertise related to litigating actions
arising from injury occurring as a result of health care;
and
(C) Have 6 hours of CLE mediator training and acted as a
mediator in at least 10 cases, three of which were medical
malpractice; or
(D) Be a retired judge having experience or expertise related
to actions arising from injury occurring as a result of
health care and satisfy the requirements of (2)(C) herein.
131 Wn.2d 104-266, 1101, [Effective March 11, 1997; amended September 1,
2007.]
RULE 54
JUDGMENTS AND COSTS
(a) Definitions.
(1) Judgment. A judgment is the final determination of the rights of
the parties in the action and includes any decree and order from
which an appeal lies. A judgment shall be in writing and signed
by the judge and filed forthwith as provided in rule 58.
(2) Order. Every direction of a court or judge, made or entered in
writing, not included in a judgment, is denominated an order.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more
than one claim for relief is presented in an action, whether as a
claim, counterclaim, cross claim, or third party claim, or when
multiple parties are involved, the court may direct the entry of a
final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination in the judgment, supported
by written findings, that there is no just reason for delay and upon
an express direction for the entry of judgment. The findings may be
made at the time of entry of judgment or thereafter on the courts own
motion or on motion of any party. In the absence of such findings,
determination and direction, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time before
the entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be different in
kind from or exceed in amount that prayed for in the demand for
judgment. Except as to a party against whom a judgment is entered by
default, every final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings.
(d) Costs, Disbursements, Attorney's Fees, and Expenses.
(1) Costs and Disbursements. Costs and disbursements shall be fixed
and allowed as provided in RCW 4.84 or by any other applicable
statute. If the party to whom costs are awarded does not file a cost
bill or an affidavit detailing disbursements within 10 days after the
entry of the judgment, the clerk shall tax costs and disbursements
pursuant to CR 78(e).
(2) Attorney's Fees and Expenses. Claims for attorney's fees and
expenses, other than costs and disbursements, shall be made by motion
unless the substantive law governing the action provides for the
recovery of such fees and expenses as an element of damages to be
proved at trial. Unless otherwise provided by statute or order of the
court, the motion must be filed no later than 10 days after entry of
judgment.
(e) Preparation of Order or Judgment. The attorney of record for the
prevailing party shall prepare and present a proposed form of order or
judgment not later than 15 days after the entry of the verdict or
decision, or at any other time as the court may direct. Where the
prevailing party is represented by an attorney of record, no order or
judgment may be entered for the prevailing party unless presented or
approved by the attorney of record. If both the prevailing party and
his attorney of record fail to prepare and present the form of order
or judgment within the prescribed time, any other party may do so,
without the approval of the attorney of record of the prevailing party
upon notice of presentation as provided in subsection (f)(2).
(f) Presentation.
(1) Time. Judgments may be presented at the same time as the findings
of fact and conclusions of law under rule 52.
(2) Notice of Presentation. No order or judgment shall be signed or
entered until opposing counsel have been given 5 days' notice of
presentation and served with a copy of the proposed order or
judgment unless:
(A) Emergency. An emergency is shown to exist.
(B) Approval. Opposing counsel has approved in writing the entry
of the proposed order or judgment or waived notice of
presentation.
(C) After verdict, etc. If presentation is made after entry of
verdict or findings and while opposing counsel is in open
court.
[Amended effective September 1, 1989; September 1, 2007.]
RULE 55
DEFAULT AND JUDGMENT
(a) Entry of Default.
(1) Motion. When a party against whom a judgment for affirmative relief
is sought has failed to appear, plead, or otherwise defend as provided by
these rules and that fact is made to appear by motion and affidavit, a
motion for default may be made.
(2) Pleading After Default. Any party may respond to any pleading or
otherwise defend at any time before a motion for default and supporting
affidavit is filed, whether the party previously has appeared or not. If
the party has appeared before the motion is filed, he may respond to the
pleading or otherwise defend at any time before the hearing on the motion.
If the party has not appeared before the motion is filed he may not respond
to the pleading nor otherwise defend without leave of court. Any
appearances for any purpose in the action shall be for all purposes under
this rule 55.
(3) Notice. Any party who has appeared in the action for any purpose
shall be served with a written notice of motion for default and the
supporting affidavit at least 5 days before the hearing on the motion. Any
party who has not appeared before the motion for default and supporting
affidavit are filed is not entitled to a notice of the motion, except as
provided in rule 55(f)(2)(A).
(4) Venue. A motion for default shall include a statement of the basis
for venue in the action. A default shall not be entered if it clearly
appears to the court from the papers on file that the action was brought in
an improper county.
(b) Entry of Default Judgment. As limited in rule 54(c), judgment after
default may be entered as follows, if proof of service is on file as
required by subsection (b)(4):
(1) When Amount Certain. When the claim against a party, whose default
has been entered under section (a), is for a sum certain or for a sum which
can by computation be made certain, the court upon motion and affidavit of
the amount due shall enter judgment for that amount and costs against the
party in default, if he is not an infant or incompetent person. No judgment
by default shall be entered against an infant or incompetent person unless
represented by a general guardian or guardian ad litem. Findings of fact
and conclusions of law are not necessary under this subsection even though
reasonable attorney fees are requested and allowed.
(2) When Amount Uncertain. If, in order to enable the court to enter
judgment or to carry it into effect, it is necessary to take an account or
to determine the amount of damages or to establish the truth of any
averment by evidence or to make an investigation of any other matter, the
court may conduct such hearings as are deemed necessary or, when required
by statute, shall have such matters resolved by a jury. Findings of fact
and conclusions of law are required under this subsection.
(3) When Service by Publication or Mail. In an action where the service
of the summons was by publication, or by mail under rule 4(d)(4), the
plaintiff, upon the expiration of the time for answering, may, upon proof
of service, apply for judgment. The court must thereupon require proof of
the demand mentioned in the complaint, and must require the plaintiff or
his agent to be examined on oath respecting any payments that have been
made to the plaintiff, or to anyone for his use on account of such demand,
and may render judgment for the amount which he is entitled to recover, or
for such other relief as he may be entitled to.
(4) Costs and Proof of Service. Costs shall not be awarded and default
judgment shall not be rendered unless proof of service is on file with the
court.
(c) Setting Aside Default.
(1) Generally. For good cause shown and upon such terms as the court
deems just, the court may set aside an entry of default and, if a judgment
by default has been entered, may likewise set it aside in accordance with
rule 60(b).
(2) When Venue Is Improper. A default judgment entered in a county of
improper venue is valid but will on motion be vacated for irregularity
pursuant to rule 60(b)(1). A party who procures the entry of the judgment,
shall in the vacation proceedings, be required to pay to the party seeking
vacation the costs and reasonable attorney fees incurred by the party in
seeking vacation if the party procuring the judgment could have determined
the county of proper venue with reasonable diligence. This subsection does
not apply if either (a) the parties stipulate in writing to venue after
commencement of the action, or (b) the defendant has appeared, has been
given written notice of the motion for an order of default, and does not
object to venue before the entry of the default order.
(d) Plaintiffs, Counterclaimants, Cross Claimants. The provisions of
this rule apply whether the party entitled to the judgment by default is a
plaintiff, a third party plaintiff, or a party who has pleaded a cross
claim or counterclaim. In all cases a judgment by default is subject to the
limitations of rule 54(c).
(e) Judgment Against State. (Reserved.)
(f) How Made After Elapse of Year.
(1) Notice. When more than 1 year has elapsed after service of summons
with no appearance being made, the court shall not sign an order of default
or enter a judgment until a notice of the time and place of the application
for the order or judgment is served on the party in default, not less than
10 days prior to the entry. Proof by affidavit of the service of the notice
shall be filed before entry of the judgment.
(2) Service. Service of notice of the time and place on the application
for the order of default or default judgment shall be made as follows:
(A) by service upon the attorney of record;
(B) if there is no attorney of record, then by service upon the
defendant by certified mail with return receipt of said service to be
attached to the affidavit in support of the application; or
(C) by a personal service upon the defendant in the same manner
provided for service of process.
(D) If service of notice cannot be made under subsections (A) and (C),
the notice may be given by publication in a newspaper of general
circulation in the county in which the action is pending for one
publication, and by mailing a copy to the last known address of each
defendant. Both the publication and mailing shall be done 10 days prior to
the hearing.
RULE 56
SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross claim, or to obtain a declaratory judgment may,
after the expiration of the period within which the defendant is required
to appear, or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment in
his favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or
cross claim is asserted or a declaratory judgment is sought may move with
or without supporting affidavits for a summary judgment in his favor as to
all or any part thereof.
(c) Motion and Proceedings. The motion and any supporting affidavits,
memoranda of law, or other documentation shall be filed and served not
later than 28 calendar days before the hearing. The adverse party may file
and serve opposing affidavits, memoranda of law or other documentation not
later than 11 calendar days before the hearing. The moving party may file
and serve any rebuttal documents not later than 5 calendar days prior to
the hearing. If the date for filing either the response or rebuttal falls
on a Saturday, Sunday, or legal holiday, then it shall be filed and served
not later than the next day nearer the hearing which is neither a Saturday,
Sunday, or legal holiday. Summary judgment motions shall be heard more than
14 calendar days before the date set for trial unless leave of court is
granted to allow otherwise. Confirmation of the hearing may be required by
local rules. The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue
as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under the rule
judgment is not rendered upon the whole case or for all the relief asked
and a trial is necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by interrogating
counsel, shall if practicable ascertain what material facts exist without
substantial controversy and what material facts are actually and in good
faith controverted. It shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to which
the amount of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. Upon the trial of the
action, the facts so specified shall be deemed established, and the trial
shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting
and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith.
The court may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits. When a
motion for summary judgment is made and supported as provided in this rule,
an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue
for trial. If he does not so respond, summary judgment, if appropriate,
shall be entered against him.
(f) When Affidavits Are Unavailable. Should it appear from the
affidavits of a party opposing the motion that he cannot, for reasons
stated, present by affidavit facts essential to justify his opposition, the
court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction
of the court at any time that any of the affidavits presented pursuant to
this rule are presented in bad faith or solely for the purpose of delay,
the court shall forthwith order the party employing them to pay to the
other party the amount of the reasonable expenses which the filing of the
affidavits caused him to incur, including reasonable attorney fees, and any
offending party or attorney may be adjudged guilty of contempt.
(h) Form of Order. The order granting or denying the motion for summary
judgment shall designate the documents and other evidence called to the
attention of the trial court before the order on summary judgment was
entered.
RULE 57
DECLARATORY JUDGMENTS
The procedure for obtaining a declaratory judgment pursuant to the
Uniform Declaratory Judgments Act, RCW 7.24, shall be in accordance with
these rules, and the right to trial by jury may be demanded under the
circumstances and in the manner provided in rules 38 and 39. The existence
of another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate. The court may order a speedy
hearing of an action for a declaratory judgment and may advance it on the
calendar.
RULE 58
ENTRY OF JUDGMENT
(a) When. Unless the court otherwise directs and subject to the
provisions of rule 54(b), all judgments shall be entered immediately after
they are signed by the judge.
(b) Effective Time. Judgments shall be deemed entered for all
procedural purposes from the time of delivery to the clerk for filing,
unless the judge earlier permits the judgment to be filed with him as
authorized by rule 5(e).
(c) Notice of Entry. (Reserved. See rule 54(f).)
(d) (Reserved.)
(e) Judgment by Confession. (Reserved. See RCW 4.60.)
(f) Assignment of Judgment. (Reserved. See RCW 4.56.090.)
(g) Interest on Judgment. (Reserved. See RCW 4.56.110.)
(h) Satisfaction of Judgment. (Reserved. See RCW 4.56.100.)
(i) Lien of Judgment. (Reserved. See RCW 4.56.190.)
(j) Commencement of Lien on Real Estate. (Reserved. See RCW 4.56.200.)
(k) Cessation of Lien--Extension Prohibited. (Reserved. See RCW
4.56.210.)
(l) Revival of Judgments. (Reserved.)
RULE CR 59
NEW TRIAL, RECONSIDERATION, AND AMENDMENT
OF JUDGMENTS
(a) Grounds for New Trial or Reconsideration. On the motion of the
party aggrieved, a verdict may be vacated and a new trial granted to all or
any of the parties, and on all issues, or on some of the issues when such
issues are clearly and fairly separable and distinct, or any other decision
or order may be vacated and reconsideration granted. Such motion may be
granted for any one of the following causes materially affecting the
substantial rights of such parties:
(1) Irregularity in the proceedings of the court, jury or adverse
party, or any order of the court, or abuse of discretion, by which such
party was prevented from having a fair trial.
(2) Misconduct of prevailing party or jury; and whenever any one or
more of the jurors shall have been induced to assent to any general or
special verdict or to a finding on any question or questions submitted to
the jury by the court, other and different from his own conclusions, and
arrived at by a resort to the determination of chance or lot, such
misconduct may be proved by the affidavits of one or more of the jurors;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Newly discovered evidence, material for the party making the
application, which he could not with reasonable diligence have discovered
and produced at the trial;
(5) Damages so excessive or inadequate as unmistakably to indicate that
the verdict must have been the result of passion or prejudice;
(6) Error in the assessment of the amount of recovery whether too large
or too small, when the action is upon a contract, or for the injury or
detention of property;
(7) That there is no evidence or reasonable inference from the evidence
to justify the verdict or the decision, or that it is contrary to law;
(8) Error in law occurring at the trial and objected to at the time by
the party making the application; or
(9) That substantial justice has not been done.
(b) Time for Motion; Contents of Motion. A motion for a new trial or
for reconsideration shall be filed not later than 10 days after the entry
of the judgment, order, or other decision. The motion shall be noted at the
time it is filed, to be heard or otherwise considered within 30 days after
the entry of the judgment, order, or other decision, unless the court
directs otherwise. A motion for a new trial or for reconsideration shall
identify the specific reasons in fact and law as to each ground on which
the motion is based.
(c) Time for Serving Affidavits. When a motion for new trial is based
on affidavits, they shall be filed with the motion. The opposing party has
10 days after service to file opposing affidavits, but that period may be
extended for up to 20 days, either by the court for good cause or by the
parties' written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of
judgment, the court on its own initiative may order a hearing on its
proposed order for a new trial for any reason for which it might have
granted a new trial on motion of a party. After giving the parties notice
and opportunity to be heard, the court may grant a timely motion for a new
trial for a reason not stated in the motion. When granting a new trial on
its own initiative or for a reason not stated in a motion, the court shall
specify the grounds in its order.
(e) Hearing on Motion. When a motion for reconsideration or for a new
trial is filed, the judge by whom it is to be heard may on the judge's own
motion or on application determine:
(1) Time of Hearing. Whether the motion shall be heard before the entry
of judgment;
(2) Consolidation of Hearings. Whether the motion shall be heard before
or at the same time as the presentation of the findings and conclusions
and/or judgment, and the hearing on any other pending motion; and/or
(3) Nature of Hearing. Whether the motion or motions and presentation
shall be heard on oral argument or submitted on briefs, and if on briefs,
shall fix the time within which the briefs shall be served and filed.
(f) Statement of Reasons. In all cases where the trial court grants a
motion for a new trial, it shall, in the order granting the motion, state
whether the order is based upon the record or upon facts and circumstances
outside the record that cannot be made a part thereof. If the order is
based upon the record, the court shall give definite reasons of law and
facts for its order. If the order is based upon matters outside the record,
the court shall state the facts and circumstances upon which it relied.
(g) Reopening Judgment. On a motion for a new trial in an action tried
without a jury, the court may open the judgment if one has been entered,
take additional testimony, amend findings of fact and conclusions of law or
make new findings and conclusions, and direct the entry of a new judgment.
(h) Motion To Alter or Amend Judgment. A motion to alter or amend the
judgment shall be filed not later than 10 days after entry of the judgment.
(i) Alternative Motions, etc. Alternative motions for judgment as a
matter of law and for a new trial may be made in accordance with rule 50(c).
(j) Limit on Motions. If a motion for reconsideration, or for a new
trial, or for judgment as a matter of law, is made and heard before the
entry of the judgment, no further motion may be made without leave of the
court first obtained for good cause shown: (1) for a new trial, (2)
pursuant to sections (g), (h), and (i) of this rule, or (3) under rule 52(b).
[Amended effective July 1, 1980; September 1, 1984; September 1, 1989; September 1, 2005.]
RULE 60
RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders.
Such mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7.2(e).
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order;
(2) For erroneous proceedings against a minor or person of unsound
mind, when the condition of such defendant does not appear in the record,
nor the error in the proceedings;
(3) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(5) The judgment is void;
(6) The judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application;
(7) If the defendant was served by publication, relief may be granted
as prescribed in RCW 4.28.200;
(8) Death of one of the parties before the judgment in the action;
(9) Unavoidable casualty or misfortune preventing the party from
prosecuting or defending;
(10) Error in judgment shown by a minor, within 12 months after
arriving at full age; or
(11) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons (1),
(2) or (3) not more than 1 year after the judgment, order, or proceeding
was entered or taken. If the party entitled to relief is a minor or a
person of unsound mind, the motion shall be made within 1 year after the
disability ceases. A motion under this section (b) does not affect the
finality of the judgment or suspend its operation.
(c) Other Remedies. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment, order,
or proceeding.
(d) Writs Abolished--Procedure. Writs of coram nobis, coram vobis,
audita querela, and bills of review and bills in the nature of a bill of
review are abolished. The procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an
independent action.
(e) Procedure on Vacation of Judgment.
(1) Motion. Application shall be made by motion filed in the cause
stating the grounds upon which relief is asked, and supported by the
affidavit of the applicant or his attorney setting forth a concise
statement of the facts or errors upon which the motion is based, and if the
moving party be a defendant, the facts constituting a defense to the action
or proceeding.
(2) Notice. Upon the filing of the motion and affidavit, the court
shall enter an order fixing the time and place of the hearing thereof and
directing all parties to the action or proceeding who may be affected
thereby to appear and show cause why the relief asked for should not be
granted.
(3) Service. The motion, affidavit, and the order to show cause shall
be served upon all parties affected in the same manner as in the case of
summons in a civil action at such time before the date fixed for the
hearing as the order shall provide; but in case such service cannot be
made, the order shall be published in the manner and for such time as may
be ordered by the court, and in such case a copy of the motion, affidavit,
and order shall be mailed to such parties at their last known post office
address and a copy thereof served upon the attorneys of record of such
parties in such action or proceeding such time prior to the hearing as the
court may direct.
(4) Statutes. Except as modified by this rule, RCW 4.72.010-.090 shall
remain in full force and effect.
RULE 61
HARMLESS ERROR
(RESERVED)
RULE CR 62
STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a) Automatic Stays. Except as to a judgment of a district court filed with the superior court pursuant
to RCW 4.56.200, no execution shall issue upon a judgment nor shall proceedings be taken for its
enforcement until the expiration of 10 days after its entry. Upon the filing of a notice of appeal,
enforcement of judgment is stayed until the expiration of 14 days after entry of judgment. Unless
otherwise ordered by the trial court or appellate court, an interlocutory or final judgment in an action for an
injunction or in a receivership action, shall not be stayed during the period after its entry and until
appellate review is accepted or during the pendency of appellate review.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the
security of the adverse party as are proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment
made pursuant to rule 59, or of a motion for relief from a judgment or order made pursuant to rule 60, or of
a motion for judgment as a matter of law made pursuant to rule 50, or of a motion for amendment to the
findings or for additional findings made pursuant to rule 52(b).
(c) Injunction Pending appeal. [Rescinded.]
(d) Stay Upon Appeal. [Rescinded.]
(e) Stay in Favor of State. [Rescinded.)
(f) Other Stays. This rule does not limit the right of a party to a stay otherwise provided by statute or rule.
(g) Power of Supreme Court Not Limited. [Rescinded.]
(h) Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the
conditions stated in rule 54(b), the court may stay enforcement of that judgment until the entering of a
subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the
benefit thereof to the party in whose favor the judgment is entered.
[Amended effective July 1, 1976; January 1, 1977; September 1, 1990; September 1, 2005; January 8, 2013.]
RULE 63
JUDGES
(a) Powers. See rule 77.
(b) Disability of a Judge. If by reason of death, sickness, or other
disability, a judge before whom an action has been tried is unable to
perform the duties to be performed by the court under these rules after a
verdict is returned or findings of fact and conclusions of law are filed,
then any other judge regularly sitting in or assigned to the court in which
the action was tried may perform those duties; but if such other judge is
satisfied that he cannot perform those duties because he did not preside at
the trial or for any other reason, he may in his discretion grant a new
trial.
RULE 64
SEIZURE OF PERSON OR PROPERTY
At the commencement of and during the course of an action, all remedies
providing for seizure of person or property for the purpose of securing
satisfaction of the judgment ultimately to be entered in the action are
available under the circumstances and in the manner provided by the law
existing at the time the remedy is sought. The remedies thus available
include arrest, attachment, garnishment, replevin, sequestration, and other
corresponding or equivalent remedies, however designated and regardless of
whether the remedy is ancillary to an action or must be obtained by an
independent action.
RULE 65
INJUNCTIONS
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice to
the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after the
commencement of the hearing of an application for a preliminary injunction,
the court may order the trial of the action on the merits to be advanced
and consolidated with the hearing of the application. Even when this
consolidation is not ordered, any evidence received upon an application for
a preliminary injunction which would be admissible upon the trial on the
merits becomes part of the record on the trial and need not be repeated
upon the trial. This subsection shall be so construed and applied as to
save to the parties any rights they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary
restraining order may be granted without written or oral notice to the
adverse party or his attorney only if (1) it clearly appears from specific
facts shown by affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition, and (2) the
applicants attorney certifies to the court in writing the efforts, if any,
which have been made to give the notice and the reasons supporting his
claim that notice should not be required. Every temporary restraining order
granted without notice shall be endorsed with the date and hour of
issuance; shall be filed forthwith in the clerk's office and entered of
record; shall define the injury and state why it is irreparable and why the
order was granted without notice; and shall expire by its terms within such
time after entry, not to exceed 14 days, as the court fixes, unless within
the time so fixed the order, for good cause shown, is extended for a like
period or unless the party against whom the order is directed consents that
it may be extended for a longer period. The reasons for the extension shall
be entered of record. In case a temporary restraining order is granted
without notice, the motion for a preliminary injunction shall be set down
for hearing at the earliest possible time and takes precedence over all
matters except older matters of the same character; and when the motion
comes on for hearing the party who obtained the temporary restraining order
shall proceed with the application for a preliminary injunction and, if he
does not do so, the court shall dissolve the temporary restraining order.
On 2 days' notice to the party who obtained the temporary restraining order
without notice or on such shorter notice to that party as the court may
prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice require.
(c) Security. Except as otherwise provided by statute, no restraining
order or preliminary injunction shall issue except upon the giving of
security by the applicant, in such sum as the court deems proper, for the
payment of such costs and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined or restrained. No such
security shall be required of the United States or of an officer or agency
thereof. Pursuant to RCW 4.92.080 no security shall be required of the
State of Washington, municipal corporations or political subdivisions of
the State of Washington. The provisions of rule 65.1 apply to a surety upon
a bond or undertaking under this rule.
(d) Form and Scope. Every order granting an injunction and every
restraining order shall set forth the reasons for its issuance; shall be
specific in terms; shall describe in reasonable detail, and not by
reference to the complaint or other document, the act or acts sought to be
restrained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who receive actual
notice of the order by personal service or otherwise.
(e) Statutes. These rules are intended to supplement and not to modify
any statute prescribing the basis for obtaining injunctive relief. These
rules shall prevail over statutes if there are procedural conflicts.
RULE 65.1
SECURITY--PROCEEDINGS AGAINST SURETIES
Whenever these rules require or permit the giving of security by a
party, and security is given in the form of a bond or stipulation or other
undertaking with one or more sureties, each surety submits himself to the
jurisdiction of the court and irrevocably appoints the clerk of the court
as his agent upon whom any papers affecting his liability on the bond or
undertaking may be served. His liability may be enforced on motion without
the necessity of an independent action. The motion and such notice of the
motion as the court prescribes may be served on the clerk of the court, who
shall forthwith mail copies to the sureties if their addresses are known.
RULE CR 66
RECEIVERSHIP PROCEEDINGS
[RESERVED. See RCW ch 7.60.]
[Adopted effective July 1, 1967; amended effective September 1, 2006.]
RULE 67
DEPOSIT IN COURT
In an action in which any part of the relief sought is a judgment for a
sum of money or the disposition of a sum of money or the disposition of any
other thing capable of delivery, a party, upon notice to every other party,
and by leave of court, may deposit with the court all or any part of such
sum or thing, whether or not that party claims all or any part of the sum
or thing. The party making the deposit shall serve the order permitting
deposit on the clerk of the court. Money paid into court under this rule
shall be deposited and withdrawn in accordance with the provisions of RCW
4.44.480 through 4.44.500 or any like statute or rule.
RULE 68
OFFER OF JUDGMENT
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against him for the money or property or to the
effect specified in his offer, with costs then accrued. If within 10 days
after the service of the offer the adverse party serves written notice that
the offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and thereupon the court
shall enter judgment. An offer not accepted shall be deemed withdrawn and
evidence thereof is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree must pay the costs incurred after the
making of the offer. The fact that an offer is made but not accepted does
not preclude a subsequent offer. When the liability of one party to another
has been determined by verdict or order or judgment, but the amount or
extent of the liability remains to be determined by further proceedings,
the party adjudged liable may make an offer of judgment, which shall have
the same effect as an offer made before trial if it is served within a
reasonable time not less than 10 days prior to the commencement of hearings
to determine the amount or extent of liability.
RULE 69
EXECUTION
(a) Procedure. The procedure on execution, in proceedings supplementary
to and in aid of a judgment, and in proceedings on and in aid of execution
shall be in accordance with the practice and procedure of the State as
authorized in RCW 6.13, 6.15, 6.17, 6.19, 6.21, 6.23, 6.32, 6.36, and any
other applicable statutes.
(b) Supplemental Proceedings. In aid of the judgment or execution, the
judgment creditor or his successor in interest when that interest appears
of record, may examine any person, including the judgment debtor, in the
manner provided in these rules for taking depositions or in the manner
provided by RCW 6.32.
RULE 70
JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE
If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act and
the party fails to comply within the time specified, the court may direct
the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done has like effect as
if done by the party. On application of the party entitled to performance,
the clerk shall issue a writ of attachment or sequestration against the
property of the disobedient party to compel obedience to the judgment. The
court may also in proper cases adjudge the party in contempt. If real or
personal property is within the state, the court in lieu of directing a
conveyance thereof may enter a judgment divesting the title of any party
and vesting it in others and such judgment has the effect of a conveyance
executed in due form of law. When any order or judgment is for the delivery
of possession, the party in whose favor it is entered is entitled to a writ
of execution or assistance upon application to the clerk.
CR 70.1
APPEARANCE BY ATTORNEY
(a) Notice of Appearance. An attorney admitted to practice in
this state may appear for a party by serving a notice of
appearance.
(b) Notice of Limited Appearance. If specifically so stated in a
notice of limited appearance filed and served prior to or
simultaneous with the proceeding, an attorney’s role may be
limited to one or more individual proceedings in the action.
Service on an attorney who has made a limited appearance for a
party shall be valid (to the extent permitted by statute and rule
5(b)) only in connection with the specific proceedings for which
the attorney has appeared, including any hearing or trial at
which the attorney appeared and any subsequent motions for
presentation of orders. At the conclusion of such proceedings the
attorney’s role terminates without the necessity of leave of
court, upon the attorney filing notice of completion of limited
appearance which notice shall include the client information
required by rule 71(c)(1).
[Effective October 29, 2002.]
RULE 71
WITHDRAWAL BY ATTORNEY
(a) Withdrawal by Attorney. Service on an attorney who has appeared for
a party in a civil proceeding shall be valid to the extent permitted by
statute and rule 5(b) only until the attorney has withdrawn in the manner
provided in sections (b), (c), and (d). Nothing in this rule defines the
circumstances under which a withdrawal might be denied by the court.
(b) Withdrawal by Order. A court appointed attorney may not withdraw
without an order of the court. The client of the withdrawing attorney must
be given notice of the motion to withdraw and the date and place the motion
will be heard.
(c) Withdrawal by Notice. Except as provided in sections (b) and (d),
an attorney may withdraw by notice in the manner provided in this section.
(1) Notice of Intent To Withdraw. The attorney shall file and serve a
Notice of Intent To Withdraw on all other parties in the proceeding. The
notice shall specify a date when the attorney intends to withdraw, which
date shall be at least 10 days after the service of the Notice of Intent To
Withdraw. The notice shall include a statement that the withdrawal shall be
effective without order of court unless an objection to the withdrawal is
served upon the withdrawing attorney prior to the date set forth in the
notice. If notice is given before trial, the notice shall include the date
set for trial. The notice shall include the names and last known addresses
of the persons represented by the withdrawing attorney, unless disclosure
of the address would violate the Rules of Professional Conduct, in which
case the address may be omitted. If the address is omitted, the notice must
contain a statement that after the attorney withdraws, and so long as the
address of the withdrawing attorney's client remains undisclosed and no new
attorney is substituted, the client may be served by leaving papers with
the clerk of the court pursuant to rule 5(b)(1).
(2) Service on Client. Prior to service on other parties, the Notice of
Intent To Withdraw shall be served on the persons represented by the
withdrawing attorney or sent to them by certified mail, postage prepaid, to
their last known mailing addresses. Proof of service or mailing shall be
filed, except that the address of the withdrawing attorney's client may be
omitted under circumstances defined by subsection (c)(1) of this rule.
(3) Withdrawal Without Objection. The withdrawal shall be effective,
without order of court and without the service and filing of any additional
papers, on the date designated in the Notice of Intent To Withdraw, unless
a written objection to the withdrawal is served by a party on the
withdrawing attorney prior to the date specified as the day of withdrawal
in the Notice of Intent To Withdraw.
(4) Effect of Objection. If a timely written objection is served,
withdrawal may be obtained only by order of the court.
(d) Withdrawal and Substitution. Except as provided in section (b), an
attorney may withdraw if a new attorney is substituted by filing and
serving a Notice of Withdrawal and Substitution. The notice shall include a
statement of the date on which the withdrawal and substitution are
effective and shall include the name, address, Washington State Bar
Association membership number, and signature of the withdrawing attorney
and the substituted attorney. If an attorney changes firms or offices, but
another attorney in the previous firm or office will become counsel of
record, a Notice of Withdrawal and Substitution shall nevertheless be
filed.
9. APPEALS
(RULES 72-76)
(RESERVED)
RULE CR 77
SUPERIOR COURTS AND JUDICIAL OFFICERS
(a) Original Jurisdiction. (Reserved. See RCW 2.08.010.)
(b) Powers of Superior Courts.
(1) Powers of Court in Conduct of Judicial Proceedings. (Reserved. See RCW 2.28.010.)
(2) Punishment for Contempt. (Reserved. See RCW 2.28.020.)
(3) Implied Powers. (Reserved. See RCW 2.28.150.)
(c) Powers of Judicial Officers.
(1) Judges Distinguished From Court. (Reserved. See RCW 2.28.050.)
(2) Judicial Officers Defined--When Disqualified. (Reserved. See RCW 2.28.030.)
(3) Powers of Judicial Officers. (Reserved. See RCW 2.28.060.)
(4) Judicial Officer May Punish for Contempt. (Reserved. See RCW 2.28.070.)
(5) Powers of Judges of Supreme and Superior Courts. (Reserved. See RCW 2.28.080.)
(6) Powers of Inferior Judicial Officers. (Reserved. See RCW 2.28.090.)
(7) Powers of Judge in Counties of His District. (Reserved. See RCW 2.08.190.)
(8) Visiting Judges.
(A) Assignments.
(i) Visiting judges at direction of Governor. (Reserved. See RCW 2.08.140.)
(ii) Visiting judges at request of judge or judges. (Reserved. See RCW 2.08.140 and 2.08.150.)
(iii) Court administrator--make recommendations. (Reserved. See RCW 2.56.030(3).)
(iv) Duty of judges to comply with Chief Justices direction.
(Reserved. See RCW 2.56.040.)
(B) Powers. Whenever a visiting judge has heard or tried any case or
matter and has departed from the county, he may require the argument on any
posttrial motion to be submitted to him on briefs at such place within the
state as he may designate and he may sign findings of fact, conclusions of
law, judgments and posttrial orders anywhere within the state. See also RCW
2.08.140 and 2.08.150.
(9) Judges Pro Tempore. (Reserved. See RCW 2.08.180.)
(10) Change of Judge. (Reserved. See RCW 4.12.040 and 4.12.050.)
(11) Court May Fix Amount of Bond in Civil Actions. (Reserved. See RCW 4.44.470.)
(d) Superior Courts Always Open. The superior courts are courts of
record, and shall be always open, except on nonjudicial days.
(e) No Court on Legal Holidays--Exceptions. (Reserved. See RCW 2.28.100.)
(f) Sessions. The superior court shall hold regular and special
sessions at the county seats of the several counties at such times as the
judges may determine and at such other places within the county as are
designated by the judge or judges thereof with the approval of the chief
justice of the supreme court of this state and of the governing body of the
county. Special sessions, i.e., mental illness hearings, juvenile
hearings, and proceedings which are authorized to be held before a court
commissioner may be held at such times and places as the judges may authorize.
(g) Adjournments.
(1) Power. (Reserved. See RCW 2.28.120.)
(2) Automatic. (Reserved. See RCW 2.28.110.)
(3) Effect. (Reserved. See RCW 2.08.040.)
(h) (Reserved.)
(i) Sessions Where More Than One Judge Sits--Effect of Decrees, Orders,
etc. (Reserved. See RCW 2.08.160.)
(j) Trials and Hearings; Orders in Chambers. Except as otherwise
authorized by these rules or by statute, all trials upon the merits shall
be conducted in open court and so far as convenient in a regular courtroom.
All other acts or proceedings may be done or conducted by a judge in
chambers, without the attendance of the clerk or other court officials and
at any place either within or without the county; but no hearing, other
than one ex parte, shall be conducted outside the county in which the cause
or proceedings are pending without the consent of all parties affected thereby.
(k) Motion Day--Local Rules. Unless local conditions make it
impracticable, the superior court in each county shall establish regular
times and places, at intervals sufficiently frequent for the prompt
dispatch of business, at which motions requiring notice and hearing may be
heard and disposed of; but the judge at any time or place and on such
notice, if any, as he considers reasonable may make orders for the
advancement, conduct, and hearing of actions.
(l) Submission on Briefs. To expedite its business, the court may make
provision by rule or order for the submission and determination of motions
without oral hearing upon brief written statements of reasons in support and opposition.
(m) Stipulations. See rule 16.
(n) Seal of Court. (Reserved. See RCW 2.08.050.)
[Amended effective May 24, 1978; September 1, 1992; September 1, 2003.]
RULE 78
CLERKS
(a) Powers and Duties of Clerks. (Reserved. See RCW 2.32.050.)
(b) Office Hours. The clerk's office with the clerk or a deputy in
attendance shall be open during business hours on all days except
Saturdays, Sundays, and legal holidays.
(c) Orders by Clerk. All motions and applications in the clerk's office
for issuing mesne process, for issuing final process to enforce and execute
judgments, and for other proceedings which do not require allowance or
order of the court are grantable of course by the clerk; but his action may
be suspended or altered or rescinded by the court upon cause shown.
(d) Filing of Depositions. Upon the filing of a deposition transcript
in any case pursuant to rule 5(i), the clerk shall forthwith endorse the
date of the filing upon the envelope, and shall enter the same upon the
case history docket.
(e) Entry of Judgments and Costs. The clerk shall enter judgment or
decree pursuant to the provisions of rule 58 and the same shall then be
entered for the sum found due or the relief awarded, with costs and
disbursements, if any, to be taxed. Entry of judgment shall not be delayed
for the taxing of costs. If no cost bill is filed by the party to whom
costs are awarded within 10 days after the entry of the judgment or decree,
the clerk shall proceed to tax the following costs and disbursements,
namely:
(1) The statutory attorney fee;
(2) The clerk's fee; and
(3) The sheriff's fee.
If a cost bill is filed, the clerk shall enter as the amount to be
recovered the amount claimed in such cost bill, and no motion to retax
costs shall be considered unless the same be filed within 6 days after the
filing of the cost bill.
For purposes of this subsection (e), "cost bill" also includes affidavit
detailing disbursements.
(f) Bonds. The clerk shall at once upon the filing of a bond (except
bond for costs) enter the same at large upon the journal. The clerk shall
endorse upon every affidavit or undertaking filed to procure a writ of
attachment, the day, hour, and minute of filing thereof.
[Amended effective September 1, 1988; September 1, 2007.]
RULE 79
BOOKS AND RECORDS KEPT BY THE CLERK
(a) Civil Docket. (Reserved.)
(b) Civil Judgments and Orders.
(1) Generally. (Reserved.)
(2) Entry of Judgment in Journal. (Reserved. See RCW 4.64.030.)
(3) Judgment Roll. (Reserved. See RCW 4.64.040.)
(4) Identification of Judgment Roll. (Reserved. See RCW 4.64.050.)
(5) Execution Docket. (Reserved. See RCW 4.64.060.)
(6) Entry of Verdict in Execution Docket. (Reserved. See RCW 4.64.020.)
(7) Entries in Execution Docket. (Reserved. See RCW 4.64.080.)
(8) Transcript of Justice Docket. (Reserved. See RCW 4.64.110.)
(9) Entry of Abstract or Transcript of Judgment. (Reserved. See RCW
4.64.120.)
(10) Abstract of Judgment. (Reserved. See RCW 4.64.090.)
(11) Abstract of Verdict--Cessation of Lien. (Reserved. See RCW
4.64.100.)
(c) Indices; Calendars. (Reserved.)
(d) Other Books and Records of Clerk. (Reserved.)
(e) Destruction of Records. (Reserved. See RCW 36.23.065 and GR 15.)
(f) List of Pending Decisions. The clerk of each county shall maintain
a permanent, public record showing each case submitted to a judge and not
yet decided. Said list shall clearly show what, if any, further action is
to be taken by any party or counsel and when said action should be taken.
Said list shall be called to the attention of every judge in said county on
the first Monday of each calendar month. Any case which shall have been
submitted to any visiting judge and not yet decided shall be called to the
attention of such visiting judge by mail on said dates.
RULE 80
COURT REPORTERS
(a) (Reserved.)
(b) Electronic Recording. In any civil or criminal proceedings,
electronic or mechanical recording devices approved by the Administrator
for the Courts may be used to record oral testimony and other oral
proceedings in lieu of or supplementary to causing shorthand notes thereof
to be taken. In all matters the use of such devices shall rest within the
sole discretion of the court.
(c) Recording Proceedings in Superior Court by Means of Videotape. All
superior courts that elect to use video equipment to record proceedings
shall comply with courtroom procedures published by the Office of the
Administrator for the Courts.
RULE 81
APPLICABILITY IN GENERAL
(a) To What Proceedings Applicable. Except where inconsistent with
rules or statutes applicable to special proceedings, these rules shall
govern all civil proceedings. Where statutes relating to special
proceedings provide for procedure under former statutes applicable
generally to civil actions, the procedure shall be governed by these rules.
(b) Conflicting Statutes and Rules. Subject to the provisions of
section (a) of this rule, these rules supersede all procedural statutes and
other rules that may be in conflict.
RULE 82
VENUE
(a) Nonresident. An action against a nonresident of this state may be
brought:
(1) In any county in which service of process may be had; or
(2) In a county in which the acts, or any of them, were done which gave
rise to service under RCW 4.28.180 and 4.28.185; or
(3) In the county in which the plaintiffs, or any of them, reside.
(b) Request--Waiver. If an action is brought in the wrong county, the
action may nevertheless be tried therein unless the defendant, pursuant to
the provisions of rule 12, requests that the trial be held in the proper
county and files an affidavit of merits.
(c) Default. See rule 55(c). No order of default shall be entered if it
clearly appears to the court from the papers on file that the action was
brought in an improper county, except as provided in rule 55(c)(2)(a) or
(b).
(d) Change of Venue--Fees. Any fees or costs required to be paid by a
party pursuant to RCW 4.12.090 shall be to the clerk of the county from
which the case is being transferred by check or money order made payable to
the clerk of the county to which the case is being transferred.
RULE 82 .5
TRIBAL COURT JURISDICTION
(a) Indian Tribal Court; Exclusive Jurisdiction. Where an action is
brought in the superior court of any county of this state, and where, under
the Laws of the United States, exclusive jurisdiction over the matter in
controversy has been granted or reserved to an Indian tribal court of a
federally recognized Indian tribe, the superior court shall, upon motion of
a party or upon its own motion, dismiss such action pursuant to CR
12(b)(1), unless transfer is required under federal law.
(b) Indian Tribal Court; Concurrent Jurisdiction. Where an action is
brought in the superior court of any county of this state, and where, under
the Laws of the United States, concurrent jurisdiction over the matter in
controversy has been granted or reserved to an Indian tribal court of a
federally recognized Indian tribe, the superior court may, if the interests
of justice require, cause such action to be transferred to the appropriate
Indian tribal court. In making such determination, the superior court shall
consider, among other things, the nature of the action, the interests and
identities of the parties, the convenience of the parties and witnesses,
whether state or tribal law will apply to the matter in controversy, and
the remedy available in such Indian tribal court.
(c) Enforcement of Indian Tribal Court Orders, Judgments or Decrees.
The superior courts of the State of Washington shall recognize, implement
and enforce the orders, judgments and decrees of Indian tribal courts in
matters in which either the exclusive or concurrent jurisdiction has been
granted or reserved to an Indian tribal court of a federally recognized
tribe under the Laws of the United States, unless the superior court finds
the tribal court that rendered the order, judgment or decree (1) lacked
jurisdiction over a party or the subject matter, (2) denied due process as
provided by the Indian Civil Rights Act of 1968, or (3) does not
reciprocally provide for recognition and implementation of orders,
judgments and decrees of the superior courts of the State of Washington.
GENERAL CIVIL RULE 83
LOCAL RULES OF COURT
(a) Adoption. Each court by action of a majority of the
judges may from time to time make and amend local rules governing
its practice not inconsistent with these rules. Local rules
shall be numbered and indexed in a manner consistent with the
numbering and index system for the Civil Rules.
(b) Filing with the Administrator for the Courts. Local
rules and amendments become effective only after they are filed
with the state Administrator for the Courts in accordance with GR 7.
RULE 84
FORMS
(RESERVED)
RULE 85
TITLE OF RULES
These rules shall be known and cited as the Superior Court Civil Rules.
CR is the official abbreviation.
RULE 86
EFFECTIVE DATES
Generally--Pending Actions. These rules and amendments promulgated
pursuant to authority granted to the Supreme Court shall govern all
proceedings in actions after they take effect, and also all further
proceedings in actions pending on their effective dates, except to the
extent that in the opinion of the superior court, expressed by its order,
the application of rules in a particular action pending when the rules take
effect would not be feasible or would work injustice, in which event the
procedure existing at the time the action was brought applies.
SUPERIOR COURT
MANDATORY ARBITRATION RULES (MAR)
TABLE OF RULES
1. SCOPE AND PURPOSE OF RULES
Rule
1.1 Application of Rules
1.2 Matters Subject to Arbitration
1.3 Relationship to Superior Court Jurisdiction and Other Rules
2. TRANSFER TO ARBITRATION AND ASSIGNMENT
OF ARBITRATOR
2.1 Transfer to Arbitration
2.2 Court May Determine Arbitrability
2.3 Assignment to Arbitrator
3. ARBITRATORS
3.1 Qualifications
3.2 Authority of Arbitrators
4. PROCEDURES AFTER ASSIGNMENT
4.1 Restrictions on Communication Between Arbitrator and Parties
4.2 Discovery
4.3 Subpoena
5. HEARING
5.1 Notice of Hearing
5.2 Prehearing Statement of Proof
5.3 Conduct of Hearing--Witnesses--Rules of Evidence
5.4 Absence of Party at Hearing
6. AWARD
6.1 Form and Content of Award
6.2 Filing of Award
6.3 Judgment on Award
6.4 Costs and Attorney Fees
7. TRIAL DE NOVO
7.1 Request for Trial de Novo
7.2 Procedure After Request for Trial de Novo
7.3 Costs and Attorney Fees
8. GENERAL PROVISIONS
8.1 Stipulations
8.2 Local Rules
8.3 Effective Date
8.4 Title and Citation
8.5 Status of Comments
RULE 1.1
APPLICATION OF RULES
These arbitration rules apply to mandatory arbitration of civil actions
under RCW 7.06. These rules do not apply to arbitration by private
agreement or to arbitration under other statutes, except by stipulation
under rule 8.1.
RULE 1.2
MATTERS SUBJECT TO ARBITRATION
A civil action, other than an appeal from a court of limited
jurisdiction, is subject to arbitration under these rules if the action is
at issue in a superior court in a county which has authorized mandatory
arbitration under RCW 7.06, if (1) the action is subject to mandatory
arbitration as provided in RCW 7.06, (2) all parties, for purposes of
arbitration only, waive claims in excess of the amount authorized by RCW
7.06, exclusive of attorney fees, interest and costs, or (3) the parties
have stipulated to arbitration pursuant to rule 8.1.
RULE 1.3
RELATIONSHIP TO SUPERIOR COURT JURISDICTION
AND OTHER RULES
(a) Superior Court Jurisdiction. A case filed in the superior court
remains under the jurisdiction of the superior court in all stages of the
proceeding, including arbitration. Except for the authority expressly given
to the arbitrator by these rules, all issues shall be determined by the
court.
(b) Which Rules Apply.
(1) Generally. Until a case is assigned to the arbitrator under rule
2.3, the rules of civil procedure apply. After a case is assigned to the
arbitrator, these arbitration rules apply except where an arbitration rule
states that a civil rule applies.
(2) Service. After a case is assigned to an arbitrator, all pleadings
and other papers shall be served in accordance with CR 5 and filed with the
arbitrator.
(3) Time. Time shall be computed in accordance with CR 6(a) and (e).
(4) Voluntary Dismissal. The arbitrator shall have the power to dismiss
an action, under the same conditions and with the same effect as set forth
in CR 41(a), at any time prior to the filing of an award.
RULE 2.1
TRANSFER TO ARBITRATION
The point at which a case is transferred to arbitration and the
procedures for accomplishing the transfer to an arbitration calendar shall
be established by local rule adopted in accordance with rule 8.2.
RULE 2.2
COURT MAY DETERMINE ARBITRABILITY
(a) Generally. The court may, on its own motion or on motion of a
party, determine whether a case is actually subject to arbitration under
RCW 7.06.020 and rule 1.2 and may accordingly order a case transferred to
or from the arbitration calendar. Only in extraordinary circumstances after
a case has been assigned to an arbitrator under rule 2.3 will the court
order a case returned from the arbitration calendar to the trial calendar.
(b) Effect on Right To Appeal. If a party asserts a claim which
disqualifies a case for arbitration but the court nevertheless orders a
transfer to arbitration under section (a), any party is deemed aggrieved
under rule 7.1 if the arbitrator awards less than the party's original
claim.
RULE 2.3
ASSIGNMENT TO ARBITRATOR
(a) Generally. The parties may select an arbitrator by stipulation. If
an arbitrator is not chosen by stipulation within 14 days after a case has
been placed on the arbitration calendar, the court shall promptly select an
arbitrator and notify the arbitrator and the parties of the assignment. The
case is deemed assigned for purposes of rule 1.3 upon the final selection
of the arbitrator under this rule.
(b) Communication With Potential Arbitrator Restricted. The
restrictions on communication defined by rule 4.1 apply to communication
with a person under consideration as a possible arbitrator in a case.
MAR 3.1
QUALIFICATIONS
Unless otherwise ordered or stipulated, an arbitrator must be a member of
the Washington State Bar Association who has been admitted to the Bar for a
minimum of 5 years, or who is a retired judge. The parties may stipulate to a
nonlawyer arbitrator.
To qualify as an arbitrator, a person must sign and file an oath of office,
either to serve in a particular case, or as a member of a panel of arbitrators.
The court is authorized to remove an individual from a list of qualified
arbitrators for good cause.
[Effective July 1, 1980. Amended effective September 1, 2008.]
RULE MAR 3.2
AUTHORITY OF ARBITRATORS
(a) Authority of Arbitrator. An arbitrator has the authority to:
(1) Decide procedural issues arising before or during the arbitration
hearing, except issues relating to the qualifications of an arbitrator;
(2) Invite, with reasonable notice, the parties to submit trial briefs;
(3) Examine any site or object relevant to the case;
(4) Issue a subpoena under rule 4.3;
(5) Administer oaths or affirmations to witnesses;
(6) Rule on the admissibility of evidence under rule 5.3;
(7) Determine the facts, decide the law, and make an award;
(8) Award costs and attorney fees as authorized by law; and
(9) Perform other acts as authorized by these rules or local rules adopted
and filed under rule 8.2.
(b) Authority of the Court. The court shall decide:
(1) Motions for involuntary dismissal, motions to change or add parties to
the case, and motions for summary judgment, and
(2) Issues relating to costs and attorney fees if those issues cannot
otherwise be decided by the arbitrator.
[Amended effective September 1, 1989; September 1, 1994; September 1, 2011.]
RULE MAR 4.1
RESTRICTIONS ON COMMUNICATION BETWEEN
ARBITRATOR AND PARTIES
No disclosure of any offers of settlement made by any party
shall be made to the arbitrator prior to the announcement of the
award. Neither counsel nor a party may communicate with the
arbitrator regarding the merits of the case except in the
presence of, or on reasonable notice to, all other parties.
[Effective July 1, 1980; amended effective September 1, 2001.]
RULE MAR 4.2
DISCOVERY
After the assignment of a case to the arbitrator, a party may demand a
specification of damages under RCW 4.28.360, may request from the arbitrator an
examination under CR 35, may request admissions from a party under CR 36, and
may take the deposition of another party, unless the arbitrator orders
otherwise. No additional discovery shall be allowed, except as the parties may
stipulate or as the arbitrator may order. The arbitrator will allow discovery
only when reasonably necessary. The conference requirements of CR 26(i) shall
not apply to motions to the arbitrator to allow additional discovery under this rule.
[Effective July 1, 1980; Amended September 1, 2009]
RULE 4.3
SUBPOENA
In accordance with CR 45, a lawyer of record or the arbitrator may
issue a subpoena for the attendance of a witness at the arbitration hearing
or for the production of documentary evidence at the hearing. A subpoena
for discovery purposes may be issued only with the permission of the
arbitrator or by stipulation.
RULE 5.1
NOTICE OF HEARING
The arbitrator shall set the time, date, and place of the hearing and
shall give reasonable notice of the hearing date to the parties. Except by
stipulation or for good cause shown, the hearing shall be scheduled to take
place not sooner than 21 days, nor later than 63 days, from the date of the
assignment of the case to the arbitrator. The hearing shall take place in
appropriate facilities provided or authorized by the court.
RULE 5.2
PREHEARING STATEMENT OF PROOF
At least 14 days prior to the date of the arbitration hearing, each
party shall file with the arbitrator and serve upon all other parties a
statement containing a list of witnesses whom the party intends to call at
the arbitration hearing and a list of exhibits and documentary evidence,
including but not limited to evidence authorized under rule 5.3(d). The
statement shall contain a brief description of the matters about which each
witness will be called to testify, and whether that testimony is
anticipated to be provided in writing, in person, or by telephone. Each
party, upon request, shall make the exhibits and other documentary evidence
available for inspection by other parties. A party failing to comply with
this rule or failing to comply with a discovery order may not present at
the hearing the witness, exhibit, or documentary evidence required to be
disclosed or made available, except with the permission of the arbitrator.
RULE 5.3
CONDUCT OF HEARING--WITNESSES--RULES
OF EVIDENCE
(a) Witnesses. The arbitrator shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the facts, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment. In the discretion
of the arbitrator, a witness may testify by telephone. A witness shall be
placed under oath or affirmation by the arbitrator prior to presenting
testimony, a violation of which oath shall be deemed a contempt of court in
addition to any other penalties that may be provided by law. The arbitrator
may question a witness.
(b) Recording. The hearing may be recorded electronically or otherwise
by any party or the arbitrator.
(c) Rules of Evidence, Generally. The extent to which the Rules of
Evidence will be applied shall be determined in the exercise of discretion
of the arbitrator. The Rules of Evidence, to the extent determined by the
arbitrator to be applicable, should be liberally construed in order to
promote justice. The parties should stipulate to the admission of evidence
when there is no genuine issue as to its relevance or authenticity.
(d) Certain Documents Presumed Admissible. The documents listed below,
if relevant, are presumed admissible at an arbitration hearing, but only if
(1) the party offering the document serves on all parties a notice,
accompanied by a copy of the document and the name, address and telephone
number of its author or maker, at least 14 days prior to the hearing in
accordance with MAR 5.2; and (2) the party offering the document similarly
furnishes all other related documents from the same author or maker. This
rule does not restrict argument or proof relating to the weight of the
evidence admitted, nor does it restrict the arbitrator's authority to
determine the weight of the evidence after hearing all of the evidence and
the arguments of opposing parties. The documents presumed admissible under
this rule are:
(1) A bill, report, chart, or record of a hospital, doctor, dentist,
registered nurse, licensed practical nurse, physical therapist,
psychologist or other health care provider, on a letterhead or billhead;
(2) A bill for drugs, medical appliances or other related expenses on a
letterhead or billhead;
(3) A bill for, or an estimate of, property damage on a letterhead or
billhead. In the case of an estimate, the party intending to offer the
estimate shall forward with the notice to the adverse party a statement
indicating whether or not the property was repaired, and if it was, whether
the estimated repairs were made in full or in part, attaching a copy of the
receipted bill showing the items of repair and the amount paid;
(4) A police, weather, wage loss, or traffic signal report, or standard
United States government life expectancy table to the extent it is
admissible under the Rules of Evidence, but without the need for formal
proof of authentication or identification;
(5) A photograph, videotape, x-ray, drawing, map, blueprint or similar
documentary evidence, to the extent it is admissible under the Rules of
Evidence, but without the need for formal proof of authentication or
identification;
(6) The written statement of any other witness, including the written
report of an expert witness, and including a statement of opinion which the
witness would be allowed to express if testifying in person, if it is made
by affidavit or by declaration under penalty of perjury;
(7) A document not specifically covered by any of the foregoing
provisions but having equivalent circumstantial guaranties of
trustworthiness, the admission of which would serve the interests of
justice.
(e) Opposing Party May Subpoena Author or Maker as Witness. Any other
party may subpoena the author or maker of a document or videotape
admissible under this rule, at that party's expense, and examine the author
or maker as if under cross examination.
RULE 5.4
ABSENCE OF PARTY AT HEARING
The arbitration hearing may proceed, and an award may be made, in the
absence of any party who after due notice fails to participate or to obtain
a continuance. If a defendant is absent, the arbitrator shall require the
plaintiff to submit the evidence required for the making of an award. In a
case involving more than one defendant, the absence of a defendant does not
preclude the arbitrator from assessing as part of the award damages against
the defendant or defendants who are absent. The arbitrator, for good cause
shown, may allow an absent party an opportunity to appear at a subsequent
hearing before making an award. A party who fails to participate without
good cause waives the right to a trial de novo.
RULE 6.1
FORM AND CONTENT OF AWARD
The award shall be in writing and signed by the arbitrator. The
arbitrator shall determine all issues raised by the pleadings, including a
determination of any damages. Findings of fact and conclusions of law are
not required.
RULE MAR 6.2
FILING OF AWARD
Filing and Service of Award. Within 14 days after the conclusion of the
arbitration hearing, the arbitrator shall file the award with the clerk of the
superior court, with proof of service upon each party. On the arbitrators
application in cases of unusual length or complexity, the arbitrator may apply
for and the court may allow up to 14 additional days for the filing and service
of the award. If the arbitrator fails to timely file and serve the award and
proof of service, a party may, after notice to the arbitrator, file a motion
with the court for an order directing the arbitrator to do so by a date
certain. Late filing shall not invalidate the award. The arbitrator may file
with the court and serve upon the parties an amended award to correct an
obvious error made in stating the award if done within the time for filing an
award or upon application to the superior court to amend.
[Amended effective September 1, 1993; September 1, 1994; September 1, 2011.]
RULE MAR 6.3
JUDGMENT ON AWARD
Judgment. If within the 20-day period specified in rule 7.1(a) no party has
properly sought a trial de novo, the prevailing party on notice as required by
CR 54(f) shall present to the court a judgment on the award of arbitration for
entry as the final judgment. A judgment so entered is subject to all provisions
of law relating to judgments in civil actions, but it is not subject to
appellate review and it may not be attacked or set aside except by a motion to
vacate under CR 60.
[Amended effective September 1, 1994; September 1, 2011.]
RULE MAR 6.4
COSTS AND ATTORNEY FEES
(a) Request. Any request for costs and attorney fees shall be filed with
the arbitrator and served upon all other parties no later than seven days after
receipt of the award. Any party failing to timely file and serve such a
request is deemed to have waived the right to an award of costs and attorney
fees, unless a request for a trial de novo is filed.
(b) Response. Any response to the request for costs and attorney fees
shall be filed with the arbitrator and served upon all other parties within
seven days after service of the request.
(c) Hearing. The arbitrator has discretion to hold a hearing on the
request for costs and attorney fees.
(d) Decision. Within 14 days after the service of the request for costs
and attorney fees, the arbitrator shall file an amended award granting the
request in whole or in part, or a denial of costs and attorney fees, with the
clerk of the superior court, with proof of service upon each party. If the
arbitrator fails to timely file and serve the amended award or denial and proof
of service, a party may, after notice to the arbitrator, file a motion with the
court for an order directing the arbitrator to do so by a date certain. Late
filing shall not invalidate the decision.
[Effective July 1, 1980; amended effective September 1, 2011.]
RULE MAR 7.1
REQUEST FOR TRIAL DE NOVO
(a) Service and Filing. Any aggrieved party not having waived the right
to appeal may request a trial de novo in the superior. Any request for a trial
de novo must be filed with the clerk and served, in accordance with CR 5, upon
all other parties appearing in the case within 20 days after the arbitrator
files proof of service of the later of: (1) the award or (2) a decision on a
timely request for costs or attorney fees. A request for a trial de novo is
timely filed or served if it is filed or served after the award is announced
but before the 20-day period begins to run. The 20-day period within which to
request a trial de novo may not be extended.
(b) Form. The request for a trial de novo shall not refer to the amount
of the award, including any award of costs or attorney fees, and shall be
substantially in the form set forth below:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
_______________, ) No. ______
Plaintiff, )
v. ) REQUEST FOR
_______________, ) TRIAL DE NOVO
Defendant. )
TO: The clerk of the court and all parties:
Please take notice that (name of aggrieved party) requests a trial de novo
from the award filed ____(date)_____.
Dated: _________________________ ___________________________________
(Name of attorney
for aggrieved party)
(c) Proof of Service. The party filing and serving the request for a
trial de novo shall file proof of service with the court. Failure to file
proof of service within the 20-day period shall not void the request for a
trial de novo.
(d) Calendar. When a trial de novo is requested as provided in section (a),
the case shall be transferred from the arbitration calendar in accordance with
rule 8.2 in a manner established by local rule.
[Amended effective September 1, 1989; September 1, 2001; September 1, 2011.]
RULE 7.2
PROCEDURE AFTER REQUEST FOR TRIAL DE NOVO
(a) Sealing. The clerk shall seal any award if a trial de novo is
requested.
(b) No Reference to Arbitration; Use of Testimony.
(1) The trial de novo shall be conducted as though no arbitration
proceeding had occurred. No reference shall be made to the arbitration
award, in any pleading, brief, or other written or oral statement to the
trial court or jury either before or during the trial, nor, in a jury
trial, shall the jury be informed that there has been an arbitration
proceeding.
(2) Testimony given during the arbitration proceeding is admissible in
subsequent proceedings to the extent allowed by the Rules of Evidence,
except that the testimony shall not be identified as having been given in
an arbitration proceeding.
(c) Relief Sought. The relief sought at a trial de novo shall not be
restricted by RCW 7.06, local arbitration rule, or any prior waiver or
stipulation made for purposes of arbitration.
(d) Arbitrator as Witness. The arbitrator shall not be called as a
witness at the trial de novo.
RULE 7.3
COSTS AND ATTORNEY FEES
The court shall assess costs and reasonable attorney fees against a
party who appeals the award and fails to improve the party's position on
the trial de novo. The court may assess costs and reasonable attorney fees
against a party who voluntarily withdraws a request for a trial de novo.
"Costs" means those costs provided for by statute or court rule. Only those
costs and reasonable attorney fees incurred after a request for a trial de
novo is filed may be assessed under this rule.
RULE 8.1
STIPULATIONS
(a) Generally. No agreement or consent between parties or lawyers
relating to the conduct of the arbitration proceedings, the purport of
which is disputed, will be regarded by the arbitrator unless the agreement
or consent is made at the arbitration hearing, or unless the agreement or
consent is in writing and signed by the lawyers or parties denying the
same.
(b) To Arbitrate Other Cases. The parties may stipulate to enter into
arbitration under these rules in a civil matter that would not otherwise be
subject to arbitration under rule 1.2. A case transferred to arbitration by
stipulation is subject to the arbitration rules in their entirety, except
as otherwise agreed under section (a).
RULE 8.2
LOCAL RULES
The arbitration rules may be supplemented by local superior court rules
adopted and filed in accordance with CR 83.
RULE 8.3
EFFECTIVE DATE
These rules shall take effect on July 1, 1980, and shall apply to all
cases in which trial has not commenced on the merits by July 1, 1980.
RULE 8.4
TITLE AND CITATION
These rules shall be known and cited as the Superior Court Mandatory
Arbitration Rules. MAR is the official abbreviation.
RULE 8.5
STATUS OF COMMENTS
The comments to these rules have not been adopted by the Supreme Court.
The comments are solely those of the Judicial Council.
EXPLANATION
Format. When adopting the format of the rule numbering and subdivision
organization of the federal rules it was necessary to remove all
miscellaneous rules applicable to special proceedings. This had been
partially accomplished because many of these miscellaneous rules had been
assigned rule numbers between 87 and 99. These rule numbers continue to be
reserved for this purpose and all the miscellaneous rules relating to
special proceedings, except criminal, are now renumbered in this series.
Other than the addition of subheadings, no major revisions have been
undertaken in the Special Proceedings Rules.
Statutes. No attempt has been made to cross-reference applicable
statutes.
Abbreviations. These Superior Court Special Proceedings Rules may be
cited as SPR.
RULE 90.04W
ATTACHMENTS--DUTIES OF THE SHERIFF
Immediately upon the receipt of a writ of attachment, the sheriff or
other officer shall endorse thereon, in ink, the day, hour, and minute when
the same first came into the officers hands. When there are several
attachments against the same defendant, they shall be executed in the order
in which they were received by the sheriff.
RULE 91.04W
GARNISHMENTS--SERVICE, OBJECTIONS, ETC.
(RESCINDED)
RULE 93.04W
DISPOSITION OF REPORTS--ADOPTIONS
In an adoption proceeding, any report prepared pursuant to RCW 26.33
shall be open to inspection by the adoptive parents and the attorney for
the adoptive parents. Such report at the close of the entire proceeding
shall be sealed in accordance with RCW 26.33.330.
RULE 98.08W
ESTATES--SETTLEMENT OF CLAIMS BY GUARDIAN,
RECEIVER, OR PERSONAL REPRESENTATIVE
In all actions or proceedings in which a guardian, receiver, personal
representative, or other person having charge of settlement of any estate,
applies to the court for an order allowing a claim to be compromised and
settled for less than its face value, the court shall appoint a day not
less than 5 days after such application for hearing the same, unless for
good cause shown less time should intervene, and direct the giving of such
notice as may be deemed proper.
RULE 98.10W
ESTATES--RECEIVERSHIP--REPORTS
All reports of receivers which involve an accounting shall be filed at
least 10 days before the hearing. On filing and presentation of such report
the court will appoint a time for hearing the same, and will direct such
notice to be given as will most likely advise all interested parties of
such hearing.
RULE 98.12W
ESTATES GENERALLY--FEES
Before compensation shall be allowed to any personal representative,
guardian, or attorney in connection with any probate matter or proceeding,
or to any receiver or an attorney for a receiver, and before any agreement
therefor shall be approved, the amount of compensation claimed shall be
definitely and clearly set forth in the application therefor, and all
parties interested in the matter shall be given notice of the amount
claimed in such manner as shall be fixed by statute, or, in the absence of
statute, as shall be directed by the court; unless such application be
filed with or made a part of a report or final account of such personal
representative, guardian, receiver, or attorney.
SPR RULE 98.16W
ESTATES--GUARDIANSHIP--SETTLEMENT
OF CLAIMS OF MINORS AND INCAPACITATED PERSONS
(a) Approval of Settlement Required. In every settlement of a claim,
whether or not filed in court, involving the beneficial interest of an
unemancipated minor or a person determined to be disabled or incapacitated
under RCW 11.88, the court shall determine the adequacy of the proposed
settlement on behalf of such affected person and reject or approve it. If
a suit for recovery on behalf of the affected person has been previously
maintained, then the petition shall be filed in that county, or if no such
suit exists, then in the county where the affected person resides, unless
either court orders otherwise.
(b) Petition. The petition for approval of settlement on behalf of the
affected person shall contain, as a minimum and to the full extent known:
(1) the affected person's full name and date of birth;
(2) the general identification and relationship of others having
claims or potential claims arising from the same matters and identity of their counsel;
(3) the description and amount of all liens, subrogation or
reimbursement claims, fees, bills, costs or expenses connected with the
affected person's claim;
(4) the description and amount of all liens, reimbursements, fees,
costs or expenses requested to be paid from the settlement funds to be
deposited with the court (or the maximum claimed for reimbursement if any
item is being disputed or negotiated further), including a columnar
listing of all amounts to be received, all amounts to be paid or the
maximum claimed and concluding with the net amount of money or other
property remaining for the affected person.
(c) Appointment, Role and Termination of the Settlement Guardian ad
Litem; Exceptions to Appointment.
(1) Upon filing of the petition, the court shall appoint a Settlement
Guardian ad Litem to assist the court in determining the adequacy of the
proposed settlement. The Settlement Guardian ad Litem shall conduct an
investigation and file a written report with the court with a
recommendation regarding approval and final disposition within 45 days of
appointment or such other time as the court may order. The court, if
appropriate under existing law, may order that all or part of the report
and contents shall be confidential or sealed. Upon filing of the report
and appearing at hearings as may be required, the Settlement Guardian ad
Litem is exonerated from further duties unless otherwise ordered by the court.
(2) The court may dispense with the appointment of the Settlement
Guardian ad Litem if by written finding the court determines a guardian ad
litem, a guardian, or limited guardian has been previously appointed or if
the court affirmatively finds that the affected person is represented by
independent counsel, so long as the guardian ad litem, guardian, limited
guardian, or independent counsel has the qualifications which would be
required for a Settlement Guardian ad Litem and neither has nor represents
interests in conflict with those of the affected person which would not be
allowed for a Settlement guardian ad Litem. Independent counsel's fee
interest in the claim, if allowed by the Rules of Professional Conduct, is
not a disqualifying interest. If a Settlement Guardian ad Litem is not
required, the independent counsel, guardian ad litem, guardian or limited
guardian shall file the report.
(d) Qualifications of Settlement Guardian ad Litem. The Settlement
Guardian ad Litem shall be an attorney with at least five years of
pertinent legal experience and such other qualifications as the court may
require. The Settlement Guardian ad Litem shall neither have nor represent
any interest in conflict with the affected person, including but not
limited to the conflicting interests of parents or others legally
responsible for medical care of the affected person.
(e) Report of Settlement Guardian ad Litem. The report of the
Settlement Guardian ad Litem or other person authorized above shall
include a description, in depth appropriate to the magnitude of injuries
and settlement, of at least:
(1) the background of the appointment and qualifications of the writer
including any relationship with involved parents, guardians, insurers or attorneys;
(2) a description of the investigation conducted, the persons
interviewed and the documents reviewed, if any;
(3) a description of the incident and the affected person's potential
legal claims;
(4) a description of the affected person's injuries, general
treatment, diagnosis and prognosis attaching a recent supporting medical
report or office record;
(5) a discussion of the damages potentially recoverable including
identification of all special damages;
(6) a discussion of the potential liability of all persons and entities;
(7) an identification of other insurance or collateral sources for
payment of any bills or expenses;
(8) A discussion and recommendation regarding any lien, subrogation or
reimbursement claims, including any suggested retention in an attorney's
trust account of the full amount claimed until the final resolution of such claim;
(9) an identification of all other claims, specifically including any
claims held by other family members;
(10) a discussion of any proposed apportionment of claim proceeds
among family members or unrelated claimants, if any;
(11) a discussion and recommendation regarding the proposed settlement
form, documents and amounts;
(12) a discussion and recommendation regarding the expenses and fees
for which payment is requested;
(13) a discussion and recommendation regarding the requested
disposition of net proceeds;
(14) a statement of time spent, expenditures made and the fees and
costs requested by the Settlement Guardian ad Litem;
(15) a discussion and recommendation regarding the presence of the
affected person and the Settlement Guardian ad Litem at any court hearings
on the Petition;
(16) a statement as to whether the Petition has been submitted for
approval in any other jurisdiction.
(f) Hearing. At the time the petition for approval of the settlement
is heard, the allowance and taxation of all fees, costs, and other charges
incident to the settlement shall be considered and disposed of by the
court. The court by local rule or by specific direction, may require or
waive the presence of the affected person or the Settlement guardian ad Litem.
(g) Attorney's Fees and Costs. Any attorney claiming fees, costs or
other charges incident to representation of the affected person, from the
claim proceeds or otherwise, shall file an affidavit or declaration under
RCW 9A.72.085 in support thereof. Copies of any written fee agreements
must be attached to the affidavit or declaration.
(h) Deposit in Court and Disbursements. Except for any structured
portion of a settlement, the total judgment or total settlement shall be
paid into the registry of the court, or as otherwise ordered by the court.
All sums deductible therefrom, including costs, attorney's fees, hospital
and medical expenses, and any other expense, shall be paid upon approval
of the court.
(i) Form for Payment of Remaining Funds. Checks for funds payable to
the affected person may be made out by the clerk jointly to the depository
bank, trust company, or insured financial institution and to the
independent attorney for the affected person, guardian or limited
guardian, or trustee, and deposit shall be made to the trust or into a
blocked account for the affected person with provision that withdrawals
cannot be made except as provided in the trust instrument or as ordered by
the court. A deposit receipt to that effect must timely be filed with the
court by the payee.
(j) Control and Orders for Remaining Funds. In calculating the amount
remaining from a structured settlement, if the settlement required court
approval only because the affected person was an unemancipated minor, then
only the payments received and to be received before attaining majority
age are counted. All orders directing funds to a blocked account should
recite that the funds are payable upon further order of the court or to
the affected person at his or her age of majority, which date should be
specified. Upon approval of settlement and payment of all authorized fees,
bills and expenses, the court shall order one of the following actions:
(1) $25,000 or Less. If the money or the value of other property
remaining after deduction for all approved fees, bills and expenses is
$25,000 or less, the court shall require that:
(A) the money be deposited in a bank or trust company or be invested
in an account in an insured financial institution for the benefit of the
affected person, subject to withdrawal only upon the order of the court as
a part of the original proceeding; or
(B) the money or property be paid to a duly appointed and qualified
guardian or limited guardian; or
(C) the money be placed in trust, subject to the conditions set forth
in subsection (3).
(2) More than $25,000. If the money or the value of other property
remaining after deduction for all approved fees, bills and expenses
exceeds $25,000, the court in the order or judgment shall:
(A) if there is an existing or newly created guardian or limited
guardian who approves, require that the money be deposited in a bank or
trust company or be invested in an account in an insured financial
institution for the benefit of the affected person, subject to withdrawal
only upon the order of the court handling the guardianship or limited guardianship;
(B) if there is no guardian or limited guardian of the affected person
or no approval under (A), the court in the order or judgment shall require
that either a guardian or limited guardian be appointed, or
(C) the money or other property be placed in trust, subject to the
conditions set forth in subsection (3).
(3) Conditions for Use of Trust. A trust established pursuant to this
rule under subsection (1) or (2) must meet the following requirements:
(A) The selection of the trustee(s) and the terms of the trust shall
be subject to the court's approval;
(B) No family member of the affected person, or other potential
residual beneficiary of the trust, shall be approved by the court as a
sole trustee;
(C) A bonded or insured fiduciary shall be designated as a sole
trustee or as co-trustee with principal responsibility for financial
management of the trust estate;
(D) The fiduciary shall prepare an annual statement of income,
expenses, current assets, and fees charged; shall deliver the statement to
any co-trustees, the beneficiary, and the beneficiary's personal
representative; and shall present the statement for review and approval by
the court having jurisdiction over the beneficiary;
(E) No family member or potential residual beneficiary who serves as a
co-trustee shall exercise discretionary authority over individual
expenditures from the trust that would bring direct or indirect benefit to
that individual; and
(F) The administration of the trust shall be subject to the continuing
jurisdiction of the appropriate court.
(k) Bond. Unless all funds are to be placed in a blocked account or
court approved trust, sufficient bond shall be required for guardians and
limited guardians to the extent required by guardianship law.
131 Wn.2d 1105 effective April 8, 1997
RULE 98.20W
ESTATES--GUARDIANSHIPS--AUTHORIZATION
OF EXPENDITURES
(RESCINDED)
Rules for Superior Court
Guardian ad Litem Rules (GALR)
Table of Rules
Rule
GALR 1 Scope and Definitions
GALR 2 General Responsibilities of Guardian ad Litem
GALR 3 Roles and Responsibilities of Guardian ad Litem
in Title 13 RCW Juvenile Court Proceedings
GALR 4 Authority of Guardian ad Litem
GALR 5 Appointments of Guardian ad Litem
GALR 6 Limited Appointments
GALR 7 Grievance Procedures
GUARDIAN AD LITEM RULE 1:
SCOPE AND DEFINITIONS
(a) Statement of Purpose and Scope of Rule. The purpose of these
rules is to establish a minimum set of standards applicable to
all superior court cases where the court appoints a guardian ad
litem or any person to represent the best interest of a child, an
alleged incapacitated person, or an adjudicated incapacitated
person pursuant to Title 11, 13 or 26 RCW.
These rules shall also apply to guardians ad litem
appointed pursuant to RCW 4.08.050 and RCW 4.08.060, if the
appointment is under the procedures of Titles 11, 13 or 26 RCW.
These rules shall not be applicable to guardians ad litem
appointed pursuant to Special Proceedings Rule (SPR) 98.16W and
chapter 11.96A RCW.
(b) Definitions. As used in this rule, the following
terms have these meanings:
(1) Court. Court shall mean any superior court in the
state of Washington and all divisions thereof.
(2) Guardian ad Litem. Guardian ad litem shall mean any
person or program appointed in a Title 11, 13, or 26 RCW
action under the Revised Code of Washington to represent the
best interest of a child, an alleged incapacitated person,
or an adjudicated incapacitated person. The term guardian
ad litem shall not include an attorney appointed to
represent a party.
(3) Judge. Judge shall mean a judicial officer of the
superior court, including commissioners and judges pro tempore.
(4) Registry. Registry shall mean the list of people
authorized by the court to serve as guardians ad litem or
CASA programs authorized by RCW 26.12.175.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 2:
GENERAL RESPONSIBILITIES OF GUARDIAN AD LITEM
Consistent with the responsibilities set forth in Titles 11,
13, and 26 of the Revised Code of Washington and other applicable
statutes and rules of court, in every case in which a guardian ad
litem is appointed, the guardian ad litem shall perform the
responsibilities set forth below. For purposes of these rules, a
guardian ad litem is any person who is appointed by the court to
represent the best interest of the child(ren), an adjudicated
incapacitated person, or an alleged incapacitated person or to
assist the court in determining the best interest of the
child(ren), an adjudicated incapacitated person, or an alleged
incapacitated person, regardless of that person's title, except a
person appointed pursuant to rule 6.
(a) Represent best interests. A guardian ad litem shall
represent the best interests of the person for whom he or she is
appointed. Representation of best interests may be inconsistent
with the wishes of the person whose interest the guardian ad
litem represents. The guardian ad litem shall not advocate on
behalf of or advise any party so as to create in the mind of a
reasonable person the appearance of representing that party as an
attorney.
(b) Maintain independence. A guardian ad litem shall
maintain independence, objectivity and the appearance of fairness
in dealings with parties and professionals, both in and out of
the courtroom.
(c) Professional conduct. A guardian ad litem shall
maintain the ethical principles of the rules of conduct set forth
in these rules and is subject to discipline under local rules
established pursuant to rule 7 for violation.
(d) Remain qualified for the registry. Unless excepted by
statute or court rule, a guardian ad litem shall satisfy all
training requirements and continuing education requirements
developed for Titles13 and 26 RCW guardians ad litem by the
administrator of the courts and for Title 11 RCW guardians ad
litem as required by statute and maintain qualifications to serve
as guardian ad litem in every county where the guardian ad litem
is listed on the registry for that county and in which the
guardian ad litem serves and shall promptly advise each such
court of any grounds for disqualification or unavailability to
serve.
(e) Avoid conflicts of interests. A guardian ad litem shall
avoid any actual or apparent conflict of interest or impropriety
in the performance of guardian ad litem responsibilities. A
guardian ad litem shall avoid self-dealing or association from
which a guardian ad litem might directly or indirectly benefit,
other than for compensation as guardian ad litem. A guardian ad
litem shall take action immediately to resolve any potential
conflict or impropriety. A guardian ad litem shall advise the
court and the parties of action taken, resign from the matter, or
seek court direction as may be necessary to resolve the conflict
or impropriety. A guardian ad litem shall not accept or maintain
appointment if the performance of the duties of guardian ad litem
may be materially limited by the guardian ad litem’s
responsibilities to another client or a third person, or by the
guardian ad litem’s own interests.
(f) Treat parties with respect. A guardian ad litem is an
officer of the court and as such shall at all times treat the
parties with respect, courtesy, fairness and good faith.
(g) Become informed about case. A guardian ad litem shall
make reasonable efforts to become informed about the facts of the
case and to contact all parties. A guardian ad litem shall
examine material information and sources of information, taking
into account the positions of the parties.
(h) Make requests for evaluations to court. A guardian ad
litem shall not require any evaluations or tests of the parties
except as authorized by statute or court order issued following
notice and opportunity to be heard.
(i) Timely inform the court of relevant information. A
guardian ad litem shall file a written report with the court and
the parties as required by law or court order or in any event not
later than 10 days prior to a hearing for which a report is
required. The report shall be accompanied by a written list of
documents considered or called to the attention of the guardian
ad litem and persons interviewed during the course of the
investigation.
(j) Limit duties to those ordered by court. A guardian ad
litem shall comply with the court’s instructions as set out in
the order appointing a guardian ad litem, and shall not provide
or require services beyond the scope of the court’s instruction
unless by motion and on adequate notice to the parties, a
guardian ad litem obtains additional instruction, clarification
or expansion of the scope of such appointment.
(k) Inform individuals about role in case. A guardian ad
litem shall identify himself or herself as a guardian ad litem
when contacting individuals in the course of a particular case
and inform individuals contacted in a particular case about the
role of a guardian ad litem in the case at the earliest
practicable time. A guardian ad litem shall advise information
sources that the documents and information obtained may become
part of court proceedings.
(l) Appear at hearings. The guardian ad litem shall be
given notice of all hearings and proceedings. A guardian ad
litem shall appear at any hearing for which the duties of a
guardian ad litem or any issues substantially within a guardian
ad litem’s duties and scope of appointment are to be addressed.
In Title 11 RCW proceedings , the guardian ad litem shall appear
at all hearings unless excused by court order.
(m) Ex parte communication. A guardian ad litem shall not
have ex parte communications concerning the case with the
judge(s) and commissioner(s) involved in the matter except as
permitted by court rule or by statute.
(n) Maintain privacy of parties. As an officer of the
court, a guardian ad litem shall make no disclosures about the
case or the investigation except in reports to the court or as
necessary to perform the duties of a guardian ad litem. A
guardian ad litem shall maintain the confidential nature of
identifiers or addresses where there are allegations of domestic
violence or risk to a party’s or child’s safety. The guardian ad
litem may recommend that the court seal the report or a portion
of the report of the guardian ad litem to preserve the privacy,
confidentiality, or safety of the parties or the person for whom
the guardian ad litem was appointed. The court may, upon
application, and under such conditions as may be necessary to
protect the witnesses from potential harm, order disclosure or
discovery that addresses the need to challenge the truth of the
information received from the confidential source.
(o) Perform duties in timely manner. A guardian ad litem
shall perform responsibilities in a prompt and timely manner,
and, if necessary, request timely court reviews and judicial
intervention in writing with notice to parties or affected
agencies.
(p) Maintain documentation. A guardian ad litem shall
maintain documentation to substantiate recommendations and
conclusions and shall keep records of actions taken by the
guardian ad litem. Except as prohibited or protected by law, and
consistent with rule 2(n), this information shall be made
available for review on written request of a party or the court
on request. Costs may be imposed for such requests.
(q) Keep records of time and expenses. A guardian ad litem
shall keep accurate records of the time spent, services rendered,
and expenses incurred in each case and file an itemized statement
and accounting with the court and provide a copy to each party or
other entity responsible for payment. The court shall make
provisions for fees and expenses pursuant to statute in the Order
Appointing Guardian ad Litem or in any subsequent order.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 3:
ROLES AND RESPONSIBILITIES OF GUARDIAN AD LITEM IN TITLE 13 RCW
JUVENILE COURT PROCEEDINGS
In addition to the roles and responsibilities enumerated in
rule 2, a guardian ad litem in Title 13 RCW juvenile court
proceedings shall have the following responsibilities:
(a) Role. Unless otherwise specified in the order of
appointment, the roles and responsibilities of a guardian ad
litem are those roles and responsibilities specified in RCW
13.34.105 and applicable court rules.
(b) Explore concurrent planning. A guardian ad litem shall
explore concurrent planning and make a timely recommendation to
the court for a permanent plan for the child.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 4:
AUTHORITY OF GUARDIAN AD LITEM
As an officer of the court, a guardian ad litem has only such
authority conferred by the order of appointment. Consistent with the
roles and responsibilities set forth in rules 2 and 3, and the grievance
procedures set forth in rules 5 and 6, a guardian ad litem shall have the
following authority:
(a) Access to party. Unless circumstances warrant otherwise,
a guardian ad litem shall have access to the persons for whom a
guardian ad litem is appointed and to all information relevant to the
issues for which a guardian ad litem was appointed. The access of a
guardian ad litem to the child or alleged incapacitated person and all
relevant information shall not be unduly restricted by any person or
agency. When the guardian ad litem seeks contact with a party who is
represented by an attorney, the guardian ad litem shall notify the
attorney in advance of such contact. The guardian ad litem's contact
with the represented party shall be as permitted by the party's attorney,
unless otherwise ordered by the court.
(b) Timely receipt of case documents. Until discharged by
court order a guardian ad litem shall be timely furnished copies of all
relevant pleadings, documents, and reports by the party which served
or submitted them.
(c) Timely notification. A guardian ad litem shall be timely
notified of all court hearings, administrative reviews, staffings,
investigations, dispositions, and other proceedings concerning the case
by the person or agency scheduling the proceeding.
(d) Notice of proposed agreements. A guardian ad litem
shall be given notice of, and an opportunity to indicate his or her
agreement or objection to any proposed agreed order of the parties
governing issues substantially related to the duties of a guardian ad litem.
(e) Participate in all proceedings. Consistent with rule 2(l), a
guardian ad litem shall participate in court hearings through submission
of written and supplemental oral reports and as otherwise authorized by
statute and court rule.
(f) Access to records. Except as limited by law or unless
good cause is shown to the court, upon receiving a copy of the order
appointing a guardian ad litem, any person or agency, including but not
limited to any hospital, school, child care provider, organization,
department of social and health services, doctor, health care provider,
mental health provider, chemical health program, psychologist,
psychiatrist, or law enforcement agency, shall permit a guardian ad litem
to inspect and copy any and all records and interview personnel relating
to the proceeding for which a guardian ad litem is appointed.
(g) Access to court files. Within the scope of appointment, a
guardian ad litem shall have access to all superior court and all juvenile
court files. Access to sealed or confidential files shall be by separate
order. A guardian ad litem's report shall inform the court and parties if
the report contains information from sealed or confidential files. The
clerk of court shall provide certified copies of the order of appointment
to a guardian ad litem upon request and without charge.
(h) Additional rights and powers under RCW 13.34 or
RCW 26.26. In every case in which a guardian ad litem is a party to
the case pursuant to RCW 13.34 or RCW 26.26, a guardian ad litem
shall have the rights and powers set forth below. These rights and
powers are subject to all applicable statutes and court rules.
(1) File documents and respond to discovery. A guardian ad
litem shall have the right to file pleadings, motions, notices memoranda,
briefs, and other documents, and may, subject to the trial court's
discretion engage in and respond to discovery.
(2) Note motions and request hearings. A guardian ad litem
shall have the right to note motions and request hearings before the
court as appropriate to the best interests of the person(s) for whom a
guardian ad litem was appointed.
(3) Introduce exhibits, examine witnesses. A guardian ad
litem shall have the right, subject to the trial court's discretion, to
introduce exhibits, subpoena witnesses, and conduct direct and cross
examination of witnesses.
(4) Oral argument and submission of reports. A guardian ad
litem shall have the right to fully participate in the proceedings through
submission of written reports, and, may with the consent of the trial
court present oral argument.
(i) Additional rights and powers in other cases. For good
cause shown, a guardian ad litem may petition the court for additional
authority as set forth in rule 2(j).
(j) Additional training requirements. The Administrative
Office of the Courts shall amend the current guardian ad litem
mandatory training so that Titles 13 and 26 RCW guardians ad litem are
prepared to carry out the additional requirements of this rule.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 5:
APPOINTMENTS OF GUARDIAN AD LITEM
(a) Equitable distribution of workload. Each court shall
promulgate local rules providing a system of appointing and
reasonably compensating guardians ad litem which ensures an
equitable distribution of the work load among the guardians ad
litem on the registry.
(b) Procedure to address complaints. The local rules shall
provide a procedure to timely address complaints made by any
guardian ad litem regarding registry or appointment matters.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 6:
LIMITED APPOINTMENTS
There may be situations where the court wishes to appoint a
person in addition to, or instead of, a guardian ad litem to
fulfill very limited roles. This will help avoid conflict of
interest situations for guardians ad litem serving in a case and
will limit the time and expense spent on cases which do not
require a guardian ad litem. A person appointed pursuant to this
rule is strictly limited to the duties of the role below selected
by the court. If the order of appointment does not specifically
designate a limited appointment as listed below, the person
appointed is presumed to be a guardian ad litem, subject to the
Guardian ad Litem Rules. The court may make the following
limited appointments:
(a) Mediator. The court may either appoint or refer to a
person or agency whose role is to assist the parties in reaching
an agreement about any or all contested issues in the case.
(b) Evaluator. The court may appoint or refer to a person
or agency for evaluation and findings regarding a specific issue
or issues including but not limited to mental health, substance
abuse, issues of abuse or neglect, cultural factors, and sexual
deviancy.
(c) Visitation supervisor. The court may appoint or refer
to a person or agency to supervise visits and report findings to
the court.
(d) Settlement of minors’ claims. The court may appoint a
person for the limited purpose described in Special Proceedings
Rules (SPR) 98.16W.
(e) Other. Under exceptional circumstances, upon good cause
shown, the court may make other limited appointments as it deems
necessary.
[Adopted effective November 27, 2001.]
GUARDIAN AD LITEM RULE 7:
GRIEVANCE PROCEDURES
Each court shall promulgate rules that set out or refer to
policies and procedures establishing and governing the filing,
investigating, and adjudicating grievances made by or against
guardians ad litem under Titles, 11, 13, and 26 RCW. The rules
shall, at a minimum, comply with and address the following:
(a) Clear and concise. The rules shall be clear, and
concise and easily understood by both attorneys and non-
attorneys.
(b) Separate procedures. The rules shall establish separate
procedures addressing grievances or complaints filed during the
pendency of a case, and grievances or complaints filed subsequent
to the conclusion of a case.
(c) Fair treatment of grievances. The rules shall establish
procedures providing for fair treatment of grievances including
appearance-of-fairness and conflict issues.
(d) CASA grievance procedures. Where applicable, local
rules shall accommodate the grievance procedures of Court
Appointed Special Advocate(s) (CASA) or other volunteer
program(s).
(e) Confidentiality. The rules shall provide for
confidentiality of complaints until merit has been found.
(f) Response to complaint. The rules shall provide a
procedure for any guardian ad litem who is the subject of a
complaint to respond to the complaint.
(g) Complaint resolution time standards. The rules shall
include a time limit during which a complaint must be resolved.
The limit shall not be longer than 25 days for complaints filed
while a case is pending or 60 days for complaints filed
subsequent to the conclusion of a case.
(h) Records of grievances. For its own reference purposes,
the court shall maintain a record of grievances filed and of any
sanctions issued pursuant to local court grievance procedure.
(i) Removal from registry. When a guardian ad litem is
removed from a county’s registry pursuant to the disposition of a
grievance, the court of that county shall send notice of such
removal to the Office of the Administrator of the Courts, who
shall on a regular basis, but not less than biannually, forward
the information to the superior courts of each county in the
state of Washington.
(j) Implementation. Local court rules establishing a
grievance procedure shall be filed in the manner provided
in GR 7.
[Adopted effective November 27, 2001.
SUPERIOR COURT CRIMINAL RULES (CrR)
TABLE OF RULES
1. SCOPE, PURPOSE AND CONSTRUCTION
Rule
1.1 Scope
1.2 Purpose and Construction
1.3 Effect
1.4 Prosecuting Attorney Definition
1.5 Style and Form
2. PROCEDURES PRIOR TO ARREST AND OTHER
SPECIAL PROCEEDINGS
2.1 The Indictment and the Information
2.2 Warrant of Arrest and Summons
2.3 Search and Seizure
3. RIGHTS OF DEFENDANTS
3.1 Right to and Assignment of Lawyer
3.2 Release of Accused
3.2A Repealed
3.2B Repealed
3.2.1 Procedure Following Warrantless Arrest - Preliminary Appearance
3.3 Time for Trial
3.4 Presence of the Defendant
3.5 Confession Procedure
3.6 Suppression Hearings--Duty of Court
4. PROCEDURES PRIOR TO TRIAL
4.1 Arraignment
4.2 Pleas
4.2 Statement of Defendant on Plea of Guilty to Non-Sex Offense
4.2 Statement of Defendant on Plea of Guilty to Sex Offense
4.2 "Offender Registration" Attachment: Sex Offense, or Kidnapping
Offense Involving a Minor as Defined in RCW 9A.44.130
4.3 Joinder of Offenses and Defendants
4.3.1 Consolidation For Trial
4.4 Severance of Offenses and Defendants
4.5 Omnibus Hearing
4.6 Depositions
4.7 Discovery
4.8 Subpoenas
4.9 Pretrial Conference (Rescinded)
4.10 Material Witness
5. VENUE
5.1 Commencement of Actions
5.2 Change of Venue
6. PROCEDURES AT TRIAL
6.1 Trial by Jury or by the Court
6.2 Jurors' Orientation
6.3 Selecting the Jury
6.4 Challenges
6.5 Alternate Jurors
6.6 Jurors' Oath
6.7 Custody of Jury
6.8 Notetaking by Jurors
6.9 View of Premises by Jury
6.10 Discharge of Jury
6.11 Judge--Disability
6.12 Witnesses
6.13 Testimony in Lieu of Witnesses
6.14 Immunity
6.15 Instructions and Argument
6.16 Verdicts and Findings
7. PROCEDURES FOLLOWING CONVICTION
7.1 Procedures Before Sentencing
7.2 Sentencing
7.3 Judgment
7.4 Arrest of Judgment
7.5 New Trial
7.6 Probation
7.7 Post-Conviction Relief (Rescinded)
7.8 Relief From Judgment or Order
8. MISCELLANEOUS
8.1 Time
8.2 Motions
8.3 Dismissal
8.4 Service, Filing, and Signing of Papers
8.5 Calendars
8.6 Exceptions Unnecessary
8.7 Objections
8.8 Discharge
8.9 Change of Judge
RULE 1.1
SCOPE
These rules govern the procedure in the courts of general jurisdiction
of the State of Washington in all criminal proceedings and supersede all
procedural statutes and rules that may be in conflict and shall be
interpreted and supplemented in light of the common law and the decisional
law of this state. These rules shall not be construed to affect or derogate
from the constitutional rights of any defendant.
RULE 1.2
PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination of every
criminal proceeding. They shall be construed to secure simplicity in
procedure, fairness in administration, effective justice, and the
elimination of unjustifiable expense and delay.
RULE 1.3
EFFECT
Except as otherwise provided elsewhere in these rules, on their
effective date:
(a) Any acts done before the effective date in any proceedings then
pending or any action taken in any proceeding pending under rules of
procedure in effect prior to the effective date of these rules and any
constitutional right are not impaired by these rules.
(b) These rules also apply to any proceedings in court then pending or
thereafter commenced regardless of when the proceedings were commenced,
except to the extent that in the opinion of the court, the former procedure
should continue to be made applicable in a particular case in the interest
of justice or because of infeasibility of application of the procedures of
these rules.
RULE 1.4
PROSECUTING ATTORNEY DEFINITION
Whenever used in these rules, prosecuting attorney shall include deputy
prosecuting attorneys, or such other person as may be designated by
statute.
RULE 1.5
STYLE AND FORM
[Reserved. See GR 14.]
RULE 2.1
THE INDICTMENT AND THE INFORMATION
(a) Use of Indictment or Information. The initial pleading by the State
shall be an indictment or an information in all criminal proceedings filed
by the prosecuting attorney.
(1) Nature. The indictment or the information shall be a plain, concise
and definite written statement of the essential facts constituting the
offense charged. It shall be signed by the prosecuting attorney.
Allegations made in one count may be incorporated by reference in another
count. It may be alleged that the means by which the defendant committed
the offense are unknown or that the defendant committed it by one or more
specified means. The indictment or information shall state for each count
the official or customary citation of the statute, rule, regulation or
other provision of law which the defendant is alleged therein to have
violated. Error in the citation or its omission shall not be ground for
dismissal of the indictment or information or for reversal of a conviction
if the error or omission did not mislead the defendant to the defendant's
prejudice.
(2) Contents. The indictment or the information shall contain or have
attached to it the following information when filed with the court:
(i) the name, address, date of birth, and sex of the defendant;
(ii) all known personal identification numbers for the defendant,
including the Washington driver's operating license (DOL) number, the state
criminal identification (SID) number, the state criminal process control
number (PCN), the JUVIS control number, and the Washington Department of
Corrections (DOC) number.
(b) Surplusage. The court on motion of the defendant may strike
surplusage from the indictment or information.
(c) Bill of Particulars. The court may direct the filing of a bill of
particulars. A motion for a bill of particulars may be made before
arraignment or within 10 days after arraignment or at such later time as
the court may permit.
(d) Amendment. The court may permit any information or bill of
particulars to be amended at any time before verdict or finding if
substantial rights of the defendant are not prejudiced.
(e) Defendant's Criminal History. Upon the filing of an indictment or
information charging a felony, the prosecuting attorney shall request a
copy of the defendant's criminal history, as defined in RCW 9.94A.030, from
the Washington State Patrol Identification and Criminal History Section.
Comment
Supersedes RCW 10.37.020, .025, .026, .035, .180; RCW 10.40.080; RCW
10.46.170. The purpose of section (f) is to ensure that the defendant's
criminal history is available when and if the court is required to
determine the validity of a plea agreement.
RULE CrR 2.2
WARRANT OF ARREST AND SUMMONS
(a) Warrant of Arrest.
(1) Generally. If an indictment is found or an information is filed,
the court may direct the clerk to issue a warrant for the arrest of the defendant.
(2) Probable Cause. Before ruling on a request for a warrant the court
may require the complainant to appear personally and may examine under oath
the complainant and any witnesses the complainant may produce. A warrant of
arrest may not issue unless the court determines that there is probable
cause to believe that the defendant committed the offense charged. The
court shall determine probable cause based on an affidavit, a document as
provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony
establishing the grounds for issuing the warrant. Sworn testimony shall be
recorded electronically or stenographically. The evidence shall be
preserved and shall be subject to constitutional limitations for probable
cause determinations and may be hearsay in whole or in part.
(3) Ascertaining Defendant's Current Address.
(i) Search for address. The court shall not issue a warrant unless it
determines that the complainant has attempted to ascertain the defendant's
current address by searching the following: (A) the District Court
Information System database (DISCIS), (B) the driver's license and
identicard database maintained by the Department of Licenses; and (C) the
database maintained by the Department of Corrections listing persons
incarcerated and under supervision. The court in its discretion may
require that other databases be searched.
(ii) Exemptions from Address Search. The search required by
subdivision (i) shall not be required if (A) the defendant has already
appeared in court after filing of the same case, (B) the defendant is known
to be in custody, or (C) the defendant's name is unknown.
(iii) Effect of Erroneous Issuance. If a warrant is erroneously
issued in violation of this subsection (a)(3), that error shall not affect
the validity of the warrant.
(b) Issuance of Summons in Lieu of Warrant.
(1) Generally. If an indictment is found or an information is filed,
the court may direct the clerk to issue a summons commanding the defendant
to appear before the court at a specified time and place.
(2) When Summons Must Issue. The court shall direct the clerk to issue
a summons instead of a warrant unless it finds reasonable cause to believe
that the defendant (i) will not appear in response to a summons, (ii) will
commit a violent offense, (iii) will interfere with witnesses or the
administration of justice, or (iv) is in custody.
(3) Summons. A summons shall be in writing and in the name of the State
of Washington, shall be signed by the clerk with the title of the office,
and shall state the date when issued and the county where issued. It shall
state the name of the defendant and shall summon the defendant to appear
before the court at a stated time and place.
(4) Failure To Appear on Summons. If a person fails to appear in
response to a summons, or if service is not effected within a reasonable
time, a warrant for arrest may issue.
(c) Requisites of a Warrant. The warrant shall be in writing and in the
name of the State of Washington, shall be signed by the clerk with the
title of the office, and shall state the date when issued and the county
where issued. It shall specify the name of the defendant, or if the
defendant's name is unknown, any name or description by which the defendant
can be identified with reasonable certainty. The warrant shall specify the
offense charged against the defendant and that the court has found that
probable cause exists to believe the defendant has committed the offense
charged and shall command that the defendant be arrested and brought
forthwith before the court issuing the warrant. If the offense is bailable,
the judge shall set forth in the order for the warrant, bail, or other
conditions of release.
(d) Execution; Service.
(1) Execution of Warrant. The warrant shall be directed to all peace
officers in the state and shall be executed only by a peace officer.
(2) Service of Summons. The summons may be served any place within the
state. It shall be served by a peace officer who shall deliver a copy of
the same to the defendant personally, or it may be served by mailing the
same, postage prepaid, to the defendant at the defendant's address.
(e) Return. The officer executing a warrant shall make return to the
court before whom the defendant is brought pursuant to these rules. At the
request of the prosecuting attorney any unexecuted warrant shall be
returned to the issuing court to be canceled. The person to whom a summons
has been delivered for service shall, on or before the return date, file a
return with the court before which the summons is returnable. For
reasonable cause, the court may order that the warrant be returned to it.
(f) Defective Warrant or Summons.
(1) Amendment. No person arrested under a warrant or appearing in
response to a summons shall be discharged from custody or dismissed because
of any irregularity in the warrant or summons, but the warrant or summons
may be amended so as to remedy any such irregularity.
(2) Issuance of New Warrant or Summons. If during the preliminary
examination of any person arrested under a warrant or appearing in response
to a summons, it appears that the warrant or summons does not properly name
or describe the defendant or the offense with which the defendant is
charged, or that although not guilty of the offense specified in the
warrant or summons, there is reasonable ground to believe that the
defendant is guilty of some other offense, the judge shall not discharge or
dismiss the defendant but may allow a new indictment or information to be
filed and shall thereupon issue a new warrant or summons.
(g) Failure to Issue Warrant---Dismissal. Upon five days' notice to
the prosecuting attorney, the court shall dismiss a charge without
prejudice if (i) 90 days have elapsed since the indictment or information
was filed and (ii) on the date that the order of dismissal is entered, no
warrant has been issued and the defendant has not appeared in court.
[Amended effective September 1, 1983; September 1, 1986; September 1, 1995;
September 1, 2003; September 1, 2006.]
Comment
Supersedes RCW 10.31.010, .020.
RULE 2.3
SEARCH AND SEIZURE
(a) Authority To Issue Warrant. A search warrant authorized by this
rule may be issued by the court upon request of a peace officer or a
prosecuting attorney.
(b) Property or Persons Which May Be Seized With a Warrant. A warrant
may be issued under this rule to search for and seize any (1) evidence of a
crime; or (2) contraband, the fruits of crime, or things otherwise
criminally possessed; or (3) weapons or other things by means of which a
crime has been committed or reasonably appears about to be committed; or
(4) person for whose arrest there is probable cause, or who is unlawfully
restrained.
(c) Issuance and Contents. A search warrant may be issued only if the
court determines there is probable cause for the issuance of a warrant.
There must be an affidavit, a document as provided in RCW 9A.72.085 or any
law amendatory thereto, or sworn testimony establishing the grounds for
issuing the warrant. The sworn testimony may be an electronically recorded
telephonic statement. The recording or a duplication of the recording shall
be a part of the court record and shall be transcribed if requested by a
party if there is a challenge to the validity of the warrant or if ordered
by the court. The evidence in support of the finding of probable cause
shall be preserved and shall be subject to constitutional limitations for
such determinations and may be hearsay in whole or in part. If the court
finds that probable cause for the issuance of a warrant exists, it shall
issue a warrant or direct an individual whom it authorizes for such purpose
to affix the court's signature to a warrant identifying the property or
person and naming or describing the person, place or thing to be searched.
The court shall record a summary of any additional evidence on which it
relies. The warrant shall be directed to any peace officer. It shall
command the officer to search, within a specified period of time not to
exceed 10 days, the person, place, or thing named for the property or
person specified. It shall designate to whom it shall be returned. The
warrant may be served at any time.
(d) Execution and Return With Inventory. The peace officer taking
property under the warrant shall give to the person from whom or from whose
premises the property is taken a copy of the warrant and a receipt for the
property taken. If no such person is present, the officer may post a copy
of the search warrant and receipt. The return shall be made promptly and
shall be accompanied by a written inventory of any property taken. The
inventory shall be made in the presence of the person from whose possession
or premises the property is taken, or in the presence of at least one
person other than the officer. The court shall upon request deliver a copy
of the inventory to the person from whom or from whose premises the
property was taken and to the applicant for the warrant.
(e) Motion for Return of Property. A person aggrieved by an unlawful
search and seizure may move the court for the return of the property on the
ground that the property was illegally seized and that the person is
lawfully entitled to possession thereof. If the motion is granted the
property shall be returned. If a motion for return of property is made or
comes on for hearing after an indictment or information is filed in the
court in which the motion is pending, it shall be treated as a motion to
suppress.
(f) Searches of Media.
(1) Scope. If an application for a search warrant is governed by RCW
10.79.015(3) or 42 U.S.C. sections 2000aa et seq., this section controls
the procedure for obtaining the evidence.
(2) Subpoena Duces Tecum. Except as provided in subsection (3), if the
court determines that the application satisfies the requirements for
issuance of a warrant, as provided in section (c) of this rule, the court
shall issue a subpoena duces tecum in accordance with CR 45(b).
(3) Warrant. If the court determines that the application satisfies the
requirements for issuance of a warrant and that RCW 10.79.015(3) and 42
U.S.C. sections 2000aa et seq. permit issuance of a search warrant rather
than a subpoena duces tecum, the court may issue a warrant.
Comment
Supersedes RCW 10.79.010, .030.
RULE CrR 3.1
RIGHT TO AND ASSIGNMENT OF LAWYER
(a) Types of Proceedings. The right to a lawyer shall extend to all
criminal proceedings for offenses punishable by loss of liberty regardless of
their denomination as felonies, misdemeanors, or otherwise.
(b) Stage of Proceedings.
(1) The right to a lawyer shall accrue as soon as feasible after the
defendant is taken into custody, appears before a committing magistrate, or is
formally charged, whichever occurs earliest.
(2) A lawyer shall be provided at every stage of the proceedings, including
sentencing, appeal, and post-conviction review. A lawyer initially appointed
shall continue to represent the defendant through all stages of the proceedings
unless a new appointment is made by the court following withdrawal of the
original lawyer pursuant to section (e) because geographical considerations or
other factors make it necessary.
(c) Explaining the Availability of a Lawyer.
(1) When a person is taken into custody that person shall immediately be
advised of the right to a lawyer. Such advice shall be made in words easily
understood, and it shall be stated expressly that a person who is unable to pay
a lawyer is entitled to have one provided without charge.
(2) At the earliest opportunity a person in custody who desires a lawyer
shall be provided access to a telephone, the telephone number of the public
defender or official responsible for assigning a lawyer, and any other means
necessary to place the person in communication with a lawyer.
(d) Assignment of Lawyer.
(1) Unless waived, a lawyer shall be provided to any person who is
financially unable to obtain one without causing substantial hardship to the
person or to the person's family. A lawyer shall not be denied to any person
merely because the person's friends or relatives have resources adequate to
retain a lawyer or because the person has posted or is capable of posting bond.
(2) The ability to pay part of the cost of a lawyer shall not preclude
assignment. The assignment of a lawyer may be conditioned upon part payment
pursuant to an established method of collection.
(3) Information given by a person to assist in the determination of whether
the person is financially able to obtain a lawyer shall be under oath and shall
not be available for use by the prosecution in the pending case in chief.
(4) Before appointing a lawyer for the indigent person or at the first
appearance of the lawyer in the case, the court shall require the lawyer to
certify to the court that he or she complies with the applicable Standards for
Indigent Defense Services to be approved by the Supreme Court.
(e) Withdrawal of Lawyer. Whenever a criminal cause has been set for trial,
no lawyer shall be allowed to withdraw from said cause, except upon written
consent of the court, for good and sufficient reason shown.
(f) Services Other Than a Lawyer.
(1) A lawyer for a defendant who is financially unable to obtain
investigative, expert or other services necessary to an adequate defense in the
case may request them by a motion to the court.
(2) Upon finding the services are necessary and that the defendant is
financially unable to obtain them, the court, or a person or agency to which
the administration of the program may have been delegated by local court rule,
shall authorize the services. The motion may be made ex parte and, upon a
showing of good cause, the moving papers may be ordered sealed by the court and
shall remain sealed until further order of the court. The court, in the
interest of justice and on a finding that timely procurement of necessary
services could not await prior authorization, shall ratify such services after
they have been obtained.
(3) Reasonable compensation for the services shall be determined and payment
directed to the organization or person who rendered them upon the filing of a
claim for compensation supported by affidavit specifying the time expended and the
services and expenses incurred on behalf of the defendant, and the compensation
received in the same case or for the same services from any other source.
[Amended effective September 1, 1986; September 1, 1995; June 30, 2012.]
Comment
Supersedes RCW 10.01.110; RCW 10.40.030; RCW 10.46.050.
3.1 STDS STANDARDS FOR INDIGENT DEFENSE (IN WORD FORMAT) The contents of this item are only available on-line.
CrR 3.2
RELEASE OF ACCUSED
If the court does not find, or a court has not previously found,
probable cause, the accused shall be released without conditions.
(a) Presumption of Release in Noncapital Cases.
Any person, other than a person charged with a capital
offense, shall at the preliminary appearance or reappearance
pursuant to rule 3.2.1 or CrRLJ 3.2.1 be ordered released on
the accused's personal recognizance pending trial unless:
(1) the court determines that such recognizance will not
reasonably assure the accused's appearance, when
required, or
(2) there is shown a likely danger that the accused:
(a) will commit a violent crime, or
(b) will seek to intimidate witnesses, or otherwise unlawfully interfere
with the administration of justice.
For the purpose of this rule, "violent crimes" are not limited to
crimes defined as violent offenses in RCW 9.94A.030.
In making the determination herein, the court shall, on the
available information, consider the relevant facts including, but
not limited to, those in subsections (c) and (e) of this rule.
(b) Showing of Likely Failure to Appear-Least Restrictive
Conditions of Release. If the court determines that the accused
is not likely to appear if released on personal recognizance, the
court shall impose the least restrictive of the following
conditions that will reasonably assure that the accused will be
present for later hearings, or, if no single condition gives that
assurance, any combination of the following conditions:
(1) Place the accused in the custody of a designated person
or organization agreeing to supervise the accused;
(2) Place restrictions on the travel, association, or place
of abode of the accused during the period of release;
(3) Require the execution of an unsecured bond in a specified amount;
(4) Require the execution of a bond in a specified amount
and the deposit in the registry of the court in cash or other
security as directed, of a sum not to exceed 10 percent of the
amount of the bond, such deposit to be returned upon the
performance of the conditions of release or forfeited for
violation of any condition of release;
(5) Require the execution of a bond with sufficient solvent
sureties, or the deposit of cash in lieu thereof;
(6) Require the accused to return to custody during
specified hours or to be placed on electronic monitoring, if available; or
(7) Impose any condition other than detention deemed
reasonably necessary to assure appearance as required.
If the court determines that the accused must post a secured or
unsecured bond, the court shall consider, on the available
information, the accused's financial resources for the purposes
of setting a bond that will reasonably assure the accused's appearance.
(c) Relevant Factors-Future Appearance. In determining which
conditions of release will reasonably assure the accused's
appearance, the court shall, on the available information,
consider the relevant facts including but not limited to:
(1) The accused's history of response to legal process,
particularly court orders to personally appear;
(2) The accused's employment status and history, enrollment
in an educational institution or training program,
participation in a counseling or treatment program,
performance of volunteer work in the community,
participation in school or cultural activities or receipt of
financial assistance from the government;
(3) The accused's family ties and relationships;
(4) The accused's reputation, character and mental condition;
(5) The length of the accused's residence in the community;
(6) The accused's criminal record;
(7) The willingness of responsible members of the community
to vouch for the accused's reliability and assist the
accused in complying with conditions of release;
(8) The nature of the charge, if relevant to the risk of nonappearance;
(9) Any other factors indicating the accused's ties to the community.
(d) Showing of Substantial Danger-Conditions of Release.
Upon a showing that there exists a substantial danger that the
accused will commit a violent crime or that the accused will seek
to intimidate witnesses, or otherwise unlawfully interfere with
the administration of justice, the court may impose one or more
of the following nonexclusive conditions:
(1) Prohibit the accused from approaching or communicating
in any manner with particular persons or classes of persons;
(2) Prohibit the accused from going to certain geographical areas or premises;
(3) Prohibit the accused from possessing any dangerous
weapons or firearms, or engaging in certain described activities
or possessing or consuming any intoxicating liquors or drugs not
prescribed to the accused;
(4) Require the accused to report regularly to and remain
under the supervision of an officer of the court or other person or agency;
(5) Prohibit the accused from committing any violations of criminal law;
(6) Require the accused to post a secured or unsecured bond
or deposit cash in lieu thereof, conditioned on compliance with
all conditions of release. This condition may be imposed only if
no less restrictive condition or combination of conditions would
reasonably assure the safety of the community. If the court
determines under this section that the accused must post a
secured or unsecured bond, the court shall consider, on the
available information, the accused's financial resources for the
purposes of setting a bond that will reasonably assure the safety
of the community and prevent the defendant from intimidating
witnesses or otherwise unlawfully interfering with the
administration of justice.
(7) Place the accused in the custody of a designated person
or organization agreeing to supervise the accused;
(8) Place restrictions on the travel, association, or place
of abode of the accused during the period of release;
(9) Require the accused to return to custody during
specified hours or to be placed on electronic monitoring, if available; or
(10) Impose any condition other than detention to assure
noninterference with the administration of justice and reduce
danger to others or the community.
(e) Relevant Factors-Showing of Substantial Danger. In
determining which conditions of release will reasonably assure
the accused's noninterference with the administration of justice,
and reduce danger to others or the community, the court shall, on
the available information, consider the relevant facts including
but not limited to:
(1) The accused's criminal record;
(2) The willingness of responsible members of the community to
vouch for the accused's reliability and assist the accused in
complying with conditions of release;
(3) The nature of the charge;
(4) The accused's reputation, character and mental condition;
(5) The accused's past record of threats to victims or witnesses
or interference with witnesses or the administration of justice;
(6) Whether or not there is evidence of present threats or
intimidation directed to witnesses;
(7) The accused's past record of committing offenses while on
pretrial release, probation or parole; and
(8) The accused's past record of use of or threatened use of
deadly weapons or firearms, especially to victim's or witnesses.
(f) Delay of Release. The court may delay release of a
person in the following circumstances:
(1) If the person is intoxicated and release will
jeopardize the persons safety or that of others, the court
may delay release of the person or have the person
transferred to the custody and care of a treatment center.
(2) If the persons mental condition is such that the
court believes the person should be interviewed by a mental
health professional for possible commitment to a mental
treatment facility pursuant to RCW 71.05, the court may
delay release of the person.
(3) Unless other grounds exist for continued detention,
a person detained pursuant to this section must be released
from detention not later than 24 hours after the preliminary appearance.
(g) Release in Capital Cases. Any person charged with a
capital offense shall not be released in accordance with this
rule unless the court finds that release on conditions will
reasonably assure that the accused will appear for later
hearings, will not significantly interfere with the
administration of justice and will not pose a substantial danger
to another or the community. If a risk of flight, interference or
danger is believed to exist, the person may be ordered detained without bail.
(h) Release After Finding or Plea of Guilty. After a person
has been found or pleaded guilty, and subject to RCW 9.95.062,
9.95.064, 10.64.025, and 10.64.027, the court may revoke, modify,
or suspend the terms of release and/or bail previously ordered.
(i) Order for Release. A court authorizing the release of
the accused under this rule shall issue an appropriate order
containing a statement of the conditions imposed, if any, shall
inform the accused of the penalties applicable to violations of
the conditions imposed, if any, shall inform the accused of the
penalties applicable to violations of the conditions of the
accused's release and shall advise the accused that a warrant for
the accused's arrest may be issued upon any such violation.
(j) Review of Conditions.
(1) At any time after the preliminary appearance, an
accused who is being detained due to failure to post bail
may move for reconsideration of bail. In connection with
this motion, both parties may present information by proffer
or otherwise. If deemed necessary for a fair determination
of the issue, the court may direct the taking of additional testimony.
(2) A hearing on the motion shall be held within a
reasonable time. An electronic or stenographic record of the
hearing shall be made. Following the hearing, the court
shall promptly enter an order setting out the conditions of
release in accordance with section (i). If a bail
requirement is imposed or maintained, the court shall set
out its reasons on the record or in writing.
(k) Amendment or Revocation of Order.
(1) The court ordering the release of an accused on any
condition specified in this rule may at any time on change
of circumstances, new information or showing of good cause
amend its order to impose additional or different conditions for release.
(2) Upon a showing that the accused has willfully
violated a condition of release, the court may revoke
release and may order forfeiture of any bond. Before
entering an order revoking release or forfeiting bail, the
court shall hold a hearing in accordance with section (j).
Release may be revoked only if the violation is proved by
clear and convincing evidence.
(l) Arrest for Violation of Conditions.
(1) Arrest With Warrant. Upon the court's own motion or
a verified application by the prosecuting attorney alleging
with specificity that an accused has willfully violated a
condition of the accused's release, a court shall order the
accused to appear for immediate hearing or issue a warrant
directing the arrest of the accused for immediate hearing
for reconsideration of conditions of release pursuant to
section (k).
(2) Arrest Without Warrant. A law enforcement officer
having probable cause to believe that an accused released
pending trial for a felony is about to leave the state or
has violated a condition of such release under circumstances
rendering the securing of a warrant impracticable may arrest
the accused and take him forthwith before the court for
reconsideration of conditions of release pursuant to section (k).
(m) Evidence. Information stated in, or offered in
connection with, any order entered pursuant to this rule need not
conform to the rules pertaining to the admissibility of evidence
in a court of law.
(n) Forfeiture. Nothing contained in this rule shall be
construed to prevent the disposition of any case or class of
cases by forfeiture of collateral security where such disposition
is authorized by the court.
(o) Accused Released on Recognizance or Bail--Absence--
Forfeiture. If the accused has been released on the accused's own
recognizance, on bail, or has deposited money instead thereof,
and does not appear when the accused's personal appearance is
necessary or violated conditions of release, the court, in
addition to the forfeiture of the recognizance, or of the money
deposited, may direct the clerk to issue a bench warrant for the
accused's arrest.
Comment
Supersedes RCW 10.16.190; RCW 10.19.010, .020, .025, .050, .070, .080; RCW
10.40.130; RCW 10.46.170; RCW 10.64.035.
[Adopted amended effective September 1, 2002.]
CrR 3.2.1
PROCEDURE FOLLOWING WARRANTLESS ARREST -
PRELIMINARY APPEARANCE
(a) Probable Cause Determination. A person who is arrested shall
have a judicial determination of probable cause no later than 48
hours following the person’s arrest, unless probable cause has
been determined prior to such arrest.
(b) How Determined. The court shall determine probable cause on
evidence presented by a peace officer or prosecuting authority in
the same manner as provided for a warrant of arrest in rule
2.2(a). The evidence shall be preserved and may consist of an
electronically recorded telephonic statement. If the court finds
that release without bail should be denied or that conditions
should attach to the release on personal recognizance, other than
the promise to appear for trial, the court shall proceed to
determine whether probable cause exists to believe that the
accused committed the offense charged, unless this determination
has previously been made by a court. Before making the
determination, the court may consider an affidavit, a document as
provided in RCW 9A.72.085 or any law amendatory thereto, or sworn
testimony, and further may examine under oath the affiant and any
witnesses the affiant may produce. Sworn testimony shall be
electronically or stenographically recorded. The evidence shall
be preserved and shall be subject to constitutional limitations
for probable cause determinations, and may be hearsay in whole or
in part.
(c) Court Days. For the purpose of section (a) Saturday, Sunday
and holidays may be considered judicial days.
(d) Preliminary Appearance.
(1) Adult. Unless a defendant has appeared or will appear before
a court of limited jurisdiction for a preliminary appearance
pursuant to CrRLJ 3.2.1(a), any defendant whether detained in jail
or subjected to court-authorized conditions of release shall be
brought before the superior court as soon as practicable after the
detention is commenced, the conditions of release are imposed or
the order is entered, but in any event before the close of
business on the next court day. A person is not subject to
conditions of release if the person has been served with a summons
and the only obligation is to appear in court on a future date.
(2) Juveniles. Any person in whose case the juvenile court has
entered a written order declining jurisdiction, and who is
detained in custody must be taken to appear before the superior
court as soon as practicable after the juvenile court order is
entered, but in any event before the close of business on the next
court day.
(3) Unavailability. If an accused is unavailable for preliminary
appearance because of physical or mental disability, the court
may, for good cause shown and recited in a written
order, enlarge the time prior to preliminary appearance.
(e) Procedure at Preliminary Appearance.
(1) At the preliminary appearance, the court shall provide for a
lawyer pursuant to rule 3.1 and for pretrial release pursuant to
rule 3.2, and the court shall orally inform the accused:
(i) of the nature of the charge against the accused;
(ii) of the right to be assisted by a lawyer at every stage of the
proceedings; and
(iii) of the right to remain silent, and that anything the accused
says may be used against him or her.
(2) If the court finds that release should be denied or that
conditions should attach to release on personal recognizance,
other than the promise to appear at subsequent hearings, the court
shall proceed to determine whether probable cause exists to
believe that the accused committed the offense charges, unless
this determination has previously been made by a court. Before
making the determination, the court may consider affidavits filed
or sworn testimony and further may examine under oath the
affiant and any witnesses he or she may produce. Subject to
constitutional limitations, the findings of probable cause may be
based on evidence which is hearsay in whole or in part.
(f) Time Limits.
(1) Unless an information or indictment is filed or the affected
person consents in writing or on the record in open court, an
accused, shall not be detained in jail or subjected to conditions
of release for more than 72 hours after the defendant’s detention
in jail or release on conditions, whichever occurs first.
Computation of the 72 hour period shall not include any part of
Saturdays, Sundays or holidays.
(2) If no information or indictment has been filed at the time of
the preliminary appearance, and the accused has not otherwise
consented, the court shall either:
(i) order in writing that the accused be released from jail or
exonerated from the conditions of release at a time certain which
is within the period described in subsection (f)(1); or
(ii) set a time at which the accused shall reappear before the
court. The time set for reappearance must also be within the
period described in subsection (f)(1). If no information or
indictment has been filed by the time set for release or
reappearance, the accused shall be immediately released from jail
or deemed exonerated from all conditions of release.
[Former Rule 3.2A and former Rule 3.2B adopted effective July 1,
1992; redesignated as Rule 3.2.1 adopted effective April 3,
2001; amended effective September 1, 2002.]
RULE 3.2A
[Adopted effective July 1, 1992; amended effective September 1, 1995;
repealed effective April 3, 2001.]
RULE 3.2B
[Former Rule 3.2A adopted effective August 1, 1980; redesignated as
Rule 3.2B effective July 1, 1992; repealed effective April 3, 2001.]
RULE CrR 3.3
TIME FOR TRIAL
(a) General Provisions.
(1) Responsibility of Court. It shall be the responsibility
of the court to ensure a trial in accordance with this rule to
each person charged with a crime.
(2) Precedence Over Civil Cases. Criminal trials shall take
precedence over civil trials.
(3) Definitions. For purposes of this rule:
(i) "Pending charge" means the charge for which the
allowable time for trial is being computed.
(ii) "Related charge" means a charge based on the same
conduct as the pending charge that is ultimately file in the
superior court.
(iii) "Appearance" means the defendant's physical
presence in the adult division of the superior court where the
pending charge was filed. Such presence constitutes appearance
only if (A) the prosecutor was notified of the presence and (B)
the presence is contemporaneously noted on the record under the
cause number of the pending charge.
(iv) "Arraignment" means the date determined under CrR 4.1(b).
(v) "Detained in jail" means held in the custody of a
correctional facility pursuant to the pending charge. Such
detention excluded any period in which a defendant is on
electronic home monitoring, is being held in custody on an
unrelated charge or hold, or is serving a sentence of confinement.
(4) Construction. The allowable time for trial shall be
computed in accordance with this rule. If a trial is timely
under the language of this rule, but was delayed by circumstances
not addressed in this rule or CrR 4.1, the pending charge shall
not be dismissed unless the defendant's constitutional right to a
speedy trial was violated.
(5) Related Charges. The computation of the allowable time
for trial of a pending charge shall apply equally to all related charges.
(6) Reporting of Dismissals and Untimely Trials. The court
shall report to the Administrative Office of the Courts, on a
form determined by that office, any case in which
(i) the court dismissed a charge on a determination
pursuant to section (h) that the charge had not been brought to
trial within the time limit required by this rule, or
(ii) the time limits would have been violated absent the
cure period authorized by section (g)
(b) Time for Trial.
(1) Defendant Detained in Jail. A defendant who is detained
in jail shall be brought to trial within the longer of
(i) 60 days after the commencement date specified in this rule, or
(ii) the time specified under subsection (b)(5).
(2) Defendant Not Detained in Jail. A defendant who is not
detained in jail shall be brought to trial within the longer of
(i) 90 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5)
(3) Release of Defendant. If a defendant is released from
jail before the 60-day time limit has expired, the limit shall be
extended to 90 days.
(4) Return to Custody Following Release. If a defendant not
detained in jail at the time the trial date was set is
subsequently returned to custody on the same or related charge,
the 90-day limit shall continue to apply. If the defendant is
detained in jail when trial is reset following a new commencement
date, the 60-day limit shall apply.
(5) Allowable Time After Excluded Period. If any period of
time is excluded pursuant to section (e), the allowable time for
trial shall not expire earlier than 30 days after the end of that
excluded period.
(c) Commencement Date.
(1) Initial Commencement Date. The initial commencement date
shall be the date of arraignment as determined under CrR 4.1.
(2) Resetting of Commencement Date. On occurrence of one of
the following events, a new commencement date shall be
established, and the elapsed time shall be reset to zero. If
more than one of these events occurs, the commencement date shall
be the latest of the dates specified in this subsection.
(i) Waiver. The filing of a written waiver of the
defendant's rights under this rule signed by the defendant. The
new commencement date shall be the date specified in the waiver,
which shall not be earlier than the date on which the waiver was
filed. If no date is specified, the commencement date shall be
the date of the trial contemporaneously or subsequently set by the court.
(ii) Failure to Appear. The failure of the defendant to
appear for any proceeding at which the defendant's presence was
required. The new commencement date shall be the date of the
defendant's next appearance.
(iii) New Trial. The entry of an order granting a
mistrial or new trial or allowing the defendant to withdraw a
plea of guilty. The new commencement date shall be the date the
order is entered.
(iv) Appellate Review or Stay. The acceptance of review
or grant of a stay by an appellate court. The new commencement
date shall be the date of the defendant's appearance that next
follows the receipt by the clerk of the superior court of the
mandate or written order terminating review or stay.
(v) Collateral Proceeding. The entry of an order granting
a new trial pursuant to a personal restraint petition, a habeas
corpus proceeding, or a motion to vacate judgment. The new
commencement date shall be the date of the defendant's appearance
that next follows either the expiration of the time to appeal
such order or the receipt by the clerk of the superior court of
notice of action terminating the collateral proceeding, whichever comes later.
(vi) Change of Venue. The entry of an order granting a
change of venue. The new commencement date shall be the date of the order.
(vii) Disqualification of Counsel. The disqualification
of the defense attorney or prosecuting attorney. The new
commencement date shall be the date of the disqualification.
(d) Trial Settings and Notice---Objections---Loss of Right to Object.
(1) Initial Setting of Trial Date. The court shall, within
15 days of the defendant's actual arraignment in superior court
or at the omnibus hearing, set a date for trial which is within
the time limits prescribed by this rule and notify counsel for
each party of the date set. If a defendant is not represented by
counsel, the notice shall be given to the defendant and may be
mailed to the defendant's last known address. The notice shall
set forth the proper date of the defendant's arraignment and the
date set for trial.
(2) Resetting of Trial Date. When the court determines that
the trial date should be reset for any reason, including but not
limited to the applicability of a new commencement date pursuant
to subsection (c)(2) or a period of exclusion pursuant to section
(e), the court shall set a new date for trial which is within the
time limits prescribed and notify each counsel or party of the date set.
(3) Objection to Trial Setting. A party who objects to the
date set upon the ground that it is not within the time limits
prescribed by this rule must, within 10 days after the notice is
mailed or otherwise given, move that the court set a trial within
those time limits. Such motion shall be promptly noted for
hearing by the moving party in accordance with local procedures.
A party who fails, for any reason, to make such a motion shall
lose the right to object that a trial commenced on such a date is
not within the time limits prescribed by this rule.
(4) Loss of Right to Object. If a trial date is set outside
the time allowed by this rule, but the defendant lost the right
to object to that date pursuant to subsection (d)(3), that date
shall be treated as the last allowable date for trial, subject to
section (g). A later trial date shall be timely only if the
commencement date is reset pursuant to subsection (c)(2) or there
is a subsequent excluded period pursuant to section (e) and subsection (b)(5).
(e) Excluded Periods. The following periods shall be excluded
in computing the time for trial:
(1) Competency Proceedings. All proceedings relating to the
competency of a defendant to stand trial on the pending charge,
beginning on the date when the competency examination is ordered
and terminating when the court enters a written order finding the
defendant to be competent.
(2) Proceedings on Unrelated Charges. Arraignment, pre-
trial proceedings, trial, and sentencing on an unrelated charge.
(3) Continuances. Delay granted by the court pursuant to section (f).
(4) Period between Dismissal and Refiling. The time between
the dismissal of a charge and the refiling of the same or related charge.
(5) Disposition of Related Charge. The period between the
commencement of trial or the entry of a plea of guilty on one
charge and the defendant's arraignment in superior court on a related charge.
(6) Defendant Subject to foreign or Federal Custody or
Conditions. The time during which a defendant is detained in jail
or prison outside the state of Washington or in a federal jail or
prison and the time during which a defendant is subjected to
conditions of release not imposed by a court of the State of Washington.
(7) Juvenile Proceedings. All proceedings in juvenile court.
(8) Unavoidable or Unforeseen Circumstances. Unavoidable or
unforeseen circumstances affecting the time for trial beyond the
control of the court or of the parties. This exclusion also
applies to the cure period of section (g).
(9) Disqualification of Judge. A five-day period of time
commencing with the disqualification of the judge to whom the
case is assigned for trial.
(f) Continuances. Continuances or other delays may be granted as follows:
(1) Written Agreement. Upon written agreement of the
parties, which must be signed by the defendant or all defendants,
the court may continue the trial date to a specified date.
(2) Motion by the Court or a Party. On motion of the court or
a party, the court may continue the trial date to a specified
date when such continuance is required in the administration of
justice and the defendant will not be prejudiced in the
presentation of his or her defense. The motion must be made
before the time for trial has expired. The court must state on
the record or in writing the reasons for the continuance. The
bringing of such motion by or on behalf of any party waives that
party's objection to the requested delay.
(g) Cure Period. The court may continue the case beyond the
limits specified in section (b) on motion of the court or a party
made within five days after the time for trial has expired. Such
a continuance may be granted only once in the case upon a finding
on the record or in writing that the defendant will not be
substantially prejudiced in the presentation of his or her
defense. The period of delay shall be for no more than 14 days
for a defendant detained in jail, or 28 days for a defendant not
detained in jail, from the date that the continuance is granted.
The court may direct the parties to remain in attendance or be on-
call for trial assignment during the cure period.
(h) Dismissal With Prejudice. A charge not brought to trial
within the time limit determined under this rule shall be
dismissed with prejudice. The State shall provide notice of
dismissal to the victim and at the court's discretion shall allow
the victim to address the court regarding the impact of the
crime. No case shall be dismissed for time-to-trial reasons
except as expressly required by this rule, a statute, or the
state or federal constitution.
[Amended effective May 21, 1976; November 17, 1978; August 1, 1980;
September 1, 1986; November 29, 1991; November 7, 1995;
September 1, 2000; September 1, 2001; September 1, 2003.]
CrR
RULE 3.4
PRESENCE OF THE DEFENDANT
(a) When Necessary. The defendant shall be present at the
arraignment, at every stage of the trial including the empaneling of the
jury and the return of the verdict, and at the imposition of sentence,
except as otherwise provided by these rules, or as excused or excluded
by the court for good cause shown.
(b) Effect of Voluntary Absence. The defendant's voluntary absence
after the trial has commenced in his or her presence shall not prevent
continuing the trial to and including the return of the verdict. A
corporation may appear by its lawyer for all purposes. In prosecutions
for offenses punishable by fine only, the court, with the written
consent of the defendant, may permit arraignment, plea, trial and
imposition of sentence in the defendant's absence.
(c) Defendant Not Present. If in any case the defendant is not
present when his or her personal attendance is necessary, the court may
order the clerk to issue a bench warrant for the defendant's arrest,
which may be served as a warrant of arrest in other cases.
(d) Video Conference Proceedings.
(1) Authorization. Preliminary appearances held pursuant to CrR
3.2.1, arraignments held pursuant to this rule and CrR 4.1, bail
hearings held pursuant to CrR 3.2, and trial settings held pursuant to
CrR 3.3, may be conducted by video conference in which all participants
can simultaneously see, hear, and speak with each other. Such
proceedings shall be deemed held in open court and in the defendant's
presence for the purposes of any statute, court rule or policy. All
video conference hearings conducted pursuant to this rule shall be
public, and the public shall be able to simultaneously see and hear all
participants and speak as permitted by the trial court judge. Any party
may request an inperson hearing, which may in the trial court judge's
discretion be granted.
(2) Agreement. Other trial court proceedings including the entry of
a Statement of Defendant on Plea of Guilty as provided for by CrR 4.2
may be conducted by video conference only by agreement of the parties,
either in writing or on the record, and upon the approval of the trial
court judge pursuant to local court rule.
(3) Standards for Video Conference Proceedings. The judge, counsel,
all parties, and the public must be able to see and hear each other
during proceedings, and speak as permitted by the judge. Video
conference facilities must provide for confidential communications
between attorney and client and security sufficient to protect the
safety of all participants and observers. In interpreted proceedings,
the interpreter must be located next to the defendant and the proceeding
must be conducted to assure that the interpreter can hear all
participants.
[Amended effective September 1, 1995; December 28, 1999; April 3, 2001.]
RULE 3.5
CONFESSION PROCEDURE
(a) Requirement for and Time of Hearing. When a statement of the
accused is to be offered in evidence, the judge at the time of the omnibus
hearing shall hold or set the time for a hearing, if not previously held,
for the purpose of determining whether the statement is admissible. A court
reporter or a court approved electronic recording device shall record the
evidence adduced at this hearing.
(b) Duty of Court To Inform Defendant. It shall be the duty of the
court to inform the defendant that: (1) he may, but need not, testify at
the hearing on the circumstances surrounding the statement; (2) if he does
testify at the hearing, he will be subject to cross examination with
respect to the circumstances surrounding the statement and with respect to
his credibility; (3) if he does testify at the hearing, he does not by so
testifying waive his right to remain silent during the trial; and (4) if he
does testify at the hearing, neither this fact nor his testimony at the
hearing shall be mentioned to the jury unless he testifies concerning the
statement at trial.
(c) Duty of Court To Make a Record. After the hearing, the court shall
set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3)
conclusions as to the disputed facts; and (4) conclusion as to whether the
statement is admissible and the reasons therefor.
(d) Rights of Defendant When Statement Is Ruled Admissible. If the
court rules that the statement is admissible, and it is offered in
evidence: (1) the defense may offer evidence or cross-examine the
witnesses, with respect to the statement without waiving an objection to
the admissibility of the statement; (2) unless the defendant testifies at
the trial concerning the statement, no reference shall be made to the fact,
if it be so, that the defendant testified at the preliminary hearing on the
admissibility of the confession; (3) if the defendant becomes a witness on
this issue, he shall be subject to cross examination to the same extent as
would any other witness; and, (4) if the defense raises the issue of
voluntariness under subsection (1) above, the jury shall be instructed that
they may give such weight and credibility to the confession in view of the
surrounding circumstances, as they see fit.
RULE 3.6
SUPPRESSION HEARINGS--DUTY OF COURT
(a) Pleadings. Motions to suppress physical, oral or identification
evidence, other than motion pursuant to rule 3.5, shall be in writing
supported by an affidavit or document setting forth the facts the moving
party anticipates will be elicited at a hearing, and a memorandum of
authorities in support of the motion. Opposing counsel may be ordered to
serve and file a memorandum of authorities in opposition to the motion. The
court shall determine whether an evidentiary hearing is required based upon
the moving papers. If the court determines that no evidentiary hearing is
required, the court shall enter a written order setting forth its reasons.
(b) Hearing. If an evidentiary hearing is conducted, at its conclusion
the court shall enter written findings of fact and conclusions of law.
Adopted 82 Wn.2d 1114 effective July 1, 1973
Amended 89 Wn.2d 1107 effective May 15, 1978
Amended 130 Wn.2d 1102 effective January 2, 1997
RULE CrR 4.1
ARRAIGNMENT
(a) Time.
(1) Defendant Detained in Jail. The defendant shall be arraigned not
later than 14 days after the date the information or indictment is filed in
the adult division of the superior court, if the defendant is (i) detained
in the jail of the county where the charges are pending or (ii) subject to
conditions of release imposed in connection with the same charges.
(2) Defendant Not Detained in Jail. The defendant shall be arraigned
not later than 14 days after that appearance which next follows the filing
of the information or indictment, if the defendant is not detained in that
jail or subject to such conditions of release. Any delay in bringing the
defendant before the court shall not affect the allowable time for
arraignment, regardless of the reason for that delay. For purposes of this
rule, "appearance" has the meaning defined in CrR 3.3(a)(3)(iii).
(b) Objection to Arraignment Date---Loss of Right to Object. A party
who objects to the date of arraignment on the ground that it is not within
the time limits prescribed by this rule must state the objection to the
court at the time of the arraignment. If the court rules that the
objection is correct, it shall establish and announce the proper date of
arraignment. That date shall constitute the arraignment date for purposes
of CrR 3.3. A party who fails to object as required shall lost the right
to object, and the arraignment date shall be conclusively established as
the date upon which the defendant was actually arraigned.
(c) Counsel. If the defendant appears without counsel, the court shall
inform the defendant of his or her right to have counsel before being
arraigned. The court shall inquire if the defendant has counsel. If the
defendant is not represented and is unable to obtain counsel, counsel shall
be assigned by the court, unless otherwise provided.
(d) Waiver of Counsel. If the defendant chooses to proceed without
counsel, the court shall ascertain whether this waiver is made voluntarily,
competently and with knowledge of the consequences. If the court finds the
waiver valid, an appropriate finding shall be entered in the minutes.
Unless the waiver is valid, the court shall not proceed with the
arraignment until counsel is provided. Waiver of counsel at arraignment
shall not preclude the defendant from claiming the right to counsel in
subsequent proceedings in the cause, and the defendant shall be so
informed. If such claim for counsel is not timely, the court shall appoint
counsel but may deny or limit a continuance.
(e) Name. Defendant shall be asked his or her true name. If the
defendant alleges that the true name is one other than that by which he or
she is charged, it must be entered in the minutes of the court, and
subsequent proceedings shall be had by that name or other names relevant to
the proceedings.
(f) Reading. The indictment or information shall be read to defendant,
unless the reading is waived, and a copy shall be given to defendant.
[Adopted effective July 1, 1973; Amended effective September 1, 2003]
Comment
Supersedes RCW 10.40.010, .030, .040; RCW 10.46.030 in part, .040.
4.2 PLEAS (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 4.3
JOINDER OF OFFENSES AND DEFENDANTS
(a) Joinder of Offenses. Two or more offenses may be joined in one
charging document, with each offense stated in a separate count, when the
offenses, whether felonies or misdemeanors or both:
(1) Are of the same or similar character, even if not part of a single
scheme or plan; or
(2) Are based on the same conduct or on a series of acts connected
together or constituting parts of a single scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be joined in the
same charging document:
(1) When each of the defendants is charged with accountability for each
offense included;
(2) When each of the defendants is charged with conspiracy and one or
more of the defendants is also charged with one or more offenses alleged to
be in furtherance of the conspiracy; or
(3) When, even if conspiracy is not charged and all of the defendants
are not charged in each count, it is alleged that the several offenses
charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time, place and occasion
that it would be difficult to separate proof of one charge from proof of
the others.
(c) (Reserved.)
(d) (Reserved.)
(e) Improper Joinder. Improper joinder of offenses or defendants shall
not preclude subsequent prosecution on the same charge for the charge or
defendant improperly joined.
RULE 4.3.1
CONSOLIDATION FOR TRIAL
(a) Consolidation Generally. Offenses or defendants properly joined
under rule 4.3 shall be consolidated for trial unless the court orders
severance pursuant to rule 4.4.
(b) Failure to Join Related Offenses.
(1) Two or more offenses are related offenses, for purposes of this rule,
if they are within the jurisdiction and venue of the same court and are based
on the same conduct.
(2) When a defendant has been charged with two or more related offenses,
the timely motion to consolidate them for trial should be granted unless the
court determines that because the prosecuting attorney does not have
sufficient evidence to warrant trying some of the offenses at that time, or
for some other reason, the ends of justice would be defeated if the motion
were granted. A defendant's failure to so move constitutes a waiver of any
right of consolidation as to related offenses with which the defendant knew he
or she was charged.
(3) A defendant who has been tried for one offense may thereafter move to
dismiss a charge for a related offense, unless a motion for consolidation of
these offenses was previously denied or the right of consolidation was waived
as provided in this rule. The motion to dismiss must be made prior to the
second trial, and shall be granted unless the court determines that because
the prosecuting attorney was unaware of the facts constituting the related
offense or did not have sufficient evidence to warrant trying this offense at
the time of the first trial, or for some other reason, the ends of justice
would be defeated if the motion were granted.
(4) Entry of a plea of guilty to one offense does not bar the subsequent
prosecution of a related offense unless the plea of guilty was entered on the
basis of a plea agreement in which the prosecuting attorney agreed to seek or
not to oppose dismissal of other related charges or not to prosecute other
potential related charges.
(c) Authority of Court To Act on Own Motion. The court may order
consolidation for trial of two or more indictments or informations if the
offenses or defendants could have been joined in a single charging document
under rule 4.3.
[Former Rule 4.3A adopted effective September 1, 1995; redesignated as Rule
4.3.1 effective April 3, 2001.]
RULE 4.4
SEVERANCE OF OFFENSES AND DEFENDANTS
(a) Timeliness of Motion--Waiver.
(1) A defendant's motion for severance of offenses or defendants must be
made before trial, except that a motion for severance may be made before or
at the close of all the evidence if the interests of justice require.
Severance is waived if the motion is not made at the appropriate time.
(2) If a defendant's pretrial motion for severance was overruled he may
renew the motion on the same ground before or at the close of all the
evidence. Severance is waived by failure to renew the motion.
(b) Severance of Offenses. The court, on application of the prosecuting
attorney, or on application of the defendant other than under section (a),
shall grant a severance of offenses whenever before trial or during trial
with consent of the defendant, the court determines that severance will
promote a fair determination of the defendant's guilt or innocence of each
offense.
(c) Severance of Defendants.
(1) A defendant's motion for severance on the ground that an out-of-court
statement of a codefendant referring to him is inadmissible against him
shall be granted unless:
(i) the prosecuting attorney elects not to offer the statement in the
case in chief; or
(ii) deletion of all references to the moving defendant will eliminate
any prejudice to him from the admission of the statement.
(2) The court, on application of the prosecuting attorney, or on
application of the defendant other than under subsection (i), should grant
a severance of defendants whenever:
(i) if before trial, it is deemed necessary to protect a defendant's
rights to a speedy trial, or it is deemed appropriate to promote a fair
determination of the guilt or innocence of a defendant; or
(ii) if during trial upon consent of the severed defendant, it is
deemed necessary to achieve a fair determination of the guilt or innocence
of a defendant.
(3) When such information would assist the court in ruling on a motion
for severance of defendants, the court may order the prosecuting attorney
to disclose any statements made by the defendants which he intends to
introduce in evidence at the trial.
(4) The assignment of a separate cause number to each defendant of those
named on a single charging document is not considered a severance. Should a
defendant desire that the case be severed, the defendant must move for
severance.
(d) Failure To Prove Grounds for Joinder of Defendants. If, pursuant to
section (a), a defendant moves to be severed at the conclusion of the
prosecutions case or of all the evidence, and there is not sufficient
evidence to support the grounds upon which the moving defendant was joined
or previously denied severance, the court shall grant a severance if, in
view of this lack of evidence, failure to sever prejudices the moving
defendant.
(e) Authority of Court To Act on Own Motion. The court may order a
severance of offenses or defendants before trial if a severance could be
obtained on motion of a defendant or the prosecution.
[Amended effective December 28, 1990; September 1, 2007.] Comment
Supersedes RCW 10.46.100.
RULE 4.5
OMNIBUS HEARING
(a) When Required. When a plea of not guilty is entered, the court
shall set a time for an omnibus hearing.
(b) Time. The time set for the omnibus hearing shall allow sufficient
time for counsel to (i) initiate and complete discovery; (ii) conduct
further investigation of the case, as needed; and (iii) continue plea
discussions.
(c) Checklist. At the omnibus hearing, the trial court on its own
initiative, utilizing a checklist substantially in the form of the omnibus
application by plaintiff and defendant (see section (h)) shall:
(i) ensure that standards regarding provision of counsel have been
complied with;
(ii) ascertain whether the parties have completed discovery and, if
not, make orders appropriate to expedite completion;
(iii) make rulings on any motions, other requests then pending, and
ascertain whether any additional motions, or requests will be made at the
hearing or continued portions thereof;
(iv) ascertain whether there are any procedural or constitutional
issues which should be considered;
(v) upon agreement of counsel, or upon a finding that the trial is
likely to be protracted or otherwise unusually complicated, set a time for
a pretrial conference; and
(vi) permit defendant to change his plea.
(d) Motions. All motions and other requests prior to trial should be
reserved for and presented at the omnibus hearing unless the court
otherwise directs. Failure to raise or give notice at the hearing of any
error or issue of which the party concerned has knowledge may constitute
waiver of such error or issue. Checklist forms substantially like the
memorandum required by section (h) shall be made available by the court and
utilized at the hearing to ensure that all requests, errors and issues are
then considered.
(e) Continuance. Any and all issues should be raised either by counsel
or by the court without prior notice, and if appropriate, informally
disposed of. If additional discovery, investigation or preparation, or
evidentiary hearing, or formal presentation is necessary for a fair and
orderly determination of any issue, the omnibus hearing should be continued
from time to time until all matters raised are properly disposed of.
(f) Record. A verbatim record (electronic, mechanical or otherwise),
shall be made of all proceedings at the hearing.
(g) Stipulations. Stipulations by any party shall be binding upon that
party at trial unless set aside or modified by the court in the interests
of justice.
(h) Memorandum. At the conclusion of the hearing, a summary memorandum
shall be made indicating disclosure made, rulings and orders of the court,
stipulations, and any other matters determined or pending. Such summary
memorandum shall be in substantially the following form:
Copy Received Date Filed by Clerk
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
THE STATE OF WASHINGTON, ) No. ______
Plaintiff, )
v. ) OMNIBUS APPLICATION
_______________, ) BY PLAINTIFF
Defendant. ) AND DEFENDANT
Date ____________________.
Notice to ______________________________________________________.
Purpose: To prepare for trial or plea and to determine the extent of
discovery to be granted to each party.
I
MOTION BY DEFENDANT
Comes now the defendant and makes the applications or motions checked
off below:
1. To dismiss for failure of the indictment (of information) to state
an offense. Granted _____ Denied _____.
2. To sever defendant's case and for separate trial.
3. To sever counts and for a separate trial.
4. To make more definite and certain.
5. For discovery of all oral, written or recorded statements made by
defendant to investigating officers or to third parties and in the
possession of the plaintiff.
6. For discovery of the names and addresses of plaintiff's witnesses
and their statements.
7. To inspect physical or documentary evidence in plaintiff's
possession.
8. To suppress physical evidence in plaintiff's possession because of
(1) illegal search, (2) illegal arrest. Hearing set for __________.
9. For a hearing under rule 3.5.
10. To suppress evidence of the identification of the defendant.
11. To take the deposition of witnesses.
12. To secure the appearance of a witness at trial or hearing.
13. To inquire into the conditions of pretrial release. Affirmed
__________ Modified to __________.
To Require the Prosecution
14. To state:
(a) If there was an informer involved;
(b) Whether he will be called as a witness at the trial; and,
(c) To state the name and address of the informer or claim the
privilege.
15. To disclose evidence in plaintiff's possession, favorable to
defendant on the issue of guilt.
16. To disclose whether it will rely on prior acts or convictions of a
similar nature for proof of knowledge or intent.
17. To advise whether any expert witness will be called, and if so,
supply:
(a) Name of witness, qualifications and subject of testimony;
(b) Report.
18. To supply any reports or tests of physical or mental examinations
in the control of the prosecution.
19. To supply any reports of scientific tests, experiments, or
comparisons and other reports to experts in the control of the prosecution,
pertaining to this case.
20. To permit inspection and copying of any books, papers, documents,
photographs or tangible objects which the prosecution:
(a) Obtained from or belonging to the defendant; or
(b) Which will be used at the hearing or trial.
21. To supply any information known concerning a prior conviction of
persons whom the prosecution intends to call as witnesses at the hearing or
trial.
22. To inform the defendant of any information he has indicating
entrapment of the defendant.
Dated this _______ day of ____________________, 19____.
___________________________________
Attorney for Defendant
II
MOTION BY PLAINTIFF
The plaintiff makes the application or motions checked:
1. Defendant to state the general nature of his defense.
2. Defendant to state whether or not he will rely on an alibi and, if
so, to furnish a list of his alibi witnesses and their addresses. Granted
_____ Denied _____.
3. Defendant to state whether or not he will rely on a defense of
insanity at the time of the offense.
(a) If so, defendant to supply the name(s) of his witness(es) on
the issue, both lay and professional.
(b) If so, defendant to permit the prosecution to inspect and copy
all medical reports under his control or the control of his attorney.
(c) Defendant will also state whether or not he will submit to a
psychiatric examination by a doctor selected by the prosecution.
4. Defendant to furnish results of scientific tests, experiments or
comparisons and the names of persons who conducted the tests.
5. Defendant to appear in a lineup.
6. Defendant to speak for voice identification by witnesses.
7. Defendant to be fingerprinted.
8. Defendant to pose for photographs (not involving a reenactment of
the crime).
9. Defendant to try on articles of clothing.
10. Defendant to permit taking of specimens of material under
fingernails.
11. Defendant to permit taking samples of blood, hair and other
materials of his body which involve no unreasonable intrusion thereof.
12. Defendant to provide samples of his handwriting.
13. Defendant to submit to a physical external inspection of his body.
14. Defendant to state whether there is any claim of incompetency to
stand trial.
15. For discovery of the names and addresses of defendant's witnesses
and their statements.
16. To inspect physical or documentary evidence in defendant's
possession.
17. To take the deposition(s) of witness(es).
18. To secure the appearance of a witness at trial or hearing.
19. Defendant to state whether his prior convictions will be stipulated
or need be proved.
20. Defendant to state whether he will stipulate to the continuous
chain of custody of evidence from acquisition to trial.
Dated this _______ day of ____________________, 19____.
_______________________________
Prosecuting Attorney
It is so ordered this _______ day of ___________________, 19____.
___________________________________
Judge
Comment
Supersedes RCW 10.46.030 in part.
RULE CrR 4.6
DEPOSITIONS
(a) When Taken. The Court may order a deposition when (1) the court finds
that a prospective witness may be unable to attend or prevented from attending
a trial or hearing, (2) a witness refuses to discuss the case with either
counsel and the witness' testimony is material and necessary, or (3) there is
good cause shown to take the deposition. The court at any time after arraignment
may upon motion of a party and notice to the parties, order a deposition and
require that any designated books, papers, documents or tangible objects, not
privileged, be produced at the same time and place. A witness who is sought to
be deposed, or a party, may seek a protective order as provided in the Civil Rules.
(b) Notice of Taking. The party at whose instance a deposition is to be taken
shall give to every other party reasonable written notice of the time and place for
taking the deposition. The notice shall state the name and address of each person
to be examined. On motion of a party upon whom the notice is served, the court for
cause shown may extend or shorten the time and may change the place of taking.
(c) How Taken. A deposition shall be taken in the manner provided in civil actions.
No deposition shall be used in evidence against any defendant who has not had notice
of and an opportunity to participate in or be present at the taking thereof.
(d) Use. Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of the deponent as witness, or as substantive evidence
under circumstances permitted by the Rules of Evidence.
(e) Objections to Admissibility. Objections to receiving in evidence a
deposition or part thereof may be made as provided in civil actions.
[Amended effective September 1, 1983; September 1, 2012.]
RULE CrR 4.7
DISCOVERY
(a) Prosecutors Obligations.
(1) Except as otherwise provided by protective orders or as to
matters not subject to disclosure, the prosecuting attorney shall
disclose to the defendant the following material and information
within the prosecuting attorney's possession or control no later
than the omnibus hearing:
(i) the names and addresses of persons whom the prosecuting
attorney intends to call as witnesses at the hearing or trial,
together with any written or recorded statements and the
substance of any oral statements of such witnesses;
(ii) any written or recorded statements and the substance of
any oral statements made by the defendant, or made by a
codefendant if the trial is to be a joint one;
(iii) when authorized by the court, those portions of grand
jury minutes containing testimony of the defendant, relevant
testimony of persons whom the prosecuting attorney intends to
call as witnesses at the hearing or trial, and any relevant
testimony that has not been transcribed;
(iv) any reports or statements of experts made in connection
with the particular case, including results of physical or mental
examinations and scientific tests, experiments, or comparisons;
(v) any books, papers, documents, photographs, or tangible
objects, which the prosecuting attorney intends to use in the
hearing or trial or which were obtained from or belonged to the
defendant; and
(vi) any record of prior criminal convictions known to the
prosecuting attorney of the defendant and of persons whom the
prosecuting attorney intends to call as witnesses at the hearing
or trial.
(2) The prosecuting attorney shall disclose to the defendant:
(i) any electronic surveillance, including wiretapping, of
the defendant's premises or conversations to which the defendant
was a party and any record thereof;
(ii) any expert witnesses whom the prosecuting attorney will
call at the hearing or trial, the subject of their testimony, and
any reports they have submitted to the prosecuting attorney;
(iii) any information which the prosecuting attorney has
indicating entrapment of the defendant.
(3) Except as is otherwise provided as to protective orders,
the prosecuting attorney shall disclose to defendant's counsel
any material or information within the prosecuting attorney's
knowledge which tends to negate defendant's guilt as to the
offense charged.
(4) The prosecuting attorney's obligation under this section is
limited to material and information within the knowledge,
possession or control of members of the prosecuting attorney's
staff.
(b) Defendant's Obligations.
(1) Except as is otherwise provided as to matters not subject
to disclosure and protective orders, the defendant shall disclose
to the prosecuting attorney the following material and
information within the defendant's control no later than the
omnibus hearing: the names and addresses of persons whom the
defendant intends to call as witnesses at the hearing or trial,
together with any written or recorded statements and the
substance of any oral statements of such witness.
(2) Notwithstanding the initiation of judicial proceedings, and
subject to constitutional limitations, the court on motion of the
prosecuting attorney or the defendant, may require or allow the
defendant to:
(i) appear in a lineup;
(ii) speak for identification by a witness to an offense;
(iii) be fingerprinted;
(iv) pose for photographs not involving reenactment of the
crime charged;
(v) try on articles of clothing;
(vi) permit the taking of samples of or from the defendant's
blood, hair, and other materials of the defendant's body
including materials under the defendant's fingernails which
involve no unreasonable intrusion thereof;
(vii) provide specimens of the defendant's handwriting;
(viii) submit to a reasonable physical, medical, or
psychiatric inspection or examination;
(ix) state whether there is any claim of incompetency to
stand trial;
(x) allow inspection of physical or documentary evidence in
defendant's possession;
(xi) state whether the defendant's prior convictions will be
stipulated or need to be proved;
(xii) state whether or not the defendant will rely on an
alibi and, if so, furnish a list of alibi witnesses and their
addresses;
(xiii) state whether or not the defendant will rely on a
defense of insanity at the time of the offense;
(xiv) state the general nature of the defense.
(3) Provisions may be made for appearance for the foregoing
purposes in an order for pretrial release.
(c) Additional Disclosures Upon Request and Specification. Except
as is otherwise provided as to matters not subject to disclosure
the prosecuting attorney shall, upon request of the defendant,
disclose any relevant material and information regarding:
(1) Specified searches and seizures;
(2) The acquisition of specified statements from the defendant;
and
(3) The relationship, if any, of specified persons to the
prosecuting authority.
(d) Material Held by Others. Upon defendant's request and
designation of material or information in the knowledge,
possession or control of other persons which would be
discoverable if in the knowledge, possession or control of the
prosecuting attorney, the prosecuting attorney shall attempt to
cause such material or information to be made available to the
defendant. If the prosecuting attorney's efforts are unsuccessful
and if such material or persons are subject to the jurisdiction
of the court, the court shall issue suitable subpoenas or orders
to cause such material to be made available to the defendant.
(e) Discretionary Disclosures.
(1) Upon a showing of materiality to the preparation of the
defense, and if the request is reasonable, the court in its
discretion may require disclosure to the defendant of the
relevant material and information not covered by sections (a),
(c) and (d).
(2) The court may condition or deny disclosure authorized by
this rule if it finds that there is a substantial risk to any
person of physical harm, intimidation, bribery, economic
reprisals or unnecessary annoyance or embarrassment, resulting
from such disclosure, which outweigh any usefulness of the
disclosure to the defendant.
(f) Matters Not Subject to Disclosure.
(1) Work Product. Disclosure shall not be required of legal
research or of records, correspondence, reports or memoranda to
the extent that they contain the opinions, theories or
conclusions of investigating or prosecuting agencies except as to
material discoverable under subsection (a)(1)(iv).
(2) Informants. Disclosure of an informants identity shall not
be required where the informants identity is a prosecution secret
and a failure to disclose will not infringe upon the
constitutional rights of the defendant. Disclosure of the
identity of witnesses to be produced at a hearing or trial shall
not be denied.
(g) Medical and Scientific Reports. Subject to constitutional
limitations, the court may require the defendant to disclose any
reports or results, or testimony relative thereto, of physical or
mental examinations or of scientific tests, experiments or
comparisons, or any other reports or statements of experts which
the defendant intends to use at a hearing or trial.
(h) Regulation of Discovery.
(1) Investigations Not To Be Impeded. Except as is otherwise
provided with respect to protective orders and matters not
subject to disclosure, neither the counsel for the parties nor
other prosecution or defense personnel shall advise persons other
than the defendant having relevant material or information to
refrain from discussing the case with opposing counsel or showing
opposing counsel any relevant material, nor shall they otherwise
impede opposing counsels investigation of the case.
(2) Continuing Duty To Disclose. If, after compliance with
these rules or orders pursuant thereto, a party discovers
additional material or information which is subject to
disclosure, the party shall promptly notify the other party or
their counsel of the existence of such additional material, and
if the additional material or information is discovered during
trial, the court shall also be notified.
(3) Custody of Materials. Any materials furnished to an
attorney pursuant to these rules shall remain in the exclusive
custody of the attorney and be used only for the purposes of
conducting the party's side of the case, unless otherwise agreed
by the parties or ordered by the court, and shall be subject to
such other terms and conditions as the parties may agree or the
court may provide. Further, a defense attorney shall be permitted
to provide a copy of the materials to the defendant after making
appropriate redactions which are approved by the prosecuting
authority or order of the court.
(4) Protective Orders. Upon a showing of cause, the court may
at any time order that specified disclosure be restricted or
deferred, or make such other order as is appropriate, provided
that all material and information to which a party is entitled
must be disclosed in time to permit the party's counsel to make
beneficial use thereof.
(5) Excision. When some parts of certain material are
discoverable under this rule, and other parts not discoverable,
as much of the material shall be disclosed as is consistent with
this rule. Material excised pursuant to judicial order shall be
sealed and preserved in the records of the court, to be made
available to the appellate court in the event of an appeal.
(6) In Camera Proceedings. Upon request of any person, the
court may permit any showing of cause for denial or regulation of
disclosure, or portion of such showing, to be made in camera. A
record shall be made of such proceedings. If the court enters an
order granting relief following a showing in camera, the entire
record of such showing shall be sealed and preserved in the
records of the court, to be made available to the appellate court
in the event of an appeal.
(7) Sanctions.
(i) If at any time during the course of the proceedings it
is brought to the attention of the court that a party has failed
to comply with an applicable discovery rule or an order issued
pursuant thereto, the court may order such party to permit the
discovery of material and information not previously disclosed,
grant a continuance, dismiss the action or enter such other order
as it deems just under the circumstances.
(ii) Willful violation by counsel of an applicable discovery
rule or an order issued pursuant thereto may subject counsel to
appropriate sanctions by the court.
[Amended effective September 1, 1986; September 1, 2005;
September 1, 2007.]
Comment Supersedes RCW 10.37.030, .033; RCW 10.46.030 in part.
RULE CrR 4.8
SUBPOENAS
a) For Attendance of Witnesses at Hearing or Trial. A subpoena commanding
a person to attend and give testimony at a hearing or at trial ("a subpoena
for testimony") shall be issued as follows:
(1) Form; Issuance.
(A) A subpoena for testimony shall (i) state the title of the action, the
case number, the name of the court in which the action is pending, and, if
different, the name of the court from which the subpoena is issued; and (ii)
command each person to whom it is directed to attend and give testimony at a
specified time and place.
(B) The court in which the action is pending or before which attendance is
required may issue a subpoena for testimony under the seal of that court, or
the clerk may issue the subpoena for testimony in response to a praecipe. An
attorney for a party also may sign and issue a subpoena for testimony.
(C) A command to a person to produce evidence or to permit inspection may
be joined with a subpoena for testimony or may be issued separately under
section (b) of this rule.
(2) Notice. Notice to each party of the issuance of a subpoena for
testimony is not required; provided that, when a subpoena for testimony also
commands the person to whom it is directed to produce evidence or to permit
inspection of things, the serving party shall give advance notice of such
subpoena in the manner described in subsection (b) of this rule.
(3) Service-How Made. A subpoena for testimony may be served by any
suitable person over 18 years of age, by giving the witness a copy thereof, or
by leaving a copy at the witness's dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein. When
service is made by any person other than an officer authorized to serve
process, proof of service shall be made by affidavit or declaration. A
subpoena for testimony may also be served by first-class mail, postage
prepaid, together with a waiver of personal service and instructions for
returning such waiver to the attorney of record of the party to the action in
whose behalf the witness is required to appear. Service by mail shall be
deemed complete upon the filing of the returned waiver of personal service,
signed in affidavit or declaration form.
(4) When Witness Excused. A witness subpoenaed to attend a hearing or trial
is excused from further attendance as soon as the witness has given testimony
in chief and has been cross-examined thereon, unless a party moves in open
court that the witness remain in attendance and the court so orders. Witness
fees will not be allowed any witness after the day on which the witness's
testimony is given, except when the witness has in open court been required to
remain in further attendance, and when so required the clerk shall note that
fact in the minutes.
(b) For Producing Evidence or Permitting Inspection. A subpoena commanding
a person to produce and permit inspection and copying of designated documents,
tangible things, or premises in the possession, custody, or control of that
person ("a subpoena for production") shall be issued as follows:
(1) Form; Issuance.
(A) A subpoena for production shall (i) state the title of the action, the
case number, the name of the court in which the action is pending, and, if
different, the name of the court from which the subpoena is issued;
(ii) command each person to whom it is directed to produce and permit
inspection and copying of documentary evidence, tangible things, or premises
in the possession, custody, or control of that person at a specified time and
place; and (iii) set forth the text of subsection (b)(4) of this rule.
(B) The court in which the action is pending or before which attendance is
required may issue a subpoena for production under the seal of that court or
the clerk may issue the subpoena in response to a praecipe. An attorney for a
party also may sign and issue a subpoena for production.
(C) A subpoena for production may be joined with a subpoena for testimony,
or it may be issued separately, provided that a subpoena to inspect premises
may not be combined with other subpoenas issued pursuant to this rule.
(2) Notice. Notice to parties of the issuance of a subpoena for production
is not required; provided that, whenever a party intends to serve a subpoena
for production seeking evidence or inspection of things or premises belonging
or pertaining to a defendant who is not the party seeking or issuing the
subpoena, then the serving party must give all parties advance notice; and
provided that, whenever any party intends to serve a subpoena for production
seeking evidence or inspection of things belonging or pertaining to an alleged
victim or complaining witness, then the serving party shall provide advance
notice to all parties and to the alleged victim or complaining witness; and
provided that a subpoena for inspection of premises must be signed by the court
and only after good cause is shown and advance notice is provided to all
parties and the owner or occupier of the premises.
(A) Time and Manner. If advance notice is required under this rule, then no
fewer than five days prior to service on the person named in the subpoena for
production, notice shall be provided in the manner prescribed by CR 5(b). The
parties may agree to shorten the time for advance notice when a subpoena seeks
solely evidence or tangible things belonging or pertaining to a defendant. The
court may shorten the time for advance notice upon a showing of good cause by a
party; provided that, any alleged victim or complaining witness whose evidence,
tangible things, or premises are sought shall receive notice and an opportunity
to be heard on any motion to shorten time.
(B) Court May Excuse Notice. A court on ex parte motion may excuse
compliance with the advance notice requirement upon the serving party's
showing of good cause; any such court order, along with a copy of the subpoena
for which notice is excused, shall be filed under seal pursuant to GR 15.
(3) Service-How Made. A subpoena for production shall be served in the
manner prescribed in CR 5(b); provided that, if the subpoena for production is
joined with a subpoena for testimony, then subsection (a)(3) of this rule
shall govern service.
(4) Protection of Persons Subject to Subpoena for Production. On timely
motion, the court may quash or modify a subpoena for production if it (A)
fails to allow reasonable time for compliance; (B) requires disclosure of
privileged or other protected matter and no exception or waiver applies; (C)
is unreasonable, oppressive, or unduly burdensome; or (D) exceeds the scope of
discovery otherwise permitted under the criminal rules. The court may
condition denial of a motion to quash or modify upon the advancement by the
party on whose behalf the subpoena for production is issued of the reasonable
cost of producing the books, papers, documents, tangible things, or premises.
(5) Applicability of Other Notice and Privacy Provisions. The provisions
of this rule do not modify or limit privacy protections and notice
requirements provided by court rule, statute, regulation, or other applicable law.
(c) Contempt. Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the court from
which the subpoena issued.
[Adopted effective July 1, 1973; amended effective December 28, 2010.]
RULE 4.9
PRETRIAL CONFERENCE
(RESCINDED)
RULE 4.10
MATERIAL WITNESS
(a) Warrant. On motion of the prosecuting attorney or the defendant,
the court may issue a warrant, subject to reasonable bail, for the arrest
of a material witness. The warrant shall issue only on a showing, by
affidavit or on the record in open court, that the testimony of the witness
is material and that
(1) The witness has refused to submit to a deposition ordered by the
court pursuant to rule 4.6; or
(2) The witness has refused to obey a lawfully issued subpoena; or
(3) It may become impracticable to secure the presence of the witness
by subpoena.
Unless otherwise ordered by the court, the warrant shall be executed
and returned as in rule 2.2.
(b) Hearing. After the arrest of the witness, the court shall hold a
hearing no later than the next judicial day after the witness is present in
the county from which the warrant issued. The witness shall be entitled to
be represented by a lawyer. The court shall appoint a lawyer for an
indigent witness if it is required to protect the rights of the witness.
(c) Release/Detention. Upon a determination that the testimony of the
witness is material and that one of the conditions set forth in section (a)
exists, the court shall set conditions for release of the witness pursuant
to rule 3.2. A material witness shall be released unless the court
determines that the testimony of such witness cannot be secured adequately
by deposition and that further detention is necessary to prevent a failure
of justice. Release of a material witness may be delayed for a reasonable
period of time until the deposition of the witness can be taken pursuant to
rule 4.6.
RULE 5.1
COMMENCEMENT OF ACTIONS
(a) Where Commenced. All actions shall be commenced:
(1) In the county where the offense was committed;
(2) In any county wherein an element of the offense was committed or
occurred.
(b) Two or More Counties. When there is reasonable doubt whether an
offense has been committed in one of two or more counties, the action may
be commenced in any such county.
(c) Right To Change. When a case is filed pursuant to section (b) of
this rule, the defendant shall have the right to change venue to any other
county in which the offense may have been committed. Any objection to venue
must be made as soon after the initial pleading is filed as the defendant
has knowledge upon which to make it.
Comment
Supersedes RCW 10.25.010, .020, .030, .040, .050, .060, .110.
RULE 5.2
CHANGE OF VENUE
(a) When Ordered--Improper County. The court shall order a change of
venue upon motion and showing that the action has not been prosecuted in
the proper county.
(b) When Ordered--On Motion of Party. The court may order a change of
venue to any county in the state:
(1) Upon written agreement of the prosecuting attorney and the
defendant;
(2) Upon motion of the defendant, supported by affidavit that he
believes he cannot receive a fair trial in the county where the action is
pending.
(c) Discharge of Jury. When the court orders a change of venue it shall
discharge the jury, if any, without prejudice to the prosecution, and
direct that all the papers and proceedings be certified to the superior
court of the proper county and direct the defendant and the witnesses to
appear at such court.
Comment
Supersedes RCW 10.25.080, .090, .100; RCW 10.46.180.
Comment
RCW 10.46.070 is superseded in part by all of CrR 6.
RULE 6.1
TRIAL BY JURY OR BY THE COURT
(a) Trial by Jury. Cases required to be tried by jury shall be so tried
unless the defendant files a written waiver of a jury trial, and has
consent of the court.
(b) Number of Jurors. Unless otherwise provided by these rules, the
number of persons serving on a jury shall be 12, not including alternates.
If prior to trial on a noncapital case all defendants so elect, the case
shall be tried by a jury of not less than six, or by the court.
(c) Juror Unable To Continue. If a case has not yet been submitted to
the jury and a juror is unable to continue and no alternate jurors were
selected or none are available, or if a case has been submitted to the jury
and a juror is unable to continue, all defendants may elect to continue
with the remaining jurors. The court shall declare a mistrial for any
defendant who does not elect to continue with the remaining jurors. If
some, but not all, defendants elect to continue with the trial, the court
shall proceed with the trial for those defendants unless the court
determines manifest necessity requires a mistrial.
(d) Trial Without Jury. In a case tried without a jury, the court shall
enter findings of fact and conclusions of law. In giving the decision, the
facts found and the conclusions of law shall be separately stated. The
court shall enter such findings of fact and conclusions of law only upon 5
days' notice of presentation to the parties.
Comment
Supersedes RCW 10.49.020.
RULE 6.2
JURORS' ORIENTATION
All jurors will be given a general orientation when they report for
duty.
(a) Juror Handbook. A copy of the Jurors Handbook to Washington Courts
prepared by the Superior Court Judges' Association of the State of
Washington and the Washington State Magistrates Association shall be
provided to all petit jurors by the court in which they are to serve.
(b) Juror Information Sheet. Prior to the commencement of a petit
jurors term of service, a juror information sheet shall be furnished to the
juror by the court in which the person is to serve. The format of the
information sheet shall be consistent with recommendations of the
Administrator for the Courts.
RULE CrR 6.3
SELECTING THE JURY
When the action is called for trial, the jurors shall be
selected at random from the jurors summoned who have appeared and
have not been excused.
[Amended effective September 1, 1993.]
RULE 6.4
CHALLENGES
(a) Challenges to the Entire Panel. Challenges to the entire
panel shall only be sustained for a material departure from the
procedures prescribed by law for their selection.
(b) Voir Dire. A voir dire examination shall be conducted for
the purpose of discovering any basis for challenge for cause and
for the purpose of gaining knowledge to enable an intelligent
exercise of peremptory challenges. The judge shall initiate the
voir dire examination by identifying the parties and their
respective counsel and by briefly outlining the nature of the
case. The judge and counsel may then ask the prospective jurors
questions touching their qualifications to serve as jurors in the
case, subject to the supervision of the court as appropriate to
the facts of the case.
(c) Challenges for Cause.
(1) If the judge after examination of any juror is of the
opinion that grounds for challenge are present, he or she shall
excuse that juror from the trial of the case. If the judge does
not excuse the juror, any party may challenge the juror for
cause.
(2) RCW 4.44.150 through 4.44.200 shall govern challenges for
cause.
(d) Exceptions to Challenge.
(1) Determination. The challenge may be excepted to by the
adverse party for insufficiency and, if so, the court shall
determine the sufficiency thereof, assuming the facts alleged
therein to be true. The challenge may be denied by the adverse
party and, if so, the court shall try the issue and determine the
law and the facts.
(2) Trial of Challenge. Upon trial of a challenge, the Rules
of Evidence applicable to testimony offered upon the trial of an
ordinary issue of fact shall govern. The juror challenged, or any
other person otherwise competent, may be examined as a witness by
either party. If a challenge be determined to be sufficient, or
if found to be true, as the case may be, it shall be allowed, and
the juror
to whom it was taken excluded; but if not so determined or found
otherwise, it shall be disallowed.
(e) Peremptory Challenges.
(1) Peremptory Challenges Defined. A peremptory challenge is
an objection to a juror for which there is no reason given, but
upon which the court shall exclude the juror. In prosecutions for
capital offenses the defense and the state may challenge
peremptorily 12 jurors each; in prosecution for offenses
punishable by imprisonment in the state Department of Corrections
6 jurors each; in all other prosecutions, 3 jurors each. When
several defendants are on trial together, each defendant shall be
entitled to one challenge in addition to the number of challenges
provided above, with discretion in the trial judge to afford the
prosecution such additional challenges as circumstances warrant.
(2) Peremptory Challenges--How Taken. After prospective
jurors have been passed for cause, peremptory challenges shall be
exercised alternately first by the prosecution then by each
defendant until the peremptory challenges are exhausted or the
jury accepted. Acceptance of the jury as presently constituted
shall not waive any remaining peremptory challenges to jurors
subsequently called.
Comment
Supersedes RCW 10.49.030, .040, .050, .060.
Amended Effective December 26, 2000
RULE 6.5
ALTERNATE JURORS
When the jury is selected the court may direct the selection of one or
more additional jurors, in its discretion, to be known as alternate jurors.
Each party shall be entitled to one peremptory challenge for each alternate
juror to be selected. When several defendants are on trial together, each
defendant shall be entitled to one challenge in addition to the challenge
provided above, with discretion in the trial judge to afford the
prosecution such additional challenges as circumstances warrant. If at any
time before submission of the case to the jury a juror is found unable to
perform the duties the court shall order the juror discharged, and the
clerk shall draw the name of an alternate who shall take the jurors place
on the jury.
Alternate jurors who do not replace a regular juror may be discharged
or temporarily excused after the jury retires to consider its verdict. When
jurors are temporarily excused but not discharged, the trial judge shall
take appropriate steps to protect alternate jurors from influence,
interference or publicity, which might affect that jurors ability to remain
impartial and the trial judge may conduct brief voir dire before seating
such alternate juror for any trial or deliberations. Such alternate juror
may be recalled at any time that a regular juror is unable to serve,
including a second phase of any trial that is bifurcated. If the jury has
commenced deliberations prior to replacement of an initial juror with an
alternate juror, the jury shall be instructed to disregard all previous
deliberations and begin deliberations anew.
Comment
Supersedes RCW 10.49.070.
RULE 6.6
JURORS' OATH
The jury shall be sworn or affirmed well and truly to try the issue
between the State and the defendant, according to the evidence and
instructions by the court.
Comment
Supersedes RCW 10.49.100.
RULE 6.7
CUSTODY OF JURY
(a) Generally. During trial and deliberations the jury may be allowed
to separate unless good cause is shown, on the record, for sequestration of
the jury.
(b) Communication Restricted. Unless the jury is allowed to separate,
the jurors shall be kept together under the charge of one or more officers
until they agree upon their verdict or are discharged by the court. The
officer shall keep the jurors separate from other persons and shall not
allow any communication which may affect the case to be made to the jurors,
nor make any himself, unless by order of the court, except to ask the
jurors if they have agreed upon their verdict. The officer shall not,
before the verdict is rendered, communicate to any person the state of the
jurors' deliberations or their verdict.
(c) Motions. Any motions or proceedings concerning the separation or
sequestration of the jury shall be made out of the presence of the jury.
RULE CrR 6.8
NOTE TAKING BY JURORS
In all cases, jurors shall be allowed to take written
notes regarding the evidence presented to them and keep
these notes with them during their deliberation. The court
may allow jurors to keep these notes with them in the jury
room during recesses, in which case jurors may review their
own notes but may not share or discuss the notes with other
jurors until they begin deliberating. Such notes should be
treated as confidential between the jurors making them and
their fellow jurors, and shall be destroyed immediately
after the verdict is rendered.
[Adopted effective July 1, 1973; amended effective October 1, 2002.]
RULE 6.9
VIEW OF PREMISES BY JURY
The court may allow the jury to view the place in which any material
fact occurred. In such event it shall order the jury to be conducted in a
body, in the custody of a proper officer of the court to the place which
shall be shown to them by the judge. The defendant shall be present at the
view. During the view, no person other than the judge or person authorized
by him shall speak to the jury on any subject relating to the trial.
RULE 6.10
DISCHARGE OF JURY
The jury may be discharged by the court on consent of both parties or
when it appears that there is no reasonable probability of their reaching
agreement.
RULE 6.11
JUDGE--DISABILITY
(a) Disability of Judge During Jury Trial. If, before the
judge submits the case to the jury, he or she is unable to
continue with the trial, any other judge assigned to or regularly
sitting in the court, upon becoming familiar with the record of
the trial, may proceed with the trial. Upon defendant's objection
to the replacement, a mistrial shall be granted. If, after the
judge submits the case to the jury, he or she is unable to
continue, the case shall proceed before another judge.
(b) Disability of Judge During Nonjury Trial. If a judge
before whom trial without jury has commenced is unable to proceed
with the trial, a mistrial shall be granted.
Amended Effective December 26, 2000
RULE 6.12
WITNESSES
(a) Who May Testify. Any person may be a witness in any
action or proceeding under these rules except as hereinafter
provided or as provided in the Rules of Evidence.
(b) When Excused. A witness subpoenaed to attend in a
criminal case is dismissed and excused from further attendance as
soon as he or she has given his or her testimony in chief and has
been cross-examined thereon, unless either party makes requests
in open court that the witness remain in attendance; and witness
fees will not be allowed any witness after the day on which his
or her testimony is given, except when the witness has in open
court been required to remain in further attendance, and when so
required the clerk shall note that fact in his or her journal.
(c) Persons Incompetent To Testify. The following persons are
incompetent to testify: (1) Those who are of unsound mind, or
intoxicated at the time of their production for examination; and
(2) children who do not have the capacity of receiving just
impressions of the facts about which they are examined or who do
not have the capacity of relating them truly. This shall not
affect any recognized privileges.
(d) Not Excluded on Grounds of Interest. No person offered as
a witness shall be excluded from giving evidence by reason of his
or her interest in the result of the action, as a party thereto
or otherwise, but such interest may be shown to affect his or her
credibility.
Comment
See RCW 10.01.130.
Amended Effective December 26, 2000
RULE 6.13
TESTIMONY IN LIEU OF WITNESSES
(a) Deposition. Upon a determination that the testimony of a
witness is material, and that it appears probable that the
witness will not voluntarily appear at the trial, the court may
order the taking of his or her deposition. Pending the taking of
the deposition the provisions of CrR 3.2 shall apply.
(b) Test Report by Expert.
(1) Certification Required. Subject to subsection (b)(3) of
this rule, the official written report of an expert witness which
contains the results of any test of a substance or object which
are relevant to an issue in a trial shall be admitted in evidence
without further proof or foundation as prima facie evidence of
the facts stated in the report if the report bears or has
attached a certification stating that the certifier has performed
a test on the substance or object in question, the name of the
person from whom the substance or object was received, the
certificate is attached to a true and complete copy of the
certifiers official report, the report was made by the certifier,
and the qualifications of the certifier to make such tests. The
certificate shall be signed by the certifier with the title of
his office and his business address and telephone number.
(2) Form. The certificate shall be in substantially the
following form:
The undersigned certifies under penalty of perjury that:
1. He performed a test on the (substance) (object) in
question;
2. The person from whom he received the (substance) (object)
in question is ______________;
3. The document on which this certificate appears or to which
it is attached is a true and complete copy of my official report;
and
4. Such document is a report of the results of a test which
report and test were made by the undersigned who has the
following qualifications and experience:
___________________________________________________________.
___________________________________________________________.
___________________________________
Signature
___________________________________
Title
___________________________________
Business Address and Telephone
(3) Notice Requirements. The court shall exclude such report
if:
(i) a copy of the report and certificate has not been served
on the defendant or the defendant's attorney at least 15 days
prior to the trial date or, upon a showing of cause, such lesser
time as the court deems proper; or
(ii) in the case of an unrepresented defendant, a copy of
this rule in addition to a copy of the report and certificate has
not been served on the defendant at least 15 days prior to the
trial date or, upon a showing of cause, such lesser time as the
court deems proper; or
(iii) at least 7 days prior to the trial date or, upon a
showing of cause, such lesser time as the court deems proper, the
defendant has served a written demand upon the prosecutor to
produce the expert witness at the trial.
Amended Effective December 26, 2000
RULE 6.14
IMMUNITY
In any case the court on motion of the prosecuting attorney
may order that a witness shall not be excused from giving
testimony or producing any papers, documents or things, on the
ground that such testimony may tend to incriminate or subject the
witness to a penalty or forfeiture; but the witness shall not be
prosecuted or subjected to criminal penalty or forfeiture for or
on account of any transaction, matter, or fact concerning which
the witness has been ordered to testify pursuant to this rule.
The witness may nevertheless be prosecuted for failing to comply
with the order to answer, or for perjury or the giving of false
evidence.
Amended Effective December 26, 2000
RULE CrR 6.15
INSTRUCTIONS AND ARGUMENT
(a) Proposed Instructions. Proposed jury instructions shall
be served and filed when a case is called for trial by serving
one copy upon counsel for each party, by filing one copy with the
clerk, and by delivering the original and one additional copy for
each party to the trial judge. Additional instructions, which
could not be reasonably anticipated, shall be served and filed at
any time before the court has instructed the jury.
Not less than 10 days before the date of trial, the court may
order counsel to serve and file proposed instructions not less
than 3 days before the trial date.
Each proposed instruction shall be on a separate sheet of
paper. The original shall not be numbered nor include citations
of authority.
Any superior court may adopt special rules permitting certain
instructions to be requested by number from any published book of
instructions.
(b) (Reserved.)
(c) Objection to Instructions. Before instructing the jury,
the court shall supply counsel with copies of the proposed
numbered instructions, verdict and special finding forms. The
court shall afford to counsel an opportunity in the absence of
the jury to object to the giving of any instructions and the
refusal to give a requested instruction or submission of a
verdict or special finding form. The party objecting shall state
the reasons for the objection, specifying the number, paragraph,
and particular part of the instruction to be given or refused.
The court shall provide counsel for each party with a copy of the
instructions in their final form.
(d) Instructing the Jury and Argument of Counsel. The court
shall read the instructions to the jury. The prosecution may then
address the jury after which the defense may address the jury
followed by the prosecutions rebuttal.
(e) Deliberation. After argument, the jury shall retire to
consider the verdict. The jury shall take with it the
instructions given, all exhibits received in evidence and a
verdict form or forms.
(f) Questions from Jury During Deliberations.
(1) The jury shall be instructed that any question it wishes
to ask the court about the instructions or evidence should be
signed, dated and submitted in writing to the bailiff. The court
shall notify the parties of the contents of the questions and
provide them an opportunity to comment upon an appropriate
response. Written questions from the jury, the court’s response
and any objections thereto shall be made a part of the record.
The court shall respond to all questions from a deliberating jury
in open court or in writing. In its discretion, the court may
grant a jury’s request to rehear or replay evidence, but should
do so in a way that is least likely to be seen as a comment on
the evidence, in a way that is not unfairly prejudicial and in a
way that minimizes the possibility that jurors will give undue
weight to such evidence. Any additional instruction upon any
point of law shall be given in writing.
(2) After jury deliberations have begun, the court shall not
instruct the jury in such a way as to suggest the need for
agreement, the consequences of no agreement, or the length of
time a jury will be required to deliberate.
(g) Several Offenses. The verdict forms for an offense
charged or necessarily included in the offense charged or an
attempt to commit either the offense charged or any offense
necessarily included therein may be submitted to the jury.
[Amended effective January 2, 1974; September 1, 1986;
amended effective October 1, 2002]
CrR 6.16
VERDICTS AND FINDINGS
(a) Verdicts.
(1) Several Defendants. If there are two or more defendants, the jury at
any time during its deliberations may return a verdict or verdicts with respect
to a defendant or defendants as to whom it has agreed; if a jury cannot agree
with respect to all, the defendant or defendants as to whom it does not agree
may be tried again.
(2) Return of Verdict. When all members of the jury agree upon a verdict,
the presiding juror shall complete and sign the verdict form and return it to
the judge in open court.
(3) Poll of Jurors. When a verdict or special finding is returned and
before it is recorded, the jury shall be polled at the request of any party or
upon the court's own motion. If at the conclusion of the poll, all of the
jurors do not concur, the jury may be directed to retire for further
deliberations or may be discharged by the court.
(b) Special Findings. The court may submit to the jury forms for such
special findings which may be required or authorized by law. The court shall
give such instruction as may be necessary to enable the jury both to make these
special findings or verdicts and to render a general verdict. When a special
finding is inconsistent with another special finding or with the general
verdict, the court may order the jury to retire for further consideration.
(c) Forms.
(1) Verdict. The verdict of the jury may be in substantially the following form:
We, the jury, find the defendant guilty (or not guilty) of the crime of
____________________ as charged in count number __________.
___________________________________
Signature of Presiding Juror
(2) Special Findings. Special findings may be substantially in the
following form:
Was the defendant ______(name)______ armed with a deadly weapon at the time of
the commission of the crime charged in count number _____ Yes ( ) No ( )
(d) Not Guilty By Reason of Insanity.
(1) Procedure When Verdict Received. If a defendant is acquitted of a
crime by reason of insanity, the court shall either direct the defendant's
release or shall order the defendant's hospitalization or an appropriate
alternative treatment as mandated by RCW 10.77.110. Prior to the entry of an
appropriate order releasing or detaining the defendant, the court shall advise
the defendant: (i) of the need to surrender any firearm and any concealed
pistol license, and of the prohibition upon the possession of any firearm or of
a concealed pistol license; (ii) of the time limits on the right to collateral
attack imposed by RCW 10.73.090 and .100; and (iii) if the defendant is
acquitted of a sex offense or kidnapping offense as defined in RCW 9A.44.130,
of the need to register as a sex offender or kidnapping offender.
(2) Form of Notice. The form shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR [ ] COUNTY
STATE OF WASHINGTON, ) No.
Plaintiff, ) NOT GUILTY BY REASON OF INSANITY
vs. ) ACQUITTEE'S NOTICE OF
) [X] FIREARM DISABILITY
_______________________, ) [X] TIME LIMITS ON COLLATERAL ATTACKS
Defendant. ) [ ] SEX OFFENDER OR KIDNAPPING
) [ ] OFFENDER REGISTRATION REQUIREMENTS
)
TO THE ABOVE-NAMED DEFENDANT:
You are hereby advised that you have been acquitted by reason of insanity
of the offense of ____________________.
YOU ARE ADVISED THAT YOU ARE TO IMMEDIATELY SURRENDER ANY FIREARM AND ANY
CONCEALED PISTOL LICENSE AND YOU MAY NOT POSSESS A FIREARM OR A CONCEALED
PISTOL LICENSE UNTIL YOUR RIGHT HAS BEEN RESTORED BY A COURT OF RECORD.
You are further advised that if you wish to petition or move for collateral
attack on any order of hospitalization or order mandating alternative treatment
less restrictive than detention in a state hospital, including but not limited
to any personal restraint petition, state habeas corpus petition, motion to
vacate judgment, motion to withdraw guilty plea, motion for new trial or motion
to arrest judgment, you must do so within one year of the final judgment in
this matter, except as provided for in RCW 10.73.100. In re Personal Restraint
of Well, 133 Wn.2d 433, 946 P.2d 750 (1997).
If the following numbered paragraphs apply, they should initialed by the
Defendant and the Judge.
1. General Applicability and Requirements. Because the offense which you have
been acquitted of committing by reason of insanity is classified as a sex
offense or kidnapping offense in RCW 9A.44.130, you will be required to
register with the sheriff of the county of the state of Washington where you
reside. If you are not a resident of Washington but you are a student in
Washington or you are employed in Washington or you carry on a vocation in
Washington, you must register with the sheriff of the county of your school,
place of employment, or vocation. You must register immediately upon being
acquitted by reason of insanity unless you are in custody, in which case you
must register at the time of your release with the person designated by the
agency that has you in custody and you must also register within 24 hours of
your release with the sheriff of the county of the state of Washington where
you will be residing, or if not residing in the state of Washington, where you
are a student, where you are employed, or where you carry on a vocation.
2. Offenders Who Leave the State and Return: If you leave this state
following your acquittal or release from custody but later move back to
Washington, you must register within three business days after moving to this
state or within 24 hours after doing so if you are under the jurisdiction of
this state's Department of Social and Health Services. If you leave this state
following your acquittal or release from custody, but later while not a
resident of Washington you become employed in Washington, carry on a vocation
in Washington, or attend school in Washington, you must register within three
business days after attending school in this state or becoming employed or
carrying out a vocation in this state, or within 24 hours after doing so if you
are under the jurisdiction of this state's Department of Social and Health Services.
3. Change of Residence Within State and Leaving the State: If you change your
residence within a county, you must send signed written notice of your change
of residence to the sheriff within 72 hours of moving. If you change your
residence to a new county within this state, you must send signed written
notice of the change of address at least 14 days before moving to the county
sheriff in the new county of residence and you must register with the sheriff
of the new county within 24 hours of moving. You must also give signed written
notice of your change of address to the sheriff of the county where last
registered within 10 days of moving. If you move out of Washington State, you
must send written notice within 10 days of moving to the new state or foreign
country to the county sheriff with whom you last registered in Washington State.
4. Additional Requirements Upon Moving to Another State: If you move to
another state, or if you work, carry on a vocation, or attend school in another
state you must register a new address, fingerprints, and photograph with the
new state within 10 days after establishing residence, or after beginning to
work, carry on a vocation, or attend school in the new state. You must also
send written notice within 10 days of moving to the new state or to a foreign
country to the county sheriff with whom you last registered in Washington State.
5. Notification Requirement When Enrolling in or Employed by a Public or
Private Institution of Higher Education or Common School (K-12): If you are a
resident of Washington and you are admitted to a public or private institution
of higher education, you shall, within 10 days of enrolling or by the first
business day after arriving at the institution, whichever is earlier, notify
the sheriff of the county of your residence of your intent to attend the
institution. If you become employed at a public or private institution of
higher education, You are required to notify the sheriff for the county of
your residence of your employment by the institution within 10 days of
accepting employment or by the first business day after beginning to work at
the institution, whichever is earlier. If your enrollment or employment at a
public or private institution of higher education is terminated, you are
required to notify the sheriff for the county of your residence of your
termination of enrollment or employment within 10 days of such termination. If
you attend, or plan to attend, a public or private school regulated under Title
28A RCW or chapter 72.40 RCW, you are required to notify the sheriff of the
county of your residence of your intent to attend the school. You must notify
the sheriff within 10 days of enrolling or 10 days prior to arriving at the
school to attend classes, whichever is earlier. The sheriff shall promptly
notify the principal of the school.
6. Registration by a Person Who Does Not Have a Fixed Residence: Even if you
do not have a fixed residence, you are required to register. Registration
must occur within 24 hours of release in the county where you are being
supervised if you not have a residence at the time of your release from
custody. Within 48 hours, excluding weekends and holidays, after losing your
fixed residence, you must send signed written notice to the sheriff of the
county where you last registered. If you enter a different county and stay
there for more than 24 hours, you will be required to register in the new
county. You must also report in person to the sheriff of the county where you
are registered on a weekly basis. The weekly report will be on a day specified
by the county sheriff's office, and shall occur during normal business hours.
You may be required to provide a list of the locations where you have stayed
during the last seven days. The lack of a fixed residence is a factor that may
be considered in determining a sex offender's risk level and shall make you
subject to disclosure to the public at large pursuant to RCW 4.24.550.
7. Reporting Requirements for Persons Who Are Risk Level II or III: If you
have a fixed residence and you are designated as a risk level II or III, you
must report, in person, every 90 days to the sheriff of the county where you
are registered. Reporting shall be on a day specified by the county sheriff's
office, and shall occur during normal business hours. If you comply with the
90-day reporting requirement with no violations for at least five years in the
community, you may petition the superior court to be relieved of the duty to
report every 90 days.
8. Application for a Name Change: If you apply for a name change, you must
submit a copy of the application to the county sheriff of the county of your
residence and to the state patrol not fewer than five days before the entry of
an order granting the name change. If you receive an order changing your name,
you must submit a copy of the order to the county sheriff of the county of your
residence and to the state patrol within five days of the entry of the order.
RCW 9A.44.130(7).
The warning regarding firearms has been read to the defendant.
DATED:
_________________________
Judge/Commissioner/Pro Tem
_____________________________
Defendant's Signature
Defendant's Last Name First Name Middle Name
_______________________________________________________________
List any aliases
_______________________________________________________________
Residential Street Address City State Zip
_______________________________________________________________
Date of Birth (month/date/year) Driver's License/ID Number
_______________________________________________________________
Race __________ Sex _______ Weight _______ Height ______
Eyes _________ Hair _________
Court NCIC # ___________________________________
Submit to: Dept. of Licensing, Business & Professions Firearms Unit,
PO Box 9649, Olympia, WA 98507-9649
(3) Record. A verbatim record of the notice of verdict return proceedings
shall be made. The clerk of the court shall forward a copy of the notice of
firearm disability to the Department of Licensing, Business & Professions Firearms Unit.
RULE CrR 7.1
PROCEDURES BEFORE SENTENCING
(a) Generally. At the time of, or within 3 days after, a plea, finding, or
verdict of guilt of a felony, the court may order that a risk assessment or
presentence investigation and report be prepared by the Department of Corrections,
when authorized by law. The court shall also then:
(1) Set a date, time, and place for sentencing in compliance with the time
requirements of RCW 9.94A.500;
(2) Order the defendant to return at the designated date, time, and place; and
(3) Set a date at least 10 days before sentencing for delivery of the risk
assessment or presentence report, if any, to the court, to the prosecuting
attorney, and to the defendant or defense counsel.
(b) Report. The report of the presentence investigation shall contain the
defendant's criminal history, as defined by RCW 9.94A.030, such information
about the defendant's characteristics, financial condition, and the
circumstances affecting the defendant's behavior as may be relevant in imposing
sentence or in the correctional treatment of the defendant, information about
the victim, and such other information as may be required by the court.
(c) Notice of New Evidence. At least 3 days before the sentencing hearing,
defense counsel and the prosecuting attorney shall notify opposing counsel and
the court of any part of the presentence report that will be controverted by
the production of evidence.
(d) Other Reports. Any interested person, as designated in RCW 9.94A.500,
may submit a report separate from that furnished by the Department of Corrections.
Comment
The rule is designed to implement RCW 9.94A.110 and related statutes
concerning the sentencing procedure. The entire rule is new; it replaces the
prior CrR 7.2, Presentence Investigation, portions of which are incorporated
into the new rule.
Section (a) is adapted from Minn. R. Crim. P. 27.03. The rule states that
the court may order a presentence investigation and report, giving the court a
measure of discretion to dispense with a report when the appropriate sentence
can readily be determined on the basis of the sentencing guidelines score
sheet. The rule codifies the existing practice of requiring the writer of the
report to send copies to counsel and to the court.
Section (b) is substantially the same as the prior rule, CrR 7.2(b). The
reference in the prior rule to the defendant's "prior criminal record" is
replaced by a reference to the defendant's "criminal history" in order to
parallel the statutory language.
The reference to "helpful" information is replaced by a reference to
"relevant" information because much of what is "helpful" under the prior rule
will become irrelevant under a system of presumptive sentencing.
Section (c) ensures that both parties will receive reasonable notice of any
intent to controvert the presentence report by the production of new evidence.
The combined effect of sections (a)(3) and (c) is that each party will have 7
days to examine the report before giving the required notice.
Section (d) makes it clear that persons who are permitted under RCW 9.94A.110
to present "argument" at sentencing may do so in writing.
Unlike the prior rule, CrR 7.2(c), the rule contains no provision
concerning the nondisclosure of "harmful" portions of the presentence report.
The Commission concluded that the provision was no longer necessary because
much of what might be "harmful" under the prior rule will no longer be relevant
under presumptive sentencing and will not be included in the report. If a
report under the presumptive sentencing system does contain information that
the court believes should be kept confidential, the court may fashion an
appropriate remedy on a case-by-case basis.
[Amended effective July 1, 1984; September 1, 1986; Amended effective February 28, 2006.]
RULE 7.2
SENTENCING
(a) Generally. The court shall state the precise terms of the sentence
and shall assure that the record accurately reflects all time spent in
custody in connection with the offense or behavioral incident for which
sentence is imposed. Pending such action the court may release or commit
the defendant, pursuant to rule 3.2.
(b) Procedure at Time of Sentencing. The court shall, immediately after
sentencing, advise the defendant: (1) of the right to appeal the
conviction; (2) of the right to appeal a sentence outside the standard
sentence range; (3) that unless a notice of appeal is filed within 30 days
after the entry of the judgment or order appealed from, the right to appeal
is irrevocably waived; (4) that the superior court clerk will, if requested
by the defendant appearing without counsel, supply a notice of appeal form
and file it upon completion by the defendant; (5) of the right, if unable
to pay the costs thereof, to have counsel appointed and portions of the
trial record necessary for review of assigned errors transcribed at public
expense for an appeal; and (6) of the time limits on the right to
collateral attack imposed by RCW 10.73.090 and .100. These proceedings
shall be made a part of the record.
(c) Record. A verbatim record of the sentencing proceedings shall be made.
(d) Judgment and Sentence. For every felony sentencing, the clerk of
the court shall forward a copy of the uniform judgment and sentence to the
Sentencing Guidelines Commission. The uniform judgment and sentence shall
be a form prescribed by the Administrator for the Courts in conjunction with
the Supreme Court Pattern Forms Committee. If the sentence imposed departs
from the applicable standard sentence range, the court's written findings
of fact and conclusions of law shall also be supplied to the Commission.
Comment
The prior rule, CrR 7.1, is adopted as CrR 7.2.
In section (a), the added language is suggested by Minn. R. Crim. P.
27.03. The deleted language addressed matters that are now covered in more
detail in RCW 9.94A.110.
Section (b) is the same as the corresponding section in the prior rule,
except that subsections (1) and (2) are modified to reflect the provisions
of RCW 9.94A.210.
Section (c), concerning the withdrawal of a guilty plea, is deleted. In
the existing rules, the point is covered in both CrR 4.2 and CrR 7.1. (See
rule 4.2.) The language of the two provisions differs, but they appear to
be the same in substance. There is no apparent distinction between the two
provisions in the cases that have interpreted them. No loss of substance
occurs when the provision in CrR 7.1 is deleted, leaving the point governed
by CrR 4.2.
Section (c) is suggested by Minn. R. Crim. P. 27.03.
Section (d) is suggested by Minn. R. Crim. P. 27.03.
RULE 7.3
JUDGMENT
A judgment of conviction shall set forth whether defendant was
represented by counsel or made a valid waiver of counsel, the plea, the
verdict or findings, and the adjudication and sentence. The court may order
that its sentence include special conditions or requirements, including a
specified schedule for the payment of a fine, restitution, or other costs,
or the performance of community service. If the defendant is found not
guilty or for any other reason is entitled to be discharged, judgment shall
be entered accordingly. The judgment shall be signed by the judge and
entered by the clerk.
Comment
The rule codifies the existing practice allowing the court to impose
special conditions on its sentence. The rule makes it clear that special
conditions, including a specified schedule, may likewise be imposed with
respect to an order for community service, restitution, or costs. (See RCW
9.94A.200, referring to terms and conditions of restitution.)
The rule is, of course, subject to any statutory restrictions on the
court's sentencing authority. For example, a statute requires that a
sentence of confinement for more than 60 days must be served on consecutive
days (RCW 9.94A.120). The rule would not permit the court to order that
such a sentence be served on intermittent days.
RULE 7.4
ARREST OF JUDGMENT
(a) Arrest of Judgments. Judgment may be arrested on the motion of the
defendant for the following causes: (1) Lack of jurisdiction of the person
or offense; (2) the indictment or information does not charge a crime; or
(3) insufficiency of the proof of a material element of the crime.
(b) Time for Motion; Contents of Motion. A motion for arrest of
judgment must be served and filed within 10 days after the verdict or
decision. The court on application of the defendant or on its own motion
may in its discretion extend the time until such time as judgment is
entered.
The motion for arrest of judgment shall identify the specific reasons
in fact and law as to each ground on which the motion is based.
(c) New Charges After Arrest of Judgments. When judgment is arrested
and there is reasonable ground to believe that the defendant can be
convicted of an offense properly charged, the court may order the defendant
to be recommitted or released to answer a new indictment or information. If
judgment was arrested because there was no proof of a material element of
the crime the defendant shall be dismissed.
(d) Rulings on Alternative Motions in Arrest of Judgment or for a New
Trial. Whenever a motion in arrest of a judgment and, in the alternative,
for a new trial is filed and submitted in any superior court in any
criminal cause tried before a jury, and the superior court enters an order
granting the motion in arrest of judgment, the court shall, at the same
time, in the alternative, pass upon and decide in the same order the motion
for a new trial. The ruling upon the motion for a new trial shall not
become effective unless and until the order granting the motion in arrest
of judgment is reversed, vacated, or set aside in the manner provided by
law.
RULE 7.5
NEW TRIAL
(a) Grounds for New Trial. The court on motion of a defendant
may grant a new trial for any one of the following causes when it
affirmatively appears that a substantial right of the defendant
was materially affected:
(1) Receipt by the jury of any evidence, paper, document or
book not allowed by the court;
(2) Misconduct of the prosecution or jury;
(3) Newly discovered evidence material for the defendant,
which the defendant could not have discovered with reasonable
diligence and produced at the trial;
(4) Accident or surprise;
(5) Irregularity in the proceedings of the court, jury or
prosecution, or any order of court, or abuse of discretion, by
which the defendant was prevented from having a fair trial;
(6) Error of law occurring at the trial and objected to at
the time by the defendant;
(7) That the verdict or decision is contrary to law and the
evidence;
(8) That substantial justice has not been done. When the
motion is based on matters outside the record, the facts shall be
shown by affidavit.
(b) Time for Motion; Contents of Motion. A motion for new
trial must be served and filed within 10 days after the verdict
or decision. The court on application of the defendant or on its
own motion may in its discretion extend the time. The motion for
a new trial shall identify the specific reasons in fact and law
as to each ground on which the motion is based.
(c) Time for Affidavits. When a motion for a new trial is
based upon affidavits they shall be served with the motion. The
prosecution has 10 days after such service within which to serve
opposing affidavits. The court may extend the period for
submitting affidavits to a time certain for good cause shown or
upon stipulation.
(d) Statement of Reasons. In all cases where the court grants
a motion for a new trial, it shall, in the order granting the
motion, state whether the order is based upon the record or upon
facts and circumstances outside the record which cannot be made a
part thereof. If the order is based upon the record, the court
shall give definite reasons of law and facts for its order. If
the order is based upon matters outside the record, the court
shall state the facts and circumstances upon which it relied.
(e) Disposition of Motion. The motion shall be disposed of
before judgment and sentence or order deferring sentence.
RULE 7.6
PROBATION
(a) Probation. After conviction of an offense the defendant
may be placed on probation as provided by law.
(b) Revocation of Probation. The court shall not revoke
probation except after a hearing in which the defendant shall be
present and apprised of the grounds on which such action is
proposed. The defendant is entitled to be represented by counsel
and may be released pursuant to CrR 3.2 pending such hearing.
Counsel shall be appointed for a defendant financially unable to
obtain counsel.
RULE 7.7
POST-CONVICTION RELIEF
(RESCINDED)
RULE CrR 7.8
RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders.
Such mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7.2(e).
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud; etc. On motion and upon such terms as are just, the court may
relieve a party from a final judgment, order, or proceeding for the
following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity
in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the
judgment.
The motion shall be made within a reasonable time and for reasons (1) and
(2) not more than 1 year after the judgment, order, or proceeding was
entered or taken, and is further subject to RCW 10.73.090, .100, .130, and
.140. A motion under section (b) does not affect the finality of the
judgment or suspend its operation.
(c) Procedure on Vacation of Judgment.
(1) Motion. Application shall be made by motion stating the grounds upon
which relief is asked, and supported by affidavits setting forth a concise
statement of the facts or errors upon which the motion is based.
(2) Transfer to Court of Appeals. The court shall transfer a motion filed
by a defendant to the Court of Appeals for consideration as a personal
restraint petition unless the court determines that the motion is not
barred by RCW 10.73.090 and either (i) the defendant has made a substantial
showing that he or she is entitled to relief or (ii) resolution of the
motion will require a factual hearing.
(3) Order to Show Cause. If the court does not transfer the motion to the
Court of Appeals, it shall enter an order fixing a time and place for
hearing and directing the adverse party to appear and show cause why the
relief asked for should not be granted.
[Adopted effective September 1, 1986; amended effective September 1, 1991;
June 24, 2003; September 1, 2007.]
RULE 8.1
TIME
Time shall be computed and enlarged in accordance with CR 6.
RULE 8.2
MOTIONS
Rules 3.5 and 3.6 and CR 7(b) shall govern motions in criminal cases.
CrR 8.3
DISMISSAL
(a) On Motion of Prosecution. The court may, in its discretion, upon
written motion of the prosecuting attorney setting forth the reasons therefor,
dismiss an indictment, information or complaint.
(b) On Motion of Court. The court, in the furtherance of justice, after
notice and hearing, may dismiss any criminal prosecution due to arbitrary
action or governmental misconduct when there has been prejudice to the rights
of the accused which materially affect the accused's right to a fair trial.
The court shall set forth its reasons in a written order.
(c) On Motion of Defendant for Pretrial Dismissal. The defendant may,
prior to trial, move to dismiss a criminal charge due to insufficient evidence
establishing a prima facie case of the crime charged.
(1) The defendant's motion shall be in writing and supported by an
affidavit or declaration alleging that there are no material disputed facts and
setting out the agreed facts, or by a stipulation to facts by both parties. The
stipulation, affidavit or declaration may attach and incorporate police
reports, witness statements or other material to be considered by the court
when deciding the motion to dismiss. Any attached reports shall be redacted if
required under the relevant court rules and statutes.
(2) The prosecuting attorney may submit affidavits or declarations in
opposition to defendant's supporting affidavits or declarations. The affidavits
or declarations may attach and incorporate police reports, witness statements
or other material to be considered by the court when deciding defendant's
motion to dismiss. Any attached reports shall be redacted if required under the
relevant court rules and statutes.
(3) The court shall grant the motion if there are no material disputed
facts and the undisputed facts do not establish a prima facie case of guilt. In
determining defendant's motion, the court shall view all evidence in the light
most favorable to the prosecuting attorney and the court shall make all
reasonable inferences in the light most favorable to the prosecuting attorney.
The court may not weigh conflicting statements and base its decision on the
statement it finds the most credible. The court shall not dismiss a sentence
enhancement or aggravating circumstance unless the underlying charge is subject
to dismissal under this section. A decision denying a motion to dismiss under
this rule is not subject to appeal under RAP 2.2. A defendant may renew the
motion to dismiss if the trial court subsequently rules that some or all of the
prosecuting attorney's evidence is inadmissible.
(4) If the defendant's motion to dismiss is granted, the court shall enter a
written order setting forth the evidence relied upon and conclusions of law.
The granting of defendant's motion to dismiss shall be without prejudice.
[Amended effective September 1, 1995; September 1, 2008.]
Comment
Supersedes RCW 10.46.090.
RULE 8.4
SERVICE, FILING, AND SIGNING OF PAPERS
CR 5 shall govern service and filing of written motions (except those
heard ex parte) in criminal causes. All pleadings, motions, and legal
memoranda signed by an attorney shall include the attorney's Washington
State Bar Association membership number in the signature block.
RULE 8.5
CALENDARS
In setting cases for trial, unless otherwise provided by statute,
preference shall be given to criminal over civil cases, and criminal cases
where the defendant or a witness is in confinement shall have preference
over other criminal cases.
RULE 8.6
EXCEPTIONS UNNECESSARY
CR 46 shall govern exceptions to rulings and orders in criminal cases.
RULE 8.7
OBJECTIONS
Objections in criminal causes shall be taken as in civil causes.
RULE 8.8
DISCHARGE
Upon acquittal, or whenever the court shall direct any criminal
prosecution to be dismissed, the defendant shall be released from custody
or conditions of release on such charge and any bail shall be exonerated.
Comment
Supersedes RCW 10.64.090.
CrR 8.9
CHANGE OF JUDGE
Any right under RCW 4.12.050 to seek disqualification of a
judge will be deemed waived unless, in addition to the
limitations in the statute, the motion and affidavit is filed
with the court no later than thirty days prior to trial before a
preassigned judge. If a case is reassigned to a different judge
less than forty days prior to trial, a party may then move for a
change of judge within ten days of such reassignment, unless the
moving party has previously made such a motion.
Special Proceedings Rules -- Criminal
SPRC
TABLE OF RULES
SPRC 1 Scope of Rules
SPRC 2 Appointment of Counsel
SPRC 3 Court Reporters; Filing of Notes
SPRC 4 Discovery - Special Sentencing Proceeding
SPRC 5 Mental Examination of Defendant
SPRC 6 Proportionality Questionnaires
SPRC 7 Destruction of Records, Exhibits, and Stenographic Notes
SPRC 1
SCOPE OF RULES
(a) Except as otherwise stated, these rules apply to all stages of
proceedings in criminal cases in which the death penalty has been or
may be decreed. These rules do not apply in any case in which
imposition of the death penalty is no longer possible.
(b) Except when inconsistent with these rules, the Superior Court
Criminal Rules and the Rules of Appellate Procedure shall continue to
apply in capital cases.
[Adopted effective December 30, 1997; amended effective January 1, 2003.]
SPRC 2
APPOINTMENT OF COUNSEL
At least two lawyers shall be appointed for the trial
and also for the direct appeal. The trial court shall retain
responsibility for appointing counsel for trial. The Supreme
Court shall appoint counsel for the direct appeal.
Notwithstanding RAP 15.2(f) and (h), the Supreme Court will
determine all motions to withdraw as counsel on appeal.
A list of attorneys who meet the requirements of
proficiency and experience, and who have demonstrated that
they are learned in the law of capital punishment by virtue
of training or experience, and thus are qualified for
appointment in death penalty trials and for appeals will be
recruited and maintained by a panel created by the Supreme
Court. All counsel for trial and appeal must have
demonstrated the proficiency and commitment to quality
representation which is appropriate to a capital case. Both
counsel at trial must have five years’ experience in the
practice of criminal law be familiar with and experienced in
the utilization of expert witnesses and evidence, and not be
presently serving as appointed counsel in another active
trial level death penalty case. One counsel must be, and
both may be, qualified for appointment in capital trials on
the list, unless circumstances exist such that it is in the
defendant’s interest to appoint otherwise qualified counsel
learned in the law of capital punishment by virtue of
training or experience. The trial court shall make findings
of fact if good cause is found for not appointing list
counsel.
At least one counsel on appeal must have three years’
experience in the field of criminal appellate law and be
learned in the law of capital punishment by virtue of
training or experience. In appointing counsel on appeal,
the Supreme Court will consider the list, but will have the
final discretion in the appointment of counsel.
Comment
If the period of time for filing the death notice has
passed, and the death notice has not been filed, the court
may then reduce the number of attorneys to one to proceed
with the murder trial.
[Adopted effective December 30, 1997; amended effective January 1, 2003.]
SPRC 3
COURT REPORTERS; FILING OF NOTES
(a) At the commencement of a capital case, the trial
court will designate one or more court reporters for that
case. To the extent practical, only designated reporters
will report all hearings.
(b) As soon as possible after each hearing, the court
reporter will transmit stenographic notes, any audio or
video tapes, and any other electronic data medium containing
notes of the hearing to the courtroom clerk.
(c) The courtroom clerk will index the notes on a
records inventory, noting the date of the notes. The
courtroom clerk will have the court reporter initial the
inventory log as each set of notes is received by the
courtroom clerk.
(d) The stenographic notes, any audio or video tapes,
and any other electronic data medium containing notes of any
hearing shall be stored by the clerk's office in an exhibit
box labeled with the defendant's name and cause number to
allow easy retrieval of notes. Sealed notes are to be
marked "SEALED" in red ink and maintained in accordance with
GR 15.
(e) Court reporter notes, any audio or video tapes, and any
other electronic data medium containing notes of any
hearing, sealed or unsealed, shall not be provided to anyone
except the court reporter who produced the notes, unless a
court order provides otherwise.
(f) A court reporter may withdraw the stenographic notes,
any video or audio tapes, and any other electronic data
medium containing notes of a hearing as required for
transcription upon completing a request slip. The
stenographic notes, any audio or video tapes, and any other
electronic data medium containing notes shall be returned to
the clerk's office at the same time the transcript is filed
for transmission to an appellate court.
SPRC 4
DISCOVERY - SPECIAL SENTENCING PROCEEDING
Before the guilt phase of the trial begins, pursuant to
a schedule set by the court, both parties shall provide
discovery, pursuant to CrR 4.7(a) and (b) of evidence that
they anticipate offering at the special sentencing
proceeding. The trial court has discretion, in accordance
with CrR 4.7(h)(4), to defer disclosure of all or part of
the defendant's penalty phase evidence until the guilt phase
has been completed. This discovery shall, if necessary, be
supplemented pursuant to CrR 4.7(h)(2).
SPRC 5
MENTAL EXAMINATION OF DEFENDANT
(a) If the defendant may offer at the special
sentencing proceeding expert testimony concerning his or her
mental condition, the defendant shall notify the prosecuting
attorney at least 30 days prior to the start of jury
selection. This time may be extended by the court for good
cause.
(b) If the defendant has provided such notification,
the court, on motion of the prosecuting attorney, shall
enter an order requiring the defendant to submit to
examination by one or more experts designated by the
prosecuting attorney. The court shall specify the time,
place, manner, conditions, and scope of the examination and
the person or persons by whom it is to be made. The
defendant may have a representative present at the
examination, who may observe the examination but not
interfere with or otherwise obstruct the examination.
Unless otherwise ordered by the court, the defendant or the
defendant's representative may make an audio tape recording
of the examination, which shall be made in an unobtrusive
manner.
(c) By the date set by the court, the defendant or the
defendant's attorney shall provide the State's experts with
any reports generated by defense experts, all raw data
relied on, and any test results. The information given to
the experts shall be supplemented whenever new materials
become available.
(d) If the State's expert believes that the material
provided by the defendant is inadequate for a proper
evaluation, the expert may request the court to require that
further materials be provided. If the defendant fails to
cooperate with the examination, the expert may request the
court to require the defendant to answer specific questions
or participate in specific tests. The court shall consider
these requests at a closed hearing. The defendant and his
or her attorneys shall be given an opportunity to be heard.
The prosecuting attorney shall not be allowed to
participate. The record of the hearing shall be sealed as
provided in subsection (f).
(e) On completing the examination, the prosecution
expert shall submit a report setting out the tests performed
and their results, the conclusions reached by the expert,
and the basis for those conclusions. The report shall be
provided to the defendant's attorney and filed with the
court.
(f) The expert's report and materials connected with it
shall be sealed. The expert shall not discuss his or her
conclusions or any information connected with the
examination with anyone, other than the defendant's
attorneys or other experts whose participation is necessary
for a proper examination. Any such experts shall be under
the same restrictions.
(g) Within 24 hours after a jury returns a verdict
finding a defendant guilty of aggravated murder in the first
degree, the court will require the defendant to elect
whether he or she may present expert testimony at the
special sentencing proceeding concerning his or her mental
condition. If the defendant elects not to present such
testimony, the report shall remain permanently sealed, the
restrictions set out in subsection (f) shall remain
permanently in effect, and the State shall be permanently
prohibited from direct or derivative use against the
defendant of the report or of materials or information
provided to the expert. If the defendant elects to present
such testimony, the court shall provide a copy of the
experts' reports to the prosecuting attorney and shall
relieve the experts of the restrictions. The prosecuting
attorney may use information obtained from the expert solely
to rebut expert testimony offered by the defense at the
special sentencing proceeding.
(h) If, in any subsequent proceeding related to the
crimes for which the defendant was convicted, the defendant
places his or her mental status in issue, the court may
direct that relevant portions of the experts' reports be
disclosed to the prosecuting attorney and that the experts
shall discuss those portions with the prosecuting attorney.
SPRC 6
PROPORTIONALITY QUESTIONNAIRES
(a) Within 14 days after the entry of a judgment and
sentence convicting a defendant of aggravated first degree
murder, the prosecuting attorney and the defendant's
attorney shall each complete a proposed questionnaire in the
form specified in RCW 10.95.120. The proposed
questionnaires shall be filed with the clerk of the trial
court. Copies shall be provided to the court and served on
the opposing attorney.
(b) The court shall consider the proposed
questionnaires and all other information in the record. No
hearing shall be held unless the court so directs. Within
30 days after the entry of the judgment and sentence, the
court shall complete a final questionnaire. The
questionnaire shall be submitted to the clerk of the Supreme
Court, to the defendant or his or her attorney, and to the
prosecuting attorney.
(c) Statements made by an attorney in a proposed
questionnaire shall not be considered admissions.
Statements made by the court in the final questionnaire
shall not be considered findings of fact. The proposed
questionnaires and the final questionnaire shall not be used
by the parties or the courts for any purpose in connection
with the case to which they pertain or any collateral
proceeding involving the same defendant. They shall be used
only in other cases, for the purpose of making the
determination required by RCW 10.95.130(2).
(d) In any brief or memorandum, a questionnaire may be
cited in the following format: first and last name of
defendant, questionnaire number, county of conviction, year
of sentencing. For example: "John Doe, no. 9 (Snohomish,
1982)."
SPRC 7
DESTRUCTION OF RECORDS, EXHIBITS, AND STENOGRAPHIC NOTES
No records, exhibits, or stenographic notes shall be
considered for destruction in a case in which the death
penalty has been imposed while the defendant is still alive.
Before destroying any records, exhibits, or notes in a
capital case, the clerk will provide 60 days notice by
certified mail, return receipt requested, to the prosecuting
attorney, to the defendant's last known attorney of record,
and to the defendant. To allow this notice, an attorney who
represents the defendant in any challenge to the conviction
should notify the clerk of the trial court of the fact of
representation and the attorney's current address. Such
notification does not constitute an appearance for any
purpose other than receiving notice under this rule.
SUPERIOR COURT
MENTAL PROCEEDINGS RULES (MPR)
TABLE OF RULES
1. GENERAL
Rule
1.1 Notice--General
1.2 Continuance or Postponement
1.3 Confidentiality of Proceedings
1.4 Alternative Less Restrictive Treatment
2. PROCEEDINGS FOR INITIAL DETENTION
2.1 Summons
2.2 Authorization and Notice of Detention
2.2A Notice of Emergency Detention
2.3 Right To Copy Court Files
2.4 Probable Cause Hearing
2.5 Rescinded
3. PROCEEDINGS FOR NINETY OR ONE HUNDRED
EIGHTY-DAY COMMITMENT
3.1 First Court Appearance
3.2 Preliminary Appearance
3.3 Jury Demand
3.4 Hearing
3.5 Notice of Restrictions
4. PROCEEDINGS FOR CONDITIONAL RELEASE AND
REVOCATION OR MODIFICATION
4.1 Notice of Conditions
4.2 Authorization for Apprehension and Detention
4.3 Petition and Order of Apprehension and Detention--Service
4.4 Petition for Initial Detention
4.5 Hearing
5. VENUE
5.1 General
5.2 Conditional Release Hearing
5.3 Release of Records
5.4 Reserved
6. PETITIONS
6.1 Petition for Initial Detention
6.1A Petition for Initial Detention of a Minor
6.2 Petition for Fourteen-Day Involuntary Treatment
6.2A Petition for Fourteen-Day Commitment of Minors
6.3 Petition for Ninety-Day Involuntary Treatment
6.4 Petition for One Hundred Eighty-Day Involuntary Treatment
6.4A Petition for One Hundred Eighty-Day Involuntary Treatment of a Minor
6.5 Petition for Revocation of Conditional Release or Less Restrictive Treatment
6.5A Petition for Revocation of Conditional Release or Less Restrictive Treatment of a Minor
INTRODUCTION
The following rules have been designed and promulgated to give full
force and effect to Laws of 1973, 1st Ex. Sess., ch. 142. Any future
amendments which may be enacted will be dealt with in rules as the need may
arise.
Section 62 of the act directs the Supreme Court to adopt rules with
respect to court procedures and proceedings. Adoption of these rules is not
to be construed as approval of what could be a breach of the separation of
powers of government. While the Legislature may recommend rulemaking as to
particular matters, it may not mandate rulemaking which is an inherent
power of the judicial branch.
Although the courts generally do not pass upon the wisdom or the
workability of statutes, they are concerned with their constitutionality.
The adoption of these rules, which are merely designed to give effect to
the statute as it is written, does not in any manner indicate an opinion of
the court that the statute is or is not constitutional in any respect. In
promulgating them, the court does not in any manner obviate further
consideration of any portion of the statute or these rules in a proper
case.
Because of the complicated nature of the statute necessitating these
rules and the need that they be effective January 1, 1974, the court has
promulgated them without submitting them for comment, and now invites
comment from the bench and bar.
RULE 1.1
NOTICE--GENERAL
Whenever any notice or document pursuant to the provisions of RCW 71.05
is required to be served on a person who is detained or committed, such
notice or document shall be provided to the person's attorney, guardian, if
any, and, if the person is under 18 years of age, to any person, entity, or
institution having actual custody, in addition to any other person provided
by statute.
(a) Notice to Prosecutor. In any judicial proceeding under RCW 71.05
for involuntary commitment or detention in which the prosecuting attorney
is required to represent a party (see RCW 71.05.130), the prosecuting
attorney for the county in which the proceeding is initiated shall be
served with written notice of the proceedings and copies of the initiating
papers by the party initiating the proceedings.
(b) Notice to Attorney General. In any judicial proceeding under RCW
71.05 for involuntary commitment or detention in which the Attorney General
is required to represent a party (see RCW 71.05.130), the Attorney General
shall be served with written notice of the proceedings and copies of the
initiating papers by the party initiating the proceedings.
(c) Notice of Release. Whenever a person committed or detained under
RCW 71.05 is released or conditionally released, the court ordering such
commitment shall be notified immediately in writing of the release by the
superintendent or professional person in charge of the facility from which
the person is released.
RULE 1.2
CONTINUANCE OR POSTPONEMENT
In any judicial proceeding for involuntary commitment or detention held
pursuant to RCW 71.05 the court may continue or postpone such proceeding
for a reasonable time, subject to RCW 71.05.210 and RCW 71.05.240, on the
following grounds:
(a) On motion of the respondent if there is a showing of good cause;
(b) On motion of the prosecuting attorney or the Attorney General if:
(1) The respondent expressly consents to a continuance or delay and
there is a showing of good cause; or
(2) Required in the proper administration of justice and the respondent
will not be substantially prejudiced in the presentation of respondent's
case.
(c) The court on its own motion may continue the case when required in
the due administration of justice and when the respondent will not be
substantially prejudiced in the presentation of his case.
An order granting continuance shall state whether detention will be
extended and the grounds therefor.
RULE 1.3
CONFIDENTIALITY OF PROCEEDINGS
Proceedings had pursuant to RCW 71.05 shall not be open to the public,
unless the person who is the subject of the proceedings or his attorney
files with the court a written request that the proceedings be public. The
court in its discretion may permit a limited number of persons to observe
the proceedings as a part of a training program of a facility devoted to
the healing arts or of an accredited educational institution within the
state.
RULE 1.4
ALTERNATIVE LESS RESTRICTIVE TREATMENT
(a) As an alternative to detention, where the court makes a finding or
a special verdict is returned that the respondent should receive less
restrictive alternative treatment, the court may order such less
restrictive alternative treatment for no longer than the period for which
the respondent could have been committed at the hearing.
(b) If the court orders less restrictive alternative treatment, the
order shall specify the terms and conditions of the alternative treatment
and a copy shall be delivered to the respondent.
(c) If the conditions of the alternative treatment are not adhered to,
the designated mental health professional may order the respondent
apprehended according to the procedure defined by rules 4.1 through 4.5.
RULE 2.1
SUMMONS
The summons issued pursuant to RCW 71.05.150 shall include the
following:
(a) The date and time for appearance, not less than 24 hours from the
time at which the summons is served, at an evaluation and treatment
facility.
(b) The address of the evaluation and treatment facility.
(c) The business address and business telephone number of the
designated mental health professional.
(d) A statement that the person summoned may be detained at the
evaluation and treatment facility for up to 72 hours excluding Saturdays,
Sundays, and holidays.
(e) A statement whether the 72-hour evaluation period is on outpatient
or inpatient status.
(f) A statement that if the person summoned fails to appear at the
evaluation and treatment facility on or before the date and time indicated,
he may be taken into custody.
(g) A statement that an attorney will be appointed for the person
summoned unless the person has retained his own attorney.
(h) The name, business address and business telephone number of the
designated attorney.
(i) The summons shall be in substantially the following form:
THE STATE OF WASHINGTON TO (name of person to be detained):
It is alleged that because of mental disorder you present a likelihood
of serious harm to yourself, other persons, or the property of other
persons, or are gravely disabled.
You are hereby required to appear in person at (address of evaluation
and treatment facility) in (city), Washington, on or before (hour) on
(month, day, year) for evaluation and possible treatment. You may be
detained without court order for evaluation and possible treatment for not
more than 72 hours, not including Saturdays, Sundays, or holidays. If you
fail to appear in person on or before the date stated above, you may be
taken into custody.
You have the right to have an attorney. (Name, address, telephone
number) will be appointed as your attorney unless you make arrangements to
be represented by another attorney.
Dated this _______ day of ____________________, 19____.
(Signed) _______________________________
Mental Health Professional
(name) County, Washington
Address: _______________________________
Telephone: _____________________________
RULE 2.2
AUTHORIZATION AND NOTICE OF DETENTION
At the time when any person is taken into custody or as soon as
possible thereafter pursuant to RCW 71.05.150(1)(d) or RCW 71.05.150(2)
regardless of whether a summons has been issued pursuant to rule 2.1
written authorization to do so shall be served upon such person. A copy of
the authorization and a notice of detention shall be filed with the court.
The authorization and notice of detention shall include:
(a) The name of the person to be taken into custody.
(b) A statement that the person authorized to take custody is
authorized pursuant to RCW 71.05.150(1)(d) or RCW 71.05.150(2).
(c) A statement that the person is to be taken into custody for the
purpose of delivering that person to an evaluation and treatment facility
for a period of up to 72 hours excluding Saturdays, Sundays, and holidays.
The 72-hour period begins when the evaluation and treatment facility
provisionally accepts the person as provided in RCW 71.05.170.
(d) A statement specifying the name and location of the evaluation and
treatment facility where such person will be detained.
(e) The authorization and notice of detention shall be in substantially
the following form:
TO: ANY PEACE OFFICER OR MENTAL HEALTH PROFESSIONAL
(Name of person) ____ has failed to appear in response to summons
issued by me pursuant to RCW 71.05.150 a copy of which is attached, or ____
as a result of mental disorder:
____ presents an imminent likelihood of serious harm to him/herself
____ presents an imminent likelihood of serious harm to others
____ presents an imminent likelihood of serious harm to the property
of others
____ is in imminent danger because he/she is gravely disabled
You are notified to take or to cause such person to be taken into
custody forthwith and placed in (name and location of evaluation and
treatment facility) for evaluation and treatment for not more than 72
hours, or for such additional time as a court may order. The 72-hour period
begins when the person is provisionally accepted at the evaluation and
treatment facility and excludes Saturdays, Sundays, and holidays.
Dated: _______________________ (signed) __________________________
Mental Health Professional
(name) County, Washington
Respondent has been detained in (name and location of evaluation and
treatment facility).
Dated: _______________________ Time: _____________________________
(signed) __________________________
___ Peace Officer or ___ Mental
Health Professional, (name) County,
Washington
RULE 2.2A
NOTICE OF EMERGENCY DETENTION
The notice of emergency detention required to be filed with the court
and served upon the designated attorney of the detained person pursuant to
RCW 71.05.160 shall include a statement specifying the name and location of
the evaluation and treatment facility where the person taken into custody
has been detained.
The notice of emergency detention shall be in substantially the
following form:
(Respondent) has been detained in (name of evaluation and treatment
facility).
Dated: _______________________ Time of provisional acceptance:
(signed) __________________________
Mental Health Professional
(name) County, Washington
RULE 2.3
RIGHT TO COPY COURT FILES
Prior to and at the hearing provided for in RCW 71.05.200, 71.05.240,
and 71.05.250, the attorney for any detained person who will be a
respondent at such hearing shall be permitted to view and copy all
documents relating to the detained person which have been filed with the
court.
RULE 2.4
PROBABLE CAUSE HEARING
(a) Notice. If notice to the court and the prosecuting attorney of the
probable cause hearing as required by RCW 71.05.150(1)(c) includes the date
and time of the provisional acceptance of any person involuntarily
detained, no additional notice to the court shall be required pursuant to
RCW 71.05.170.
(b) Procedure.
(1) The probable cause hearing provided in RCW 71.05.200(1) shall be
held in accordance with the provisions of RCW 71.05.200(1), 71.05.240, and
71.05.250, except that under the circumstances defined by RCW 10.77.090,
the prosecuting attorney may be the petitioner.
(2) The probable cause hearing shall proceed as in other civil actions,
except that the court, in its discretion, may dispense with opening
statements and final arguments.
(3) The court shall be advised of any medications administered to the
respondent within the prior 24-hour period, and if it appears that the
person detained has refused medication 24 hours before the hearing, but was
nevertheless forced to receive medication during that period, the court may
continue the hearing for 24 hours, and may order that no medication shall
be administered to the person detained during such period.
(4) At the conclusion of the hearing, the court shall make written
findings of fact and conclusions of law, and enter an order for release or
for detention for an additional 14 days in an evaluation and treatment
facility, or such lesser treatment as shall to the court appear proper. A
copy of the order shall be served upon the evaluation and treatment
facility and on the mental health professional who signed the petition.
RULE 2.5
(Rescinded. See RCW 71.34.)
RULE 3.1
FIRST COURT APPEARANCE
For purposes of proceedings for 90-day commitment, the phrase "first
court appearance" provided in RCW 71.05.310, shall refer to the appearance
provided for in RCW 71.05.300 of that act.
RULE 3.2
PRELIMINARY APPEARANCE
Prior to the hearing provided for in RCW 71.05.320(2), the committed
person shall be brought before the court for an appearance which shall be
the same as that provided in RCW 71.05.300 of that act.
RULE 3.3
JURY DEMAND
(a) When Available. A jury is available only in a hearing for 90- or
180-day commitment proceedings pursuant to RCW 71.05.300 and RCW 71.05.320.
(b) Procedure for Demand. Within 2 judicial days after the person
detained is advised in open court of his right to a jury trial as provided
in RCW 71.05.300 the person detained may demand a trial by jury in the
hearing on the petition for 90-day or 180-day detention by serving upon the
prosecuting attorney a demand therefor in writing, by filing the demand
therefor with the clerk. No jury fee shall be required. If no party, within
the time above specified, serves and files a demand for jury trial, the
matter shall be heard without a jury. If no party, within the time above
specified, serves or files a demand that the matter be tried by a jury of
12, it shall be tried by a jury of 6 members, with concurrence of 5 being
required to reach a verdict.
RULE 3.4
HEARING
(a) Procedure. The hearing shall be proceeded with as in any other
civil action.
(b) Findings and Conclusions. Unless the matter is tried to a jury, the
court shall make and enter findings of fact and conclusions of law.
(c) Verdict. If the matter is tried to a jury, the court shall instruct
the jury to bring in a special verdict, which shall be in terms of the
issues specified in RCW 71.05.320.
3.5 NOTICE OF RESTRICTIONS The contents of this item are only available on-line.
RULE 4.1
NOTICE OF CONDITIONS
Any person conditionally released pursuant to RCW 71.05.340 shall be
notified in writing of the terms and conditions of the release and shall be
notified in writing of any modifications of such terms and conditions. Such
notification shall also be given in writing to the court which ordered the
person's commitment.
RULE 4.2
AUTHORIZATION FOR APPREHENSION AND DETENTION
At the time of taking any person into custody for failure to adhere to
the terms and conditions of release under RCW 71.05.340 or of an
alternative treatment under RCW 71.05.320, an authorization for
apprehension and detention shall be served upon the person. The
authorization for apprehension and detention shall include:
(a) The name of the person taken into custody;
(b) A statement that it is issued pursuant to the suspension of
conditional release or alternative treatment;
(c) The date on which the order of commitment or order for alternative
treatment was entered and the number of days, if any, for which the person
was ordered committed.
(d) The authorization shall be in substantially the following form:
TO: ANY PEACE OFFICER OR MENTAL HEALTH PROFESSIONAL
You are authorized to take or cause to be taken (name of person) into
custody and place such person in (name and location of evaluation and
treatment facility) for detention pursuant to ___ RCW 71.05.340 (suspension
of conditional release) or ___ RCW 71.05.320 (suspension of alternative
treatment). The named person was ___ conditionally released from an order
of commitment or ___ originally placed on alternative treatment, the
conditions of which have been violated. The named person's commitment to
inpatient treatment or alternative treatment was originally ordered for
(number) days by (name of court) on (date).
Date: ___________________ (signed) _______________________________
___ Secretary, Department of Social and
Health Services, State of Washington,
or His Designee,
___ Mental Health Professional
(name) County, Washington
RULE 4.3
PETITION AND ORDER OF APPREHENSION
AND DETENTION--SERVICE
Unless otherwise ordered by the court, the petition and order of
apprehension and detention required in RCW 71.05.340, shall be served on
the person to be apprehended and detained at the time of apprehension, and
on his guardian, if any, and his attorney, if any, as soon as possible.
Where no order of apprehension and detention has been issued, a
petition shall be filed with the court within 72 hours and the person, his
attorney, if any, and his guardian, if any, shall be served with a copy of
the petition within 24 hours after the petition is filed with the court. At
the time the petition is served on the person, notice shall be filed with
the court and served on the person that a hearing will be held within 15
days.
RULE 4.4
PETITION FOR INITIAL DETENTION
A mental health professional may commence new proceedings for 72-hour
detention pursuant to RCW 71.05.150, notwithstanding an order of less
restrictive alternative treatment under RCW 71.05.320 or a grant of
conditional release pursuant to RCW 71.05.340.
RULE 4.5
HEARING
(a) Burden of Proof. Before entering an order returning any person for
involuntary treatment on an inpatient basis as a result of failure to
adhere to the terms and conditions of conditional release pursuant to RCW
71.05.340 or less restrictive treatment under RCW 71.05.320, the court
shall find at the hearing that there is clear, cogent, and convincing
evidence that such person did not adhere to the terms and conditions of
release or less restrictive treatment, that the terms of such release or
treatment should not be modified, and that the person should be returned to
inpatient treatment.
(b) Waiver. Waiver of the hearing provided for in RCW 71.05.340 shall
be in writing signed by all persons required to waive under that section. A
copy of the waiver shall be filed with the court in which the notice of
apprehension and detention was filed.
RULE 5.1
GENERAL
Proceedings pursuant to RCW 71.05 shall be brought in the superior
court of the county in which the person is being detained. The court, for
good cause, may transfer a proceeding to the county of respondent's
residence, or to the county in which the alleged conduct evidencing need
for treatment occurred.
RULE 5.2
CONDITIONAL RELEASE HEARING
The notice of apprehension and detention and the petition for hearing
required in RCW 71.05.340, shall be filed in the county ordering the
commitment from which the person was conditionally released. Upon motion
for good cause, the court may order the proceeding transferred to the court
in the county in which the person was receiving outpatient care or the
county of the person's residence.
RULE 5.3
RELEASE OF RECORDS
A proceeding for the release of records or files pursuant to
RCW 71.05. 390 shall be in the court maintaining such records or files.
RULE 5.4
(RESERVED)
RULE 6.1
PETITION FOR INITIAL DETENTION
The petition for initial detention shall contain the following:
(a) Identification of the petitioner as a peace officer or designated
mental health professional.
(b) A statement describing the circumstances under which the condition
of the respondent was brought to the petitioners attention.
(c) A statement that as a result of the petitioners personal
observation or investigation, the petitioner believes that the actions of
the respondent constitute a likelihood of harm to the respondent, others,
or to the property of others, or that the respondent is gravely disabled.
(d) A statement of the specific facts known to the petitioner upon
which he bases his belief that respondent should be detained for the
purposes and under the authority of RCW 71.05.
(e) A request that the respondent be detained at an evaluation and
treatment facility for no more than a 72-hour treatment and evaluation
period.
(f) The date and the signature of the petitioner.
(g) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: )
) No. __________
)
Petitioner: ) PETITION FOR INITIAL
and ) DETENTION
)
Respondent: ) RCW __________
Pursuant to RCW 71.05 petitioner ___ a peace officer or ___ mental
health professional designated by the county alleges under penalty of
perjury that:
Respondent, _______________, was brought to my attention under the
following circumstances: _____________________________________________
______________________________________________________________________
______________________________________________________________________
As a result of my personal observation or investigation I believe that
the actions of the respondent constitute a likelihood of serious harm to
the respondent, others, or to the property of others, or that the
respondent is gravely disabled.
The specific facts known to me as a result of personal observation or
investigation, upon which I base the belief that the respondent should be
detained for the purposes and under the authority of RCW 71.05 are:
______________________________________________________________________
______________________________________________________________________
Therefore the petitioner requests that the respondent be detained at an
evaluation and treatment facility for no more than a 72-hour evaluation and
treatment period, excluding Saturdays, Sundays, and holidays.
Dated this _______ day of ____________________, 19____.
___________________________________
Petitioner
Sworn and Subscribed on _________________________________________
___________________________________
Notary Public for the State of
Washington Residing at ____________
My commission expires on __________
RULE 6.1A
PETITION FOR INITIAL DETENTION OF A MINOR
The petition for initial detention shall contain the following:
(a) Identification of the petitioner as a designated mental health
professional.
(b) A statement describing the circumstances under which the condition
of the respondent was brought to the petitioners attention.
(c) A statement that as a result of the petitioners personal
observation or investigation, the petitioner believes that the actions of
the respondent constitute a likelihood of serious harm to the respondent,
others, or to the property of others, or that the respondent is gravely
disabled.
(d) A statement of the specific facts known to the petitioner upon
which he bases his belief that respondent should be detained for the
purposes and under the authority of RCW 71.34.
(e) A request that the respondent be detained at an evaluation and
treatment facility for no more than a 72-hour treatment and evaluation
period.
(f) A statement that voluntary admission for inpatient treatment is not
possible.
(g) The date and the signature of the petitioner.
(h) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: )
) No. __________
)
Petitioner: ) PETITION FOR INITIAL
and ) DETENTION OF A MINOR
)
Respondent: ) RCW 71.34.050
Pursuant to RCW 71.34 petitioner, a mental health professional
designated by the county, alleges under penalty of perjury that:
Respondent, _______________, was brought to my attention under
the following circumstances: _________________________________________
______________________________________________________________________
______________________________________________________________________
As a result of my personal observation or investigation I believe that
the actions of the respondent constitute a likelihood of serious harm or
that the respondent is gravely disabled.
The specific facts known to me as a result of personal observation or
investigation, upon which I base the belief that the respondent should be
detained for the purposes and under the authority of RCW 71.34 are:
______________________________________________________________________
______________________________________________________________________
Voluntary admission is not possible. Therefore the petitioner requests
that the respondent be detained at an evaluation and treatment facility for
no more than a 72-hour evaluation and treatment period, excluding
Saturdays, Sundays, and holidays.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.2
PETITION FOR FOURTEEN-DAY INVOLUNTARY TREATMENT
The petition for 14-day involuntary treatment shall contain the following:
(a) The name and address of the petitioner(s).
(b) The name of the person alleged, as a result of mental disorder,
to present a likelihood of serious harm to him/herself, others, or the
property of others, or to be gravely disabled, and, if known to the
petitioner, the address, age, sex, marital status and occupation of the
person. Such person shall be denominated the respondent.
(c) The facts upon which the allegations of the petition are based.
(d) The name of every person known or believed by the petitioner to
be legally responsible for the care, support, and maintenance of the
person alleged, as a result of mental disorder, to present a likelihood
of serious harm to others or himself, or to be gravely disabled, and the
address of each such person if known to the petitioner.
(e) A statement that the professional staff of the evaluation and
treatment facility has examined and analyzed respondent's condition and
finds that as a result of mental disorder respondent presents a
likelihood of serious harm to himself or others or is gravely disabled.
(f) A statement that the respondent has been advised of the need for
voluntary treatment and that the professional staff of the facility has
evidence that he has not in good faith volunteered.
(g) A statement that the facility providing intensive treatment is
certified to provide such treatment by the Department of Social and
Health Services of the State of Washington.
(h) A statement that there is no less restrictive alternative to
detention in the best interests of respondent or others, or that a less
restrictive alternative is sought and a specification of what that alternative is.
(i) A demand that a probable cause hearing be held within 72 hours
after provisional acceptance at the evaluation and treatment facility,
excluding Saturdays, Sundays, and holidays, unless the person is sooner
released, on the issue of whether the respondent shall be detained for an
additional 14 days' involuntary treatment or whether such person shall be
treated under less restrictive alternatives.
(j)The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR FOURTEEN-
) DAY INVOLUNTARY
) TREATMENT
)
Respondent. ) RCW __________
(Petitioner(s)), ___ mental health professional for _____________
County, ___ member(s) of professional staff of _______________________
(agency or facility), ___ prosecuting attorney for _________________
County pursuant to RCW 10.77.090, alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____. (Respondent's) occupation is ______________________________
______________________________________________________________________
______________________________________________________________________
The professional staff of the evaluation agency or facility has
examined respondent's condition and finds that as a result of mental
disorder (respondent) presents:
___ a likelihood of serious harm to him/herself,
___ a likelihood of serious harm to others,
___ a likelihood of serious harm to the property of others,
___ is gravely disabled.
The facts upon which the allegations of this petition are based are as follows:
______________________________________________________________________
______________________________________________________________________
(use back of page if necessary)
The person(s) legally responsible for the care, support, and
maintenance of (respondent) and their relationship to him are, so far as
known to the petitioner, as follows: (Give names, addresses, and
relationship of persons named as respondents.)
______________________________________________________________________
(use back of page if necessary)
The respondent has been advised of the need for, but has not accepted
voluntary treatment.
The facility providing intensive treatment is certified to provide
such treatment by the Department of Social and Health Services.
The petitioner(s) request(s) that a hearing be held before (time and
date) unless the respondent is sooner released, to determine whether
(respondent) ___ shall be detained for 14 days' involuntary treatment
because there is no less restrictive alternative to detention in the best
interest of respondent or others, or ___ shall be required to comply with
the following less restrictive alternative:
______________________________________________________________________
______________________________________________________________________
Dated this _______day of ____________________, 19____.
_________________________________________________________
Petitioner __ Physician __ MHP __ Prosecuting Attorney __
_________________________________________________________
Petitioner __ Physician __ MHP __ Prosecuting Attorney __
_________________________________________________________
_________________________________________________________
Address
Sworn and Subscribed on__________________________________________
____________________________________________________
Notary Public for the State of Washington
Residing at ________________________________________
My commission expires on____________________________
RULE 6.2A
PETITION FOR FOURTEEN-DAY COMMITMENT
OF MINORS
The petition for 14-day commitment of a minor shall contain the
following:
(a) The names and addresses of the petitioners. The petitioners shall
be two physicians or one physician and one mental health professional.
(b) The name, address, age, and sex of the respondent minor.
(c) The name, address and telephone number, if known, of every person
believed by the petitioner to be legally responsible for the minor.
(d) A statement that the minor is or is not in detention at the time
the petition is filed, and, if so, the name and location of the place of
detention.
(e) A statement that the minor, as a result of mental disorder,
presents a likelihood of serious harm to him/herself or others, or is
gravely disabled.
(f) A statement that the minor has been advised of the need of
voluntary treatment but has been unwilling or unable to consent to
necessary treatment.
(g) The facts upon which the allegations of the petition are based.
(h) A statement concerning whether an alternative less restrictive than
inpatient treatment is in the best interest of the minor.
(i) The name and location of the facility in which respondent will be
detained and a statement that such facility is certified by the Department
of Social and Health Services to provide evaluation and treatment to
persons under 18 years of age suffering from mental disorders.
(j) A statement recommending the appropriate facility or facilities to
provide the necessary treatment.
(k) A demand that a hearing be held to determine whether the minor
shall be committed to inpatient treatment or whether an alternative less
restrictive treatment exists.
(l) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR FOURTEEN-
) DAY COMMITMENT
) OF A MINOR
)
Respondent. ) RCW 71.34.070
(Petitioners) are (physician) and (physician/mental health
professional). Petitioners' addresses are ____________________________
____________________________
(Respondent), residing at (address) in (city or town), Washington, is a
___ male ___ female years of age.
The name, address and telephone number of every person believed
by the petitioner to be legally responsible for the minor:
______________________________________________________________________
______________________________________________________________________
At the time of filing this petition, respondent ___ is ___ is not in
detention pursuant to RCW 71.34. If respondent is in detention, the name
and location of the facility in which respondent is in detention are
_________________________________________________________________.
Respondent, as a result of mental disorder, ___ presents a likelihood
of serious harm to him/herself, ___ presents a likelihood of serious harm
to others, ___ is gravely disabled.
That the minor has been advised of the need for voluntary treatment and
is unwilling or unable to consent to necessary treatment.
The facts upon which the allegations of this petition are based
are: _________________________________________________________________
______________________________________________________________________
The following alternative courses of treatment have been considered:
______________________________________________________________________
No alternative less restrictive than detention is in the best interest
of the respondent.
The facility in which respondent will be detained is (name and
location), certified by the Department of Social and Health Services to
provide evaluation and treatment to persons under 18 years of age suffering
from mental disorders.
Recommended treatment facilities: _______________________________
Name
_______________________________
Address
The petitioner(s) request(s) that a hearing be held in the above named
court to determine whether respondent shall be involuntarily committed to
inpatient care or whether there shall be an alternative less restrictive
treatment pursuant to RCW 71.34.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner (MD)
_________________________________________
Petitioner (MD/MHP)
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.3
PETITION FOR NINETY-DAY INVOLUNTARY TREATMENT
The petition for 90-day involuntary treatment shall contain the
following:
(a) The name and address of the petitioner.
(b) The name and address of the person alleged, as a result of mental
disorder, to present a likelihood of serious harm to him/herself or others
because such person (1) has threatened, attempted, or inflicted physical
harm upon the person of another or him/herself or substantial damage upon
the property of another after having been taken into custody for evaluation
and treatment, or (2) was taken into custody as a result of conduct in
which he/she attempted or inflicted physical harm upon the person of
another or him/herself, or (3) is gravely disabled, or (4) has been
determined to be incompetent and criminal charges have been dismissed
pursuant to RCW 10.77.090(3) and has committed acts constituting a felony,
and presents substantial likelihood of repeating similar acts. Such person
shall be denominated the respondent.
(c) A statement that petitioner is the professional person in charge of
the treatment facility in which the respondent is detained pursuant to
court order or his professional designee, or the county mental health
professional of (name) County.
(d) The name of the court ordering 14-day involuntary treatment or
finding the respondent incompetent pursuant to RCW 10.77.090(3) and the
date on which such order or finding was entered.
(e) A summary of the facts supporting the allegations of the petition.
(f) A demand that a hearing be held within 5 judicial days of the first
court appearance after the probable cause hearing unless the person named
in the petition requests a jury trial, in which case trial shall commence
within 10 judicial days of the filing of the petition for 90-day treatment
on the issue of whether the person alleged, as a result of mental disorder,
to present a likelihood of serious harm, to himself or others, shall be
detained for involuntary treatment for a period not to exceed 90 days.
(g) A statement that the petition is supported by accompanying
affidavits and the names of the persons signing such affidavits.
(h) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR NINETY-DAY
) INVOLUNTARY TREATMENT
)
Respondent. ) RCW __________
(Petitioner), ___ the professional person in charge, or ___ his
professional designee, or ___ the county mental health professional for
(name) county, of (name of facility) in which (respondent) is detained for
(number) days pursuant to an order of (name of court) entered on (date)
alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____.
As a result of mental disorder (respondent) presents a likelihood of
serious harm to him/herself or others because respondent ___ has
threatened, attempted, or inflicted physical harm upon the person of
another or him/herself or substantial damage upon the property of another
after having been taken into custody for evaluation and treatment, or ___
was taken into custody as a result of conduct in which respondent
threatened, attempted or inflicted physical harm upon the person of another
or him/herself, or ___ is gravely disabled, or ___ has been determined to
be incompetent and criminal charges have been dismissed pursuant to RCW
10.77.090(3), and has committed acts constituting a felony, and as a result
of mental disorder, presents a substantial likelihood of repeating similar
acts.
The facts upon which the allegations of this petition are based
are summarized as follows: ___________________________________________
______________________________________________________________________
The allegations are supported by the accompanying affidavits
signed by ___________________________________________________________.
The petitioner requests that a hearing be held to determine whether
(respondent) shall be detained for involuntary treatment for a period not
to exceed 90 days.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.4
PETITION FOR ONE HUNDRED EIGHTY-DAY
INVOLUNTARY TREATMENT
The petition for 180-day involuntary treatment shall contain the
following:
(a) The name and address of the person filing the petition and the
statement that the petitioner is the superintendent or professional person
in charge of the facility in which the person who is alleged, as a result
of mental disorder, to present a likelihood of serious harm to others, is
detained, or in the event that the defendant has received involuntary
treatment but has not been committed to a treatment facility or has been
conditionally released from such a facility, a statement that the
petitioner is the county mental health professional of (name) County.
(b) The name and address of the person alleged, as a result of a mental
disorder, to present a likelihood of serious harm to others because such
person (1) during his/her current period of court ordered treatment has
threatened, attempted or actually inflicted physical harm on another or
substantial damage upon the property of another, or (2) was taken into
custody as a result of conduct in which he/she attempted or inflicted
serious physical harm upon the person of another and continues to present,
as a result of mental disorder, a likelihood of serious harm to others, or
(3) is in custody pursuant to RCW 71.05.280(3) (acts constituting a felony)
and as a result of mental disorder presents a substantial likelihood of
repeating similar acts, or (4) continues to be gravely disabled. Such
person shall be denominated the respondent.
(c) The name of the court ordering involuntary treatment for which the
respondent is presently detained, and the date on which such order was
entered.
(d) A summary of the facts supporting the allegations of the petition.
(e) A demand that a hearing be held within 5 judicial days of the first
court appearance after the probable cause hearing unless the person named
in the petition requests a jury trial, in which case trial shall commence
within 10 judicial days of the filing of the petition for 180-day treatment
on the issue of whether the person alleged, as a result of mental disorder,
to present a likelihood of serious harm to others, shall be detained for
involuntary treatment for a period not to exceed 180 days.
(f) A statement that a form of treatment less restrictive than
involuntary detention is not in the best interest of the respondent or
others.
(g) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR ONE HUNDRED
) EIGHTY-DAY INVOLUNTARY
) TREATMENT
)
Respondent. ) RCW __________
(Petitioner), the superintendent or professional person in charge of
(name of facility) in which (respondent) is detained for (number) days
pursuant to an order of (name of court) entered on (date) alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____.
(Respondent) ___ has threatened, attempted or actually inflicted harm
on another person, or substantial damage upon the property of another
during respondent's current period of court ordered treatment and as a
result of mental disorder presents a likelihood of serious harm to others,
or ___ was taken into custody as a result of conduct in which respondent
attempted or inflicted serious physical harm upon the person of another and
continues to present as a result of mental disorder a likelihood of serious
harm to others, or ___ is in custody pursuant to RCW 71.05.280(3) (acts
constituting a felony) and as a result of mental disorder presents a
substantial likelihood of repeating similar acts, or ___ continues to be
gravely disabled.
The facts upon which the allegations of this petition are based
are as follows: ______________________________________________________
______________________________________________________________________
______________________________________________________________________
A form of treatment less restrictive than involuntary detention is not
in the best interest of the respondent or others.
The petitioner requests that a hearing be held to determine whether
(respondent) shall be detained for involuntary treatment for a period not
to exceed 180 days.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.4A
PETITION FOR ONE HUNDRED EIGHTY-DAY INVOLUNTARY
TREATMENT OF A MINOR
The petition for 180-day involuntary treatment of a minor shall contain
the following:
(a) The name and address of the person filing the petition and the
statement that the petitioner is the professional person in charge of the
facility in which the person who is alleged, as a result of mental
disorder, to present a likelihood of serious harm to others or is gravely
disabled, is detained, or in the event that the defendant has received
involuntary treatment but has not been committed to a treatment facility or
has been conditionally released from such a facility, a statement that the
petitioner is the county mental health professional of (name) County.
(b) The name and address and age of the minor alleged, as a result of a
mental disorder, to present a likelihood of serious harm to him/herself,
others, or property or continues to be disabled. Such minor shall be
denominated the respondent.
(c) The name of the court ordering involuntary treatment for which the
respondent is presently detained, and the date on which such order was
entered.
(d) A summary of the facts supporting the allegations of the petition.
(e) A demand that a hearing be held within 7 days of the filing of the
petition for 180-day treatment on the issue of whether the minor alleged,
as a result of mental disorder, to present a likelihood of serious harm or
is gravely disabled, shall be detained for involuntary treatment for a
period not to exceed 180 days.
(f) A statement that the minor is in need of further treatment that can
only be provided in a 180-day commitment and this treatment is in the
minors best interests.
(g) A statement that less restrictive alternative treatment is/is not
available and/or appropriate.
(h) The petition shall be supported by accompanying affidavits signed
by two examining physicians, one of whom shall be a child psychiatrist, or
by one examining physician and one children's mental health specialist.
(i) The petition shall be in substantially the following form:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR ONE HUNDRED
) EIGHTY-DAY INVOLUNTARY
) TREATMENT OF A MINOR
)
Respondent. ) RCW 71.34.090
(Petitioner), professional person in charge of (name of facility) in
which (respondent) is detained for (number) days pursuant to an order of
(name of court) entered on (date) alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____.
(Respondent) ___ presents a likelihood of serious harm to him/herself
or ___ presents a likelihood of serious harm to others or ___ presents a
likelihood of serious harm to property or ___ is gravely disabled.
(Respondent) ___ has threatened, attempted or actually inflicted harm
on another person, or substantial damage upon the property of another
during respondent's current period of court ordered treatment and a s
result of mental disorder presents a likelihood of serious harm to other,
or ___ was taken into custody as a result of conduct in which respondent
attempted or inflicted serious physical harm upon the person of another and
continues to present as a result of mental disorder a likelihood of serious
harm to others, or ___ is in custody pursuant to RCW 71.05.280(3) (acts
constituting a felony) and as a result of mental disorder presents a
substantial likelihood of repeating similar acts, or ___ continues to be
gravely disabled.
Summary of facts supporting the petition: _______________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
A form of treatment less restrictive than involuntary detention
___ is or ___ is not in the best interest of the respondent or others.
The petitioner requests that a hearing be held to determine whether
(respondent) shall be detained for involuntary treatment for a period not
to exceed 180 days.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner (MD)
_________________________________________
Petitioner (MD/MHP)
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.5
PETITION FOR REVOCATION OF CONDITIONAL RELEASE
OR LESS RESTRICTIVE TREATMENT
The petition for revocation of conditional release or less restrictive
treatment shall contain the following:
(a) The name and address of the petitioner and the statement that
petitioner is the Secretary of the Department of Social and Health
Services, State of Washington, or is the county mental health professional
for (name) County.
(b) The name and address of the person alleged to have failed to adhere
to the terms and conditions of release or less restrictive treatment. Such
person shall be denominated the respondent.
(c) The facts upon which the allegations of the petition are based.
(d) A statement that the respondent was released under terms and
conditions of a court ordered less restrictive treatment or under terms and
conditions set by an evaluation and treatment facility, and that a copy of
the terms and conditions is attached to the petition. The statement shall
also contain the date the order was entered, number of days for which
effective, and the court entering such order.
(e) The date, time and place of detention of the respondent if he is
detained pursuant to an order of the secretary, or whether such an order
has been or will be issued.
(f) A demand that a hearing be held within 5 days of the date on which
respondent was detained pursuant to an order of the secretary, or not less
than 15 days from the date of service of the petition on the respondent, on
the issues of whether the respondent failed to adhere to the terms and
conditions of release or less restrictive treatment, whether the conditions
of the release should be modified, or whether the person should be placed
in an involuntary treatment facility.
(g) The petition shall be in substantially the following form, with a
copy of the terms and conditions attached:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR REVOCATION
) OF CONDITIONAL RELEASE
)
Respondent. ) RCW __________
(Petitioner), ___ Secretary of the Department of Social and Health
Services, State of Washington, or ___ county mental health professional for
(name) County alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____.
Pursuant to an order of (name) court entered on (date), respondent was
detained for involuntary treatment
for a period not to exceed (number) days in (name of facility), or was
placed on less restrictive alternative treatment.
___ (Respondent) was conditionally released from inpatient care at
(name of facility) prior to expiration of the court ordered period of
detention, under terms and conditions for such release copies of which,
including modifications, are attached and were filed in (name) court on
(date(s)) or ___ respondent was placed on less restrictive treatment under
terms and conditions copies of which, including modifications, are
attached.
During the period of conditional release or less restrictive treatment,
respondent was receiving outpatient care from (name of facility) located in
(city or town), (name) County.
Pursuant to RCW __________, petitioner ___ has ___ has not issued an
order for the apprehension and detention of respondent and respondent ___
is not detained ___ is detained in (name of facility) located in (city,
town), (name) county.
(Respondent) has failed to adhere to the terms and conditions of
respondent's release from involuntary detention or less restrictive
alternative treatment and ___ the conditions of release or less restrictive
treatment should be modified or ___ the person should be placed in an
involuntary treatment facility.
The facts upon which the allegations of this petition are based
are as follows: ______________________________________________________
______________________________________________________________________
The petitioner requests that a hearing be held to determine whether
respondent has failed to adhere to the terms and conditions of release or
less restrictive treatment, and whether the respondent shall be placed on
involuntary treatment on an inpatient basis or whether the terms and
conditions of release or less restrictive treatment shall be modified.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
RULE 6.5A
PETITION FOR REVOCATION OF CONDITIONAL RELEASE
OR LESS RESTRICTIVE TREATMENT OF A MINOR
The petition for revocation of conditional release or less restrictive
treatment shall contain the following:
(a) The name and address of the petitioner and the statement that
petitioner is the Secretary of the Department of Social and Health
Services, State of Washington, or is the county mental health professional
for (name) County.
(b) The name and address of the person alleged to have failed to adhere
to the terms and conditions of release or less restrictive treatment or
whose functioning has substantially deteriorated. Such person shall be
denominated the respondent.
(c) The facts upon which the allegations of the petition are based.
(d) A statement that the respondent was released under terms and
conditions of a court ordered less restrictive treatment or under terms and
conditions set by an evaluation and treatment facility, and that a copy of
the terms and conditions is attached to the petition, or that substantial
deterioration of the minors functioning has occurred. The statement shall
also contain the date the order was entered, number of days for which
effective, and the court entering such order.
(e) The date, time and place of detention of the respondent if he/she
is detained pursuant to an order of the secretary, or whether such an order
has been or will be issued.
(f) A demand that a hearing be held within 7 days of the date on which
respondent was detained.
(g) The petition shall describe the behavior of the minor indicating
violation of the conditions or deterioration of routine functioning and a
dispositional recommendation.
(h) The petition shall be in substantially the following form, with a
copy of the terms and conditions attached:
SUPERIOR COURT OF WASHINGTON
FOR (_______________) COUNTY
In re the Detention of: ) No. __________
)
) PETITION FOR REVOCATION
) OF CONDITIONAL RELEASE
) OR LESS RESTRICTIVE
) ALTERNATIVE TREATMENT
)
Respondent. ) RCW 71.34.110
(Petitioner), ___ Secretary of the Department of Social and Health
Services, State of Washington, or ___ county mental health professional for
(name) County alleges that:
(Respondent), residing at (address) in (city or town), is a
___ single ___ married ___ widowed ___ divorced ___ male ___ female
age _____.
Pursuant to an order of (name) court entered on (date), respondent was
detained for involuntary treatment for a period not to exceed (number) days
in (name of facility), or was placed on less restrictive alternative
treatment.
___ (Respondent) was conditionally released from inpatient care at
(name of facility) prior to expiration of the court ordered period of
detention, under terms and conditions for such release copies of which,
including modifications, are attached and were filed in (name) court on
(date(s)) or ___ respondent was placed on less restrictive treatment under
terms and conditions copies of which, including modifications, are
attached.
During the period of conditional release or less restrictive treatment,
respondent was receiving outpatient care from (name of facility) located in
(city or town), (name) County.
Pursuant to RCW __________, petitioner ___ has ___ has not issued an
order for the apprehension and detention of respondent and respondent ___
is not detained ___ is detained in (name of facility) located in (city or
town), (name) County.
(Respondent) has failed to adhere to the terms and conditions of
respondent's release from involuntary detention or less restrictive
alternative treatment, the minors routine functioning has substantially
deteriorated and ___ the conditions of release or less restrictive
treatment should be modified or ___ the person should be placed in an
involuntary treatment facility.
The facts upon which the allegations of this petition are based
are as follows: ______________________________________________________
______________________________________________________________________
The petitioner requests that a hearing be held to determine whether
respondent has failed to adhere to the terms and conditions of release or
less restrictive treatment, or whether the minors routine functioning has
substantially deteriorated, and whether the respondent shall be placed on
involuntary treatment on an inpatient basis or whether the terms and
conditions of release or less restrictive treatment shall be modified.
Dated this _______ day of ____________________, 19____.
_________________________________________
Petitioner
Sworn and Subscribed on _________________________________________
_________________________________________
Notary Public for the State of Washington
Residing at _____________________________
My commission expires on ________________
JUVENILE COURT RULES (JuCR)
TABLE OF RULES
TITLE 1
SCOPE AND APPLICATION OF RULES
Rule
1.1 Scope of Rules
1.2 Jurisdiction of Juvenile Court
1.3 Definitions
1.4 Applicability of Other Rules
1.5 Continuation of Actions
TITLE 2
SHELTER CARE PROCEEDINGS
2.1 Placement of Juvenile in Shelter Care Generally
2.2 Release of Juvenile From Shelter Care Without Hearing
2.3 Right to and Notice of Shelter Care Hearing
2.4 Procedure at Shelter Care Hearing
2.5 Amendment of Shelter Care Order
TITLE 3
DEPENDENCY PROCEEDINGS
3.1 Invoking Jurisdiction of Juvenile Court
3.2 Who May File Petition--Venue
3.3 Content of Dependency Petition
3.4 Notice and Summons--Scheduling of Factfinding Hearing
3.5 Amendment of Petition
3.6 Answer to Petition
3.7 Factfinding Hearing
3.8 Disposition Hearing
3.9 Review Hearing
3.10 Modification of Order
3.11 Guardianship in Juvenile Court
TITLE 4
PROCEEDINGS TO TERMINATE PARENT-CHILD RELATIONSHIP
4.1 Invoking Jurisdiction of Juvenile Court
4.2 Pleadings
4.3 Notice of Termination Hearing
TITLE 5
PROCEEDINGS FOR CHILDREN IN NEED OF SERVICES
5.1 Invoking Jurisdiction of Juvenile Court
5.2 Pleadings--Release of Child in Crisis Residential Center
5.3 Scheduling of Fact-finding Hearing
5.4 Notice of Fact-Finding Hearing
5.5 Procedure at Fact-Finding Hearing
5.6 Disposition Hearing
5.7 Review Hearing
TITLE 5A
PROCEEDINGS FOR AT-RISK YOUTH
5A.1 Invoking Jurisdiction of Juvenile Court
5A.2 Scheduling of Fact-Finding Hearing
5A.3 Notice of Fact-Finding Hearing
5A.4 Procedure at Fact-Finding Hearing
5A.5 Disposition Hearing
5A.6 Review Hearing
TITLE 6
JUVENILE OFFENSE PROCEEDINGS--DIVERSION AGREEMENTS
6.1 Eligibility for Diversion
6.2 Right To Consult With a Lawyer
6.3 Waiver of Right to Lawyer
6.4 Advice About Diversion Process
6.5 Rescinded
6.6 Termination of Diversion Agreement
TITLE 7
JUVENILE OFFENSE PROCEEDINGS IN JUVENILE COURT
7.1 Invoking Juvenile Court Jurisdiction
7.2 Information
7.3 Detention and Release
7.4 Detention Hearing
7.5 Issuance of Summons or Warrant
7.6 Arraignment and Pleas
7.7 Statement on Plea of Guilty
7.7 "Offender Registration" Attachment -
Offender Registration for Sex Offense or Kidnapping Offense
7.8 Time for Adjudicatory Hearing
7.9 Joinder of Offenses and Consolidation of Adjudicatory Hearings
7.10 Severance of Offenses and Consolidated Hearings
7.11 Adjudicatory Hearing
7.12 Disposition Hearing
7.13 Release Pending Appellate Review
7.14 Modification of Disposition Order
7.15 Waiver of Right to Counsel
TITLE 8
DECLINING JUVENILE COURT JURISDICTION OVER AN
ALLEGED JUVENILE OFFENDER
8.1 Time for Decline Hearing
8.2 Procedure at Decline Hearing
TITLE 9
RIGHT TO LAWYER AND EXPERTS IN ALL
JUVENILE COURT PROCEEDINGS
9.1 Alternative Residential Placement--Mandatory Appointment of Lawyer
9.2 Additional Right to Representation by Lawyer
9.3 Right to Appointment of Experts in Juvenile Offense Proceedings
TITLE 10
JUVENILE COURT RECORDS
10.1 Scope of Title 10
10.2 Recording Juvenile Court Proceedings
10.3 Access of Parent to Records (Rescinded)
10.4 Motions Concerning Juvenile Records (Rescinded)
10.5 Access to Official Juvenile Court Files (Reserved)
10.6 Challenging Juvenile Court Records (Reserved)
10.7 Sealing Juvenile Court Records (Reserved)
10.8 Destruction of Juvenile Court Records (Reserved)
10.9 Only Complete Information Released (Reserved)
TITLE 11
SUPPLEMENTAL PROVISIONS
11.1 Computing Time
11.2 Notice of Proceeding
11.3-11.20 Reserved
11.21 Title and Citation of Rules
11.22 Rules Superseded
RULE 1.1
SCOPE OF RULES
These rules relate to procedure in the juvenile court.
RULE 1.2
JURISDICTION OF JUVENILE COURT
(a) Generally. The jurisdiction of the juvenile court
is defined by RCW 13.04.030.
(b) Indian Children. In the case of an Indian child,
as defined by the federal Indian Child Welfare Act of 1978,
jurisdiction and proceedings under these rules shall be in
accordance with that act.
RULE 1.3
DEFINITIONS
The definitions in RCW 13.04.011, RCW 13.32A.030, RCW 13.34.030, RCW
9A.76.010 and RCW 13.40.020 shall apply to these rules. For the purposes of
these rules:
"Guardian" means a person appointed by court order under RCW 11.88 or
RCW 13.34.230, but does not mean a person appointed a guardian ad litem
under RCW 11.88.090, RCW 13.34.100, or RCW 26.44.053.
RULE 1.4
APPLICABILITY OF OTHER RULES
(a) Civil Rules. The Superior Court Civil Rules shall apply in
proceedings other than those involving a juvenile offense when not
inconsistent with these rules and applicable statutes.
(b) Criminal Rules. The Superior Court Criminal Rules shall apply in
juvenile offense proceedings when not inconsistent with these rules and
applicable statutes.
(c) Evidence Rules. The Rules of Evidence shall apply in juvenile court
proceedings to the extent and with the exceptions stated in ER 1101.
(d) Local Rules. The local rules of a juvenile court shall apply when
not inconsistent with these rules and applicable statutes. Local rules for
juvenile court proceedings must be adopted in accordance with GR 7.
JuCR
RULE 1.5
CONTINUATION OF ACTIONS
(a) Dependency and Termination Proceedings.
(1) Actions filed on or after May 1, 1978, alleging
dependency or seeking the termination of the parent-child
relationship, in which the court has not entered a final
order of dependency or termination prior to July 1, 1978,
shall, after July 1, 1978, be governed by RCW 13.34 and
these rules.
(2) The status of all juveniles found to be dependent
prior to July 1, 1978, shall be reviewed as provided in RCW
13.34.130.
(3) Any proceeding to modify a disposition order in a
case involving a juvenile found, prior to July 1, 1978, to
be dependent shall be governed by RCW 13.34 and these rules.
(4) The court may modify the application of this
section to a particular case when, in the opinion of the
court, that application would work injustice.
(b) Juvenile Offense Proceedings. Juvenile offense
proceedings shall be governed by the law in effect on the
date the offense is found to have taken place.
Correction of inaccurate statutory reference.
JuCR
RULE 2.1
PLACEMENT OF JUVENILE IN SHELTER CARE GENERALLY
(a) Without Court Order. A juvenile may be placed in
shelter care without court order if the juvenile has been
taken into custody pursuant to RCW 13.34.055 or RCW
26.44.050.
(b) With Court Order. A juvenile may be placed in
shelter care with a court order if:
(1) A dependency petition has been filed pursuant to
rule 3.2 and a motion has been made pursuant to section (c);
or
(2) The juvenile has previously been found to be
dependent, is the subject of a disposition order still in
effect, and a motion has been made pursuant to section (c).
(c) Obtaining an Order to Take Child into Custody -
Supporting Affidavit or Declaration Filed. A request for an
order pursuant to RCW 13.34.050 shall be by motion supported
by an affidavit or declaration filed by the department in
support of the petition setting forth specific factual
information pursuant to RCW 13.34.050 and demonstrating a
risk of imminent harm for the child.
(d) Obtaining an Order to Take Child into Custody - No
Supporting Affidavit or Declaration Filed. A request for an
order pursuant to RCW 13.34.050 in which the department has
not filed with the court a supporting affidavit or
declaration shall not be approved until the parents have
been provided notice and the opportunity to be heard.
Pursuant to 1998 C328 sec 1, amending RCW 13.34.050.
RULE 2.2
RELEASE OF JUVENILE FROM SHELTER CARE
WITHOUT HEARING
(a) If Shelter Care Is Without Court Order. If a juvenile is taken
into shelter care without a court order pursuant to RCW 13.34.055 or RCW
26.44.050, the juvenile shall be released unless a petition alleging
dependency is filed within 72 hours (excluding Sundays and holidays) after
taking the juvenile into custody.
(b) If Shelter Care Is With Court Order. If a juvenile is taken into
shelter care pursuant to a court order, the juvenile shall be released
unless an order authorizing continued shelter care is entered within 72
hours (excluding Sundays and holidays) after the juvenile is taken into
custody.
RULE JuCR 2.3
RIGHT TO AND NOTICE OF SHELTER CARE HEARING
(a) Notice of Right to Shelter Care Hearing. The notice of
the right to request a shelter care hearing required by RCW
13.34.060 shall be given to the child, his or her parents,
guardian, or custodian as soon as possible and in no event longer
than 24 hours of the taking into custody of the child, and in
accordance with rule 11.2.
(b) Shelter Care Hearing Required. The court shall hold a
shelter care hearing within 72 hours after the child is taken
into custody, excluding Saturdays, Sundays, and holidays. If a
parent, guardian, or legal custodian desires to waive the shelter
care hearing, the court shall determine, on the record and with
the parties present, that such waiver is knowing and voluntary.
(c) Notice of Shelter Care Hearing. The notice required by
RCW 13.34.060(2) shall be given in accordance with rule 11.2. The
notice shall inform the parents, guardian, or custodian of their
right to a lawyer as provided in Title 9 of these rules.
(d) Indian Children. If the petitioner knows or has reason
to know that the juvenile is an Indian child as defined by the
federal Indian Child Welfare Act, the petitioner shall notify the
child's tribe in the manner required by RCW 13.34.070(10) and 25 U.S.C. 1912.
[Amended effective September 1, 1987; September 1, 1993; September 1, 1997.]
JuCR
RULE 2.4
PROCEDURE AT SHELTER CARE HEARING
(a) Inform Parties of Rights. The court shall inform
the parties of their rights as set forth in RCW 13.34.090
and in Titles 2, 3, and 9 of these rules. The court may
continue the hearing if the parties have been unable to
retain a lawyer or have been unable to have a lawyer
appointed for them.
(b) Hearing and Decision. The court shall hold the
hearing on the question of shelter care in accordance with
RCW 13.34.060 and RCW 13.34.090. The court shall make its
decision in accordance with RCW 13.34.060.
(c) Release of Juvenile on Conditions. The court may
release the juvenile on those conditions it deems
appropriate. As provided in RCW 13.34.060, the conditions
may be modified upon notice to the parties given in
accordance with rule 11.2 and after a hearing.
Statutory references are broadened to streamline the need
for updating.
(Effective September 1, 1999.)
RULE 2.5
AMENDMENT OF SHELTER CARE ORDER
The court may amend a shelter care order as provided in
RCW 13.34.060(10) at a hearing held after notice to the
parties given in accordance with rule 11.2. Any party may
move to amend a shelter care order.
RULE 3.1
INVOKING JURISDICTION OF JUVENILE COURT
Juvenile court jurisdiction is invoked over dependency proceedings by
filing a petition.
RULE 3.2
WHO MAY FILE PETITION--VENUE
(a) Who May File. Any person may file a petition alleging dependency.
(b) Venue. The petition shall be filed in the county where the juvenile
is located or where the juvenile resides.
RULE 3.3
CONTENT OF DEPENDENCY PETITION
A dependency petition shall contain:
(a) Identification of the Juvenile. The name, age, sex,
and residence of the juvenile so far as known to the
petitioner.
(b) Identification of Parent, Guardian, or Custodian.
The name, marital status, and residence of the parent,
guardian, or custodian, or person with whom the juvenile is
residing, so far as known to the petitioner. If not known,
the petition shall so state.
(c) Indian Children. If the petitioner knows or has
reason to know that the juvenile is an Indian child as
defined by the federal Indian Child Welfare Act, the
petition shall so state and shall name the tribe, if known,
to which the juvenile belongs.
(d) Jurisdictional Statement. A statement of the
statutory provisions which give the court jurisdiction over
the proceeding.
(e) Statement of Facts. A statement of the facts which
give the court jurisdiction over the juvenile and over the
subject matter of the proceedings, stated in plain language
and with reasonable definiteness and particularity.
(f) Request for Inquiry. A request that the court
inquire into the matter and enter an order that the court
shall find to be in the best interests of the juvenile and
justice.
(g) Other. Any other information required by court rule
or statute.
RULE JuCR 3.4
NOTICE AND SUMMONS--SCHEDULING
OF FACTFINDING HEARING
(a) Notice and Summons. After the petition has been filed,
notice and summons shall be issued and served pursuant to RCW
13.34.070 or published pursuant to RCW 13.34.080. The notice
shall state that the petition begins a process which, if the
juvenile is found dependent, may result in permanent termination
of the parent-child relationship.
(b) Advice To Be Contained in Notice. A notice directed to
the juvenile or the juvenile's parent, custodian, or guardian
shall contain the following advisement:
Right to Lawyer
(1) You have the right to talk to a lawyer if you desire
and, if you cannot afford a lawyer, one will be appointed for you.
(2) A lawyer can look at the social and legal files in your
case, talk to the caseworker, tell you about the law, help you
understand your rights, and help you at trial.
(c) Scheduling Factfinding Hearing. The court shall schedule
a factfinding hearing to be held within 75 days of the filing of
the petition alleging dependency, giving preference to those
cases where the juvenile is held in shelter care. The court may,
for good cause shown, continue the hearing to a later time at the
request of a party.
(d) Indian Children. If the petitioner knows or has reason
to know that the juvenile is an Indian child as defined by the
federal Indian Child Welfare Act, the petitioner shall notify the
child's tribe in the manner required by RCW 13.34.070(10) and 25 U.S.C. 1912.
[Amended effective September 1, 1987; September 1, 1993; September 1, 1997.]
RULE 3.5
AMENDMENT OF PETITION
A petition may be amended at any time. The court shall grant additional
time if necessary to insure a full and fair hearing on any new allegations
in an amended petition.
RULE 3.6
ANSWER TO PETITION
Any party may file a written answer to a petition. An answer is not
required unless ordered by the court or required by local rule.
RULE 3.7
FACTFINDING HEARING
(a) Procedure at Hearing. The court shall hold a
factfinding hearing on the petition in accordance with RCW
13.34.110.
(b) Evidence. The Rules of Evidence shall apply to the
hearing.
(c) Burden of Proof. In a factfinding hearing on a
petition alleging dependency pursuant to RCW 13.34.030(4),
the facts alleged in the petition must be proven by a
preponderance of the evidence.
(d) Findings of Fact. In any dependency action in which
the court makes specific findings of physical or sexual
abuse or exploitation of a child the court shall direct the
court clerk to notify the state patrol of the findings
pursuant to RCW 43.43.840.
RULE 3.8
DISPOSITION HEARING
(a) Time. If a juvenile has been found to be dependent,
the court shall hold a disposition hearing. If the
disposition hearing does not immediately follow the
factfinding hearing, notice of the continued hearing shall
be given to all parties in accordance with RCW 13.34.110.
(b) Informing Parties of Purpose of Hearing. The court
shall inform the parties of the purpose of the hearing. The
court shall inform the parties of the new status of the
juvenile as a result of the finding of dependency.
(c) Evidence. The court shall consider the social file,
social study, and other appropriate predisposition studies,
in addition to information produced at the factfinding and
disposition hearings. Any party shall have the right to be
heard at the disposition hearing. Any social file, social
study, or predisposition study shall be made available for
inspection by a party or his or her lawyer for a reasonable
time prior to the disposition hearing.
(d) Submission of Agency Plan. If the agency plan
referred to in RCW 13.34.130(3) is not submitted to the
court at the time of the disposition hearing, it shall be
filed with the court and distributed to all parties within
30 days after the disposition hearing.
(e) Transferring Legal Custody. A disposition which
orders removal of the juvenile from his or her home shall
have the effect of transferring legal custody to the agency
or custodian charged with the juvenile's care. The transfer
of legal custody shall give the legal custodian the
following rights and duties:
(1) To maintain the physical custody of the juvenile;
(2) To protect, train, and discipline the juvenile;
(3) To provide food, clothing, shelter, education as
required by law, and routine medical care for a juvenile;
and
(4) To consent to emergency medical and surgical care
and to sign a release of medical information to appropriate
authorities, pursuant to law.
The court may, in its disposition order, modify the
rights and duties granted to the legal custodian as a result
of the transfer of legal custody.
JuCR
RULE 3.9
REVIEW HEARING
The status of all juveniles found to be dependent shall
be reviewed by the court at least every 6 months, in
accordance with RCW 13.34.130, except when a guardianship
has been established under RCW 13.34.231 and 13.34.232. The
parties shall be given notice of the review hearing in
accordance with rule 11.2. All parties shall have the right
to be present at the review hearing and to be heard. Notice
of a review hearing concerning a juvenile who has been found
dependent under RCW 13.34.030(4) and who has been removed
from the parental home shall include an advisement that a
petition to terminate the parent-child relationship may be
filed.
Correction of inaccurate statutory reference.
RULE 3.10
MODIFICATION OF ORDER
Any party may move to change, modify, or set aside an order pursuant to
RCW 13.34.150. The motion shall be in writing and must state the basis for
the motion and the relief requested. No order shall be changed, modified,
or set aside except after notice to all parties and a hearing, unless the
court waives the hearing on its own motion or upon motion of one of the
parties, for good cause shown.
RULE 3.11
GUARDIANSHIP IN JUVENILE COURT
(a) Petition for Guardianship for Dependent Child. Any party to a
dependency proceeding, including the supervising agency, may file a
petition requesting that a guardianship be created for a dependent child.
The court may, on its own motion, order the supervising agency to file such
a petition.
(b) Scheduling and Notice. A guardianship hearing may be held in
connection with a review hearing under rule 3.9, or it may be otherwise
regularly scheduled. Notice of the time and place of the guardianship
hearing may be given in open court. If notice is not given to a party in
open court, the party shall be given notice in accordance with rule 11.2.
Notice must be given to the Department of Social and Health Services, and
the Department may intervene in the proceedings.
(c) Procedure; Evidence; Burden of Proof. The court shall hold a
hearing on the petition in accordance with RCW 13.34.231. The Rules of
Evidence apply, and the burden of proof is by a preponderance of the
evidence.
RULE 4.1
INVOKING JURISDICTION OF JUVENILE COURT
Juvenile court jurisdiction is invoked over a proceeding to terminate a
parent-child relationship by filing a petition.
RULE 4.2
PLEADINGS
(a) Petition. A petition requesting the termination of a parent-child
relationship may be filed in the juvenile court. The petition shall conform
to the requirements of rule 3.3, shall be verified, and shall state the
facts which underlie each of the allegations required by RCW 13.34.180.
(b) Amendment of Petition. A petition may be amended as provided in
rule 3.5.
(c) Answer. A party may answer a petition as provided in rule 3.6.
RULE JuCR 4.3
NOTICE OF TERMINATION HEARING
(a) Generally. Notice of the termination hearing and a copy
of the petition shall be served on all parties in the manner
defined by RCW 13.34.070(8) or published in the manner defined by RCW 13.34.080.
(b) Indian Children. If the petitioner knows or has reason to
know that the juvenile is an Indian child as defined by the
federal Indian Child Welfare Act, the petitioner shall notify the
child's tribe in the manner required by RCW 13.34.070(10) and 25 U.S.C. 1912.
[Amended effective September 1, 1987; September 1, 1997,]
RULE 5.1
INVOKING JURISDICTION OF JUVENILE COURT
Juvenile court jurisdiction is invoked over a proceeding
for a child in need of services by filing a petition.
RULE 5.2
PLEADINGS
(a) Petition. A petition requesting an out-of-home
placement, conforming to the requirements of rule 3.3, may
be filed by a child or a child's custodial parent, legal
custodian, or guardian pursuant to RCW 13.32A.030(13), RCW
13.32A.120(2) or (3), RCW 13.32A.150, or by the Department
of Social and Health Services pursuant to RCW 13.32A.140.
(b) Venue. The petition shall be filed in the county
where the custodial parent, legal custodian, or guardian
resides.
(c) Amendment of Petition. A petition may be amended as
provided in rule 3.5.
(d) Answer. A party may answer a petition as provided in
rule 3.6.
JuCR RULE 5.3
SCHEDULING OF FACT-FINDING HEARING
When a proper petition has been filed, pursuant to RCW
13.32A.160 the court shall schedule a fact-finding hearing upon
the question of out-of-home placement. For a child who resides in
a place other than his or her parent's home and other than an out-
of-home placement as defined in RCW 13.32A.030, a hearing shall
be held within 5 calendar days unless the last calendar day is a
Saturday, Sunday, or holiday, in which case the hearing shall be
held on the preceding judicial day. For a child living at home
or in an out-of-home placement, a hearing shall be held within 10 days.
Pursuant to 1997 C146 §6 amending RCW 13.32A.160.
[Amended effective September 1, 1987; September 1, 1997; September 1, 1999.]
RULE 5.4
NOTICE OF FACT-FINDING HEARING
The notice required by RCW 13.32A.160 shall be given in
accordance with rule 11.2. The notice shall also include the
following:
(1) Right to Lawyer. A statement advising the parents of
their right to be represented by a lawyer at the hearing
and, if the parents are indigent, that one will be appointed
for them in accordance with rule 9.2;
(2) Consequences of Petition Approval. A statement
advising the parties that if the court approves the
petition, the child will be placed in a residence outside
the parental home as determined by the court or by the
Department of Social and Health Services, and that the
parents will not be relieved of financial responsibility for
the child unless the parents oppose placement and
continuously seek reconciliation with and return of the
child;
(3) Consequences of Petition Disapproval. A statement
advising the parties that if the court disapproves the
petition, the court will order the child to remain at or
return to the home of his or her parent;
(4) Right To Present Evidence. A statement advising the
parties that they will be allowed to present evidence at the
hearing on the petition.
RULE 5.5
PROCEDURE AT FACT-FINDING HEARING
The fact-finding hearing to consider a proper child in
need of services petition shall be held in accordance with
RCW 13.32A.170.
RULE 5.6
DISPOSITION HEARING
(a) Time. A disposition hearing shall be held within 14
days after approval of a temporary out-of-home placement.
(b) Notice. The notice of the disposition hearing
required by RCW 13.32A.179(1) shall be given to the parties
and to the Department of Social and Health Services in
accordance with rule 11.2.
(c) Hearing. The hearing to consider the disposition
plan shall be held in accordance with RCW 13.32A.179.
RULE 5.7
REVIEW HEARING
The court shall schedule a review of a dispositional
order of an out-of-home placement within 3 months of the
placement. The notice of the review hearing required by RCW
13.32A.190 may be given to the parties at the placement
hearing, or they may be notified in accordance with rule
11.2. The hearing shall be conducted in accordance with RCW
13.32A.190.
Rule 5A.1
Invoking Jurisdiction of Juvenile Court
Juvenile court jurisdiction is invoked over an At-Risk
Youth by filing a petition.
JuCR
Rule 5A.2
Scheduling of Fact-Finding Hearing
When a proper petition has been filed, pursuant to RCW
13.32A.192 the court shall schedule a fact-finding hearing. For a
child who resides in a place other than his or her parent's home
and other than an out-of-home placement as defined in RCW
13.32A.030, a hearing shall be held within 5 calendar days unless
the last calendar day is a Saturday, Sunday, or holiday, in which
case the hearing shall be held on the preceding judicial day.
For a child living at home or in an out-of-home placement, a
hearing shall be held within 10 days.
Pursuant to 1997 C146 sec 8 amending RCW 13.32A.192.
Rule 5A.3
Notice of Fact-Finding Hearing
The notice required by RCW 13.32A.192 shall be given in
accordance with rule 11.2. The notice shall also include
the following:
(1) Right to Lawyer. A statement advising the parent
of their right to be represented by an attorney at their own
expense;
(2) Consequences of Petition Approval. A statement
advising the parties of the legal consequences should the
court find the child to be an at-risk youth;
(3) Right to Present Evidence. A statement advising the
parties that they will be allowed to present evidence at the
hearing on the petition.
Rule 5A.4
Procedure at Fact-Finding Hearing
The fact-finding hearing to consider a proper at-risk
youth petition shall be held in accordance with RCW
13.32A.194.
Rule 5A.5
Disposition Hearing
(a) Time. The hearing to consider a disposition plan
shall be held within 14 days after the fact-finding hearing
of an at-risk youth petition.
(b) Notice. The notice of the disposition hearing
required by RCW 13.32A.194 shall be given to the parties and
may be given to the Department of Social and Health Services
in accordance with rule 11.2.
(c) Hearing. The hearing to consider the disposition
plan shall be held in accordance with RCW 13.32A.196.
Rule 5A.6
Review Hearing
Upon making a disposition regarding an adjudicated at-
risk youth, the court shall schedule the matter for review
with 3 months. The notice of the review hearing required by
RCW 13.32A.198(1) may be given to the parties at the
disposition hearing, or they may be notified in accordance
with rule 11.2. The Hearing shall be conducted in accordance
with RCW 13.32A.198.
RULE 6.1
ELIGIBILITY FOR DIVERSION
A juvenile's eligibility for diversion shall be determined pursuant to
RCW 13.40.070 and .080.
RULE 6.2
RIGHT TO CONSULT WITH A LAWYER
(a) Advice of Right to Representation by Lawyer. A juvenile found
eligible for diversion shall, prior to the initial interview with the
diversion unit, be advised of his or her right to consult with a lawyer
concerning the juvenile's decision to enter into a diversion agreement or
to appear in juvenile court.
(b) Appointment of Lawyer. The court shall appoint a lawyer for any
juvenile who is financially unable to obtain a lawyer for the consultation
if the juvenile does not waive that right pursuant to rule 6.3.
(c) Retained Lawyer During Diversion Process. A juvenile may be
represented by a retained lawyer during the diversion process in accordance
with RCW 13.40.080(6).
RULE 6.3
WAIVER OF RIGHT TO LAWYER
A waiver containing the following statements and in substantially the
following form shall be read by, signed by, and a copy given to a juvenile
who waives the right to consult with a lawyer before an initial interview
with a diversion unit:
Waiver of Lawyer
1. I know that I can talk to a lawyer about whether I should enter into
a diversion process and will not have to pay for one if I cannot afford it.
2. I know that a lawyer can look at my police reports, tell me about
the law, help me understand my rights, and help me decide whether I should
enter into a diversion process or go to juvenile court.
Dated ________________________ Dated _____________________________
______________________________ ___________________________________
Parent or Guardian (optional) Juvenile
The above statement was read to the juvenile and signed by the juvenile on
the date indicated.
___________________________________
Representative of Diversion Unit
JuCR
RULE 6.4
ADVICE ABOUT DIVERSION PROCESS
(a) Advice When Confinement Possible. A juvenile alleged
to have committed an offense for which an adult could be
confined shall be given a copy of a statement in
substantially the following form during the initial
interview with a diversion unit. The statement shall also be
read by, or read to, the juvenile before the juvenile signs
the statement.
Advice About Diversion
1. Diversion is a different way of dealing with
juveniles who are charged with an offense. You do not go to
court and there is no trial before a judge.
2. A diversion agreement is a contract between you and
the diversion unit. A diversion agreement may require you to
do certain things, such as community service, attend a
counseling, informational, or educational interview, or make
restitution, but you cannot be sent to jail. Under certain
circumstances you may be counseled and released, which means
no further action will be required of you.
3. If you sign a diversion agreement, or if you are
counseled and released, the offense with which you are
charged and any diversion agreement will be part of your
criminal history. When you have a criminal history, (A) you
may not necessarily be permitted to participate in diversion
for other offenses you have committed or may commit in the
future, and (B) you may be given a longer sentence for other
offenses you have committed or may commit in the future.
4. Your criminal history for this offense will show
whether or not you have completed the terms of this
diversion agreement.
5. Your criminal history may be available to the
police, the prosecutor, the court, and the diversion unit.
6. If you do not follow the diversion agreement, the
prosecutor may bring you to a hearing for the offenses with
which you are charged. If you do not appear at the court
hearing, the court may order that you be arrested.
7. When you are 18 years old, you may ask the court to
destroy all records on this offense if your criminal history
consists of only one diversion and 2 years have passed since
you completed the diversion agreement.
8. You have the right to talk to a lawyer about whether
you should participate in diversion or whether you should go
to court. You will not have to pay for a lawyer if you
cannot afford it. If you do not believe you committed this
offense, you should talk to a lawyer.
9. When you agree to participate in the diversion
process, you do not have the right to have a free lawyer
appointed for you to help you work out a diversion
agreement, but you do have the right to have a lawyer help
you work out a diversion agreement if you can afford to pay
for it.
10. You do not have to participate in diversion. If you
do not participate, your case will go to court if charges
are filed by the prosecutor. If your case goes to court, you
can have a lawyer to represent you, and you will not have to
pay for the lawyer if you cannot afford it. If you are found
guilty in court, the maximum penalty cannot be greater than
the maximum penalty the diversion unit may impose.
11. I have been informed and fully understand that if
the offense for which I have entered into a diversion
agreement is a violation of RCW 66.44, 69.41, 69.50, or
69.52, and I was 13 years of age or older when the offense
was committed, the diversion agreement will result in the
suspension or revocation of my privilege to drive. (If not
applicable, this paragraph should be crossed out and
initialed by the offender.)
12. I have been informed and fully understand that if I
am enrolled in a common school, the court will notify the
principal of my diversion agreement if the offense for which
I am entering into a diversion agreement is a violent
offense as defined in RCW 9.94A.030; a sex offense as
defined in RCW 9.84A.030; inhaling toxic fumes under chapter
9.47A RCW; a controlled substance violation under chapter
69.50 RCW; a liquor violation under RCW 66.44.270; or any
crime under chapters 9A.36, 9A.40, 9A.46, and 9A.48 RCW. (If
not applicable, this paragraph should be crossed out and
initialed by the offender.)
13. I have read or someone has read to me everything
printed above, and I understand it. I have been given a copy
of this statement.
Dated ________________________ Dated _______________________
______________________________ _____________________________
Parent or Guardian (optional) Juvenile
The above statement was read to the juvenile and signed by
the juvenile on the date indicated.
___________________________________
Representative of Diversion Unit
If applicable:
I am fluent in the __________ language and I have
translated this entire document for the juvenile from
English into that language. The juvenile has acknowledged
his or her understanding of both the translation and the
subject matter of this document. I certify under penalty of
perjury under the laws of the State of Washington that the
foregoing is true and correct.
Dated this _____ day of ___________, 19___, at ___________, Washington.
___________________________________
Interpreter
(b) Advice When No Confinement Possible. A juvenile
alleged to have committed a traffic infraction or an offense
for which an adult could not be confined shall be given a
copy of a statement in substantially the following form
during the initial interview with a diversion unit. The
statement shall also be read by, or read to, the juvenile
before the juvenile signs the statement.
Advice About Diversion
1. Diversion is a different way of dealing with
juveniles who are charged with an offense. You do not go to
court and there is no trial before a judge.
2. A diversion agreement is a contract between you and
the diversion unit. If you are alleged to have committed a
traffic infraction, a diversion agreement requires you to do
community service or attend educational or counseling
sessions. If you are alleged to have committed some other
offense, a diversion agreement may require you to do certain
things, such as community service, attend a counseling,
informational, or educational interview, or make
restitution, but you cannot be sent to jail. Under certain
circumstances you may be counseled and released, which means
no further action will be required of you.
3. If you do not follow the diversion agreement, the
prosecutor may bring you to a hearing for the offenses with
which you are charged. If you do not appear at the court
hearing, the court may order that you be arrested.
4. When you are 18 years old, you may ask the court to
destroy all records on this offense if your criminal history
consists of only one diversion and 2 years have passed since
you completed the diversion agreement.
5. You have the right to talk to a lawyer about whether
you should participate in diversion or whether you should go
to court. You will not have to pay for a lawyer if you
cannot afford it. If you do not believe you committed this
offense, you should talk to a lawyer.
6. When you agree to participate in the diversion
process, you do not have the right to have a free lawyer
appointed for you to help you work out a diversion agreement
but you do have the right to have a lawyer help you work out
a diversion agreement if you can afford to pay for it.
7. You do not have to participate in diversion. If you
do not participate, your case will go to court if charges
are filed by the prosecutor. If your case goes to court, you
can talk to a lawyer but you may have to pay for it. If you
are found guilty in court, the maximum penalty cannot be
greater than the maximum penalty the diversion unit may
impose.
8. If you are charged with a traffic infraction and
agree to diversion, the diversion unit may notify the
Department of Licensing. This may affect your driving
privileges.
9. I have read or someone has read to me everything
printed above, and I understand it. I have been given a copy
of this statement.
Dated _______________________ Dated _____________________________
_______________________________ __________________________________
Parent or Guardian (optional) Juvenile
The above statement was read to the juvenile and signed by
the juvenile on the date indicated.
___________________________________
Representative of Diversion Unit
If applicable:
I am fluent in the __________ language and I have
translated this entire document for the juvenile from
English into that language. The juvenile has acknowledged
his or her understanding of both the translation and the
subject matter of this document. I certify under penalty of
perjury under the laws of the State of Washington that the
foregoing is true and correct.
Dated this _____ day of ___________, 19___, at ___________, Washington.
___________________________________
Interpreter
In addition to amendments proposed for grammatical purposes,
under "Advise when confinement is possible.": #7 and #9 are
deleted pursuant to 1997 C338 ' 40, amending RCW 13.050.050;
#11 is added pursuant to 1988 C148 ' 2, and #12 is added
pursuant to 1997 C266 ' 7, amending RCW 13.04.155. Under
"Advise when no confinement possible": #4 and #6 are deleted
pursuant to 1997 C338 ' 40, amending RCW 13.050.050.
(Amended September 1, 1999)
RULE 6.5
ADVICE OF RIGHTS AND EFFECT OF DIVERSION
(RESCINDED)
RULE 6.6
TERMINATION OF DIVERSION AGREEMENT
(a) Petition. The procedure to seek termination of a diversion
agreement is to file a petition in juvenile court alleging that the
juvenile has substantially violated the terms of the diversion agreement.
The petition shall include a statement of:
(1) The offense which the juvenile was alleged to have committed;
(2) The terms of the diversion agreement; and
(3) The alleged violation of the diversion agreement.
(b) Preliminary Hearing if Juvenile Is in Detention. A juvenile may not
be taken into custody and held in detention solely for an alleged violation
of a diversion agreement. RCW 13.40.040 and 13.40.050 are the only
authority for taking a juvenile into custody and holding the juvenile in
detention. If a juvenile alleged to have violated a diversion agreement is
held in detention on some other basis, a preliminary hearing on the
petition for termination shall be held within 72 hours after taking the
juvenile into custody, excluding Saturdays, Sundays, and holidays. Notice
of the hearing shall be given in accordance with rule 11.2. At the hearing
the court shall determine whether probable cause exists to believe the
allegations in the petition, whether the petition is contested, and, in
accordance with rule 7.4, whether continued detention is necessary. If the
petition is contested and the juvenile is held in detention, the hearing on
the petition shall be held within 14 days of the date of the preliminary
hearing. If the petition is uncontested, the court may proceed immediately
with the hearing on the petition to terminate the diversion agreement.
(c) Scheduling and Notice of Hearing. The court shall schedule a
hearing on the allegations in the petition with reasonable speed, except
that when a juvenile is held in detention, the hearing shall be scheduled
in accordance with section (b) of this rule. A copy of the petition and
written notice of the hearing, containing the date, time, and other
information required by RCW 13.40.080(6), shall be given the juvenile in
accordance with rule 11.2. The notice shall also state that an information
may be filed on the original offense.
(d) Disclosure of Evidence. All evidence to be offered against the
juvenile shall be disclosed to the juvenile a reasonable time prior to the
hearing.
(e) Procedure at Hearing. The court shall hold a hearing on the
allegations made in the petition. At the hearing the juvenile shall have
the opportunity to be heard in person, to present evidence, and to confront
and cross-examine all adverse witnesses.
(f) Burden of Proof and Order Terminating Diversion Agreement. The
petitioner must prove by a preponderance of the evidence that the
allegations in the petition are true and that they are a substantial
violation of the diversion agreement. If the court finds that the
petitioner has met this burden of proof, it may order the termination of
the diversion agreement. An order terminating a diversion agreement shall
include a written statement of the evidence relied upon by the court and
the reasons for the termination.
(g) Consolidation of Termination Hearing With Adjudication of Offense.
When the diversion unit has referred the case to the prosecuting attorney,
and the prosecutor has filed an information, the court may schedule the
hearing on the allegations in the petition to terminate the diversion
agreement for the same time and place as the adjudicatory hearing on the
allegations in the information. In that case, the court shall hold a
hearing in accordance with this rule and make a finding with respect to the
allegations in the petition before conducting the adjudicatory hearing on
the allegations in the information.
RULE 7.1
INVOKING JUVENILE COURT JURISDICTION
Juvenile court jurisdiction is invoked over a juvenile offense
proceeding by filing an information.
RULE 7.2
INFORMATION
(a) Content. (Reserved. See RCW 13.40.070.)
(b) Amendment. An information may be amended at any time. The court
shall grant additional time if necessary to insure a full and fair hearing
on any new allegations in the amended information.
RULE JuCR 7.3
DETENTION AND RELEASE
(a) Time for First Appearance Generally. A juvenile who has
been taken into custody without a warrant and who is to be
detained or released on any conditions other than the promise to
appear in court at subsequent hearings must receive a judicial
determination on the issues of probable cause no later than 48
hours following the juvenile's arrest.
(b) Determination of Probable Cause. The court shall
determine probable cause based on an affidavit, a document as
provided in RCW 9A.72.085 or any law amendatory thereto, or sworn
testimony. The sworn testimony shall be electronically or
stenographically recorded. The evidence shall be preserved. The
evidence shall be subject to constitutional limitations for
probable cause determinations and may be hearsay in whole or in part.
(c) If No Information Filed Before Custody. If a juvenile
alleged to have committed a juvenile offense is taken into
custody before an information is filed, the court shall make
every reasonable effort to conduct a hearing on the issue of
detention by the end of the next judicial day. The juvenile shall
be released unless an information is filed within 72 hours
(excluding Saturdays, Sundays, and holidays) after taking the
juvenile into custody. In the absence of any prior determination,
a juvenile held in detention after the filing of an information
shall be given a hearing to determine whether continued detention
is necessary. The juvenile shall be released unless this
determination is made within 72 hours (excluding Saturdays,
Sundays, and holidays) after the information has been filed.
(d) If Information Filed Before Custody. If a juvenile
alleged to have committed a juvenile offense is taken into
custody after an information has been filed and is held in
detention, the juvenile shall be given a hearing to determine
whether continued detention is necessary. The court shall make
every reasonable effort to conduct the hearing by the end of the
next judicial day. The juvenile shall be released unless this
determination is made within 72 hours (excluding Saturdays,
Sundays, and holidays) after the juvenile is taken into custody.
(e) If Motion Not Filed Before Custody. If a juvenile alleged
to have violated a diversion agreement, a conditional release
order, a disposition order, or a deferred adjudication or
deferred disposition order is taken into custody and held in
detention before a petition to terminate the diversion agreement,
a motion to modify the conditional release order or the
disposition order, or a motion to revoke the deferred
adjudication or deferred disposition order is filed, the court
shall make every reasonable effort to conduct a hearing on the
issue of detention by the end of the next judicial day. The
juvenile shall be released unless a motion is filed within 72
hours (excluding Saturdays, Sundays, and holidays) after taking
the juvenile into custody. In the absence of any prior
determination, a juvenile held in detention after the filing of a
motion shall be given a hearing to determine whether continued
detention is necessary. The juvenile shall be released unless t
his determination is made within 72 hours (excluding Saturdays,
Sundays, and holidays) after the juvenile is taken into custody.
(f) If Petition or Motion Filed Before Custody. If a juvenile
alleged to have violated a diversion agreement, a conditional
release order, a disposition order, or a deferred adjudication or
deferred disposition order is taken into custody and held in
detention after a petition to terminate the diversion agreement,
a motion to modify the conditional release order or the
disposition order, or a motion to revoke the deferred
adjudication or deferred disposition order is filed, the juvenile
shall be given a hearing within 72 hours (excluding Saturdays,
Sundays, and holidays) after taking the juvenile into custody, or
the juvenile shall be released.
[Amended effective September 1, 1987; December 16, 1988;
September 1, 1993; September 1, 1995; July 29, 1997; September 1, 1997.]
RULE 7.4
DETENTION HEARING
(a) Notice. The notice required by RCW 13.40.050(2) for a detention
hearing shall be given in accordance with rule 11.2.
(b) Procedure at Hearing. The detention hearing shall be held in
accordance with RCW 13.40.050(3) and (4). All parties shall have an
opportunity to present evidence and to be heard on the issue of continued
detention.
(c) Determination by Court Generally. At the hearing the court shall
determine whether continued detention is necessary under RCW 13.40.040.
(d) Determination That Detention Necessary. If the court finds that
continued detention is necessary, the court shall state on the record the
specific statutory provision and the facts on which the court based its
order for continued detention. The juvenile may nevertheless be released
upon posting of a bond and the imposition of conditions upon such release
pursuant to RCW 13.40.040(4).
(e) Determination That Detention Not Necessary. If the court at the
detention hearing determines that continued detention is not necessary, the
juvenile shall be ordered released on personal recognizance. The court may
impose conditions on the release pursuant to RCW 13.40.050(6).
RULE 7.5
ISSUANCE OF SUMMONS OR WARRANT
(a) Generally. When an information is filed, the court may direct the
clerk to command the juvenile and others to appear at a specified time and
place by the issuance of a summons, or the court may direct the clerk to
issue a warrant for the arrest of the juvenile, or the court may direct the
clerk to notify the juvenile and others by other methods approved by local
court rule.
(b) Summons Preferred; Warrant Used Only Upon Showing of Probable
Cause. If the information charges only the commission of a misdemeanor or a
gross misdemeanor, the court shall direct the clerk to command the presence
of the juvenile by the issuance of a summons or other method approved by
local court rule instead of a warrant, unless the court finds probable
cause to believe that the juvenile would not appear in response to the
command or probable cause to believe that the arrest is necessary to
prevent serious bodily harm to the juvenile or another, or serious loss of
or harm to property, in which case the court may issue a warrant. A warrant
of arrest must be supported by an affidavit or sworn testimony, which shall
be recorded electronically or stenographically, establishing the grounds
for issuing the warrant. The finding of probable cause may be based on
evidence that is hearsay in whole or in part.
(c) Requirements of a Summons.
(1) Generally. (Reserved. See RCW 13.40.100.)
(2) Additional Contents of a Summons Directed to Juvenile. A summons
directed to a juvenile shall contain the following advisement:
Right to Lawyer
1. You have the right to talk to a lawyer, and if you cannot afford a
lawyer, one will be appointed for you.
2. A lawyer can look at the social and legal files in your case, talk
to the people involved in the offense proceeding, tell you about the law,
help you understand your rights and the possible consequences of being
found to be a juvenile offender, prepare any defense that you may have, and
present to the court possible sentences should you be found guilty.
(d) Service and Return of Summons.
(1) Service. A summons may be served as provided in RCW 13.40.100, or
it may be served by mailing the summons, postage prepaid, to the person
named in the summons.
(2) Return. The person to whom a summons has been delivered shall, on
or before the return date, file a return thereof with the judge before whom
the summons is returnable.
(e) Failure To Appear in Response to Summons. (Reserved. See RCW
13.40.100.)
(f) Requirements of a Warrant. The warrant shall be in writing and in
the name of the State of Washington, shall be signed by the clerk with the
title of his or her office, and shall state when issued and the county
where issued. It shall specify the name of the juvenile, or if his or her
name is unknown, any name or description by which the juvenile can be
identified with reasonable certainty. The warrant shall specify the offense
charged and shall command that the juvenile be arrested and brought
forthwith before the court issuing the warrant. The court issuing the
warrant shall set forth on the warrant the conditions for release,
including bail, pursuant to RCW 13.40.040.
(g) Execution and Return of Warrant.
(1) Execution. The warrant shall be directed to all peace officers in
the state or to probation counselors authorized to serve process pursuant
to RCW 13.04.040. The warrant shall be executed only by a peace officer or
probation counselor.
(2) Return. The officer executing a warrant shall make a return thereof
to the court before whom the juvenile is brought pursuant to these rules.
At the request of the prosecuting attorney any unexecuted warrant shall be
returned to the juvenile court and canceled. For reasonable cause, the
court itself may order that the warrant be returned to the court.
(h) Defective Summons or Warrant.
(1) Amendment. No juvenile appearing in response to a summons or
arrested under a warrant shall be discharged from custody or dismissed
because of any irregularity in the summons or warrant, but the summons or
warrant may be amended to remedy any such irregularity.
(2) Issuance of New Summons or Warrant. If, during the preliminary
examination of any juvenile appearing in response to the summons or
arrested under a warrant, it appears that the warrant or summons does not
properly name or describe the juvenile or the offense charged, or that
although not guilty of the offense specified in the summons or warrant,
there is reasonable ground to believe that the juvenile is guilty of some
other offense, the judge shall not discharge or dismiss the juvenile but
may allow a new information to be filed and shall thereupon issue a new
summons or warrant.
JuCR
RULE 7.6
ARRAIGNMENT AND PLEAS
(a) Time and Procedure for Arraignment. A juvenile who
is detained or subject to conditions of release must be
arraigned within 14 days after the information or indictment
is filed. The procedure for the arraignment of an alleged
juvenile offender is governed by CrR 4.1.
(b) Plea. The taking of a plea of an alleged juvenile
offender is governed by CrR 4.2.
(c) Advice of Standard Sentence. Before entering a plea,
the juvenile should be advised of the standard sentence for
the offense charged, and should be advised of the criminal
history upon which the standard sentence is based.
(d) Effect of Motion To Decline Jurisdiction. If a
decline hearing is requested or required, then the juvenile
court has no jurisdiction to accept a plea until a decline
hearing is held and an order is entered retaining
jurisdiction in the juvenile court. The time limit for the
adjudicatory hearing under rule 7.8 does not begin to run
until the day after the entry of the order retaining
jurisdiction.
(e) Determination of Capacity. When a determination of
capacity is required pursuant to RCW 9A.04.050, a hearing to
determine the juvenile's capacity shall be held within 14
days from the juvenile's first court appearance, separate
from and prior to arraignment. Notice of the hearing to
determine capacity and its purpose shall be given in
accordance with rule 11.2.
The revision provides clarification with regard to
applicability and addresses implementation problems caused
by linking the time for the capacity hearing to the filing
of the information.
(Amended September 1, 1999)
7.7 STATEMENT OF JUVENILE ON PLEA OF GUILTY (IN WORD FORMAT) The contents of this item are only available on-line.
RULE JuCR 7.8
TIME FOR ADJUDICATORY HEARING
(a) General Provisions.
(1) Responsibility of Court. It shall be the responsibility
of the court to ensure an adjudicatory hearing in accordance with
the provisions of this rule to each person charged with a juvenile offense.
(2) Definitions. For purpose of this rule:
(i) "Pending charge" means the charge for which the
allowable time for trial is being computed.
(ii) "Related charge" means a charge based on the same
conduct as the pending charge that is ultimately filed in juvenile court.
(iii) "Appearance" means the juvenile's physical presence
in the court where the pending charge was filed. Such presence
constitutes appearance only if (A) the prosecutor was notified of
the presence and (B) the presence is contemporaneously noted on
the record under the cause number of the pending charge.
(iv) "Arraignment" means the date determined under JuCR 7.6 and CrR 4.1(b)
(v) "Held in detention" means held in the custody of a
detention facility pursuant to the pending charge. Such
detention excludes any period in which a juvenile is on
electronic home monitoring, is being held on an unrelated charge
or hold, or is serving a sentence of confinement.
(3) Construction. The allowable time for the adjudicatory
hearing shall be computed in accordance with this rule. If a
hearing is timely under the language of this rule but was delayed
by circumstances not addressed in this rule or JuCR 7.6, the
pending charge shall not be dismissed unless the juvenile's
constitutional right to a speedy trial was violated.
(4) Related Charges. The computation of the allowable time
for the adjudicatory hearing on a pending charge shall apply
equally to all related charges.
(5) Reporting of Dismissals and Untimely Hearings. The court
shall report to the administrative Office of the Courts, on a
form determined by that office, any case in which
(i) the court dismissed a charge on determination
pursuant to section (h) that the charge had not been brought to
hearing within the time limit required by this rule, or
(ii) the time limits would have been violated absent the
cure period authorized by section (g).
(b) Time for Adjudicatory Hearing.
(1) Juvenile Held in Detention. A juvenile who is held in
detention shall be brought to hearing within the longer of
(i) 30 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5).
(2) Juvenile Not Held in Detention. A juvenile who is not
held in detention shall be brought to hearing within the longer of
(i) 60 days after the commencement date specified in this rule, or
(ii) the time specified in subsection (b)(5)
(3) Release of Juvenile. If a juvenile is released from detention before
the 30 day time limit has expired, the limit shall be extended to 60 days.
(4) Return to Detention following Release. If a juvenile was
not held in detention at the time the hearing date was set but is
subsequently returned to detention on the same or related charge,
the 60-day limit shall continue to apply. If the juvenile is
held in detention when the hearing is reset following a new
commencement date, the 30-day limit shall apply.
(5) Allowable Time after Excluded Period. If any period of
time is excluded pursuant to section (e), the allowable time for
the adjudicatory hearing shall not expire earlier than 15 days
after the end of that excluded period.
(c) Commencement date.
(1) Initial Commencement Date. The initial commencement date
shall be the date of arraignment as determined under JuCR 7.6 and CrR 4.1
(2) Resetting of Commencement Date. On occurrence of one of
the following events, a new commencement date shall be
established, and the elapsed time shall be reset to zero. If
more than one of these events occurs, the commencement date shall
be the latest of the dates specified in this subsection.
(i) Waiver. The filing of a written waiver of the
juvenile's rights under this rule signed by the juvenile. The
new commencement date shall be the date specified in the waiver,
which shall not be earlier than the date on which the waiver was
filed. If no date is specified, the commencement date shall be
the date of the hearing contemporaneously or subsequently set by the court.
(ii) Failure to Appear. The failure of the juvenile to
appear for any proceeding at which the juvenile's appearance was
required. The new commencement date shall be the date of the
juvenile's next appearance.
(iii) New Adjudicatory Hearing. The entry of an order
granting a mistrial or new adjudicatory hearing or allowing the
juvenile to withdraw a plea of guilty. The new commencement date
shall be the date the order is entered.
(iv) Appellate Review or Stay. The acceptance of review
or grant of a stay by an appellate court. The new commencement
date shall be the date of the juvenile's appearance that next
follows the receipt by the clerk of the juvenile court of the
mandate or written order terminating review or stay.
(v) Collateral Proceeding. The entry of an order
granting a new adjudicatory hearing pursuant to a person
restraint petition, a habeas corpus proceeding, or a motion to
vacate judgment. The new commencement date shall be the date of
the juvenile's appearance that next follows either the expiration
of the time to appeal such order or the receipt by the clerk of
the juvenile court of notice of action terminating the collateral
proceeding, whichever comes later.
(vi) Change of Venue. The entry of an order granting a
change of venue. The new commencement date shall be the date of the order.
(vii) Disqualification of Counsel. The disqualification
of the defense attorney or prosecuting attorney. The new
commencement date shall be the date of the disqualification.
(d) Setting of Hearing Date---Notice---Objections---Loss of Right to Object.
(1) Initial Setting of Hearing Date. The court shall, within
15 days of the juvenile's actual arraignment in juvenile court,
set a date for the adjudicatory hearing which is within the time
limits prescribed by this rule and notify counsel for each party
of the date set. If a juvenile is not represented by counsel,
the notice shall be given to the juvenile and may be mailed to
the juvenile's last known address. The notice shall set forth
the proper date of the juvenile's arraignment and the date set for the hearing.
(2) Resetting of Hearing Date. When the court determines
that the hearing date should be reset for any reason, including
but not limited to the applicability of a new commencement date
pursuant to subsection (c)(2) or a period of exclusion pursuant
to section (e), the court shall set a new date for the hearing
which is within the time limits prescribed and notify each party of the date set.
(3) Objection to Hearing Date. A party who objects to the
date set upon the ground that it is not within the time limits
prescribed by this rule must, within 10 days after the notice is
mailed or otherwise given, move that the court set an
adjudicatory hearing within those time limits. Such motion shall
be promptly noted for hearing by the moving party in accordance
with local procedures. A party who fails, for any reason, to
make such a motin shall lose the right to object that an
adjudicatory hearing commenced on such a date is not within the
time limits prescribed by this rule.
(4) Loss of Right to Object. If a hearing date is set
outside the time allowed by this rule, but the defendant lost the
right to object to that date pursuant to subsection (d)(3), that
date shall be treated as the last allowable date for the
adjudicatory hearing, subject to section (g). A later hearing
date shall be timely only if the commencement date is reset
pursuant to subsection (c)(2) or there is a subsequent excluded
period pursuant to section (e) and subsection (b)(5).
(e) Excluded Periods. The following periods shall be excluded
in computing the time for the adjudicatory hearing:
(1) Competency Proceedings. All proceedings related to the
competency of the juvenile to participate in the hearing on the
pending charge, beginning on the date when the competency
examination is ordered and terminating when the court enters a
written order finding the juvenile to be competent.
(2) Proceedings on Unrelated Charges. Arraignment, pre-
adjudicatory hearing proceedings, adjudicatory hearing, and
disposition hearing on an unrelated charge.
(3) Continuances. Delay granted by the court pursuant to section (f).
(4) Period between Dismissal and Refiling. The time between
the dismissal of a charge and the refilling of the same or related charge.
(5) Disposition of Related Charge. The period between the
commencement of an adjudicatory hearing or the entry of a plea of
guilty on one charge and the juvenile's arraignment in superior
court on a related charge.
(6) Juvenile Subject to foreign or Federal Custody or
Conditions. The time during which a juvenile is detained outside
the state of Washington or in a federal facility and the time
during which a juvenile is subject to conditions of release not
imposed by a court of the State of Washington.
(7) Unavoidable or Unforseen Circumstances. Unavoidable or
unforeseen circumstances affecting the time for the adjudicatory
hearing beyond the control of the court or the parties. This
exclusion also applies to the cure period of section (g).
(8) Motion for Revision. When amotion for revision of a
court commissioner's ruling is filed, the time between the court
commissioner's ruling and an order deciding the motion.
(9) Disqualification of Judge. A five-day period of time
commencing with the disqualification of the judge to whom the
case is assigned for the adjudicatory hearing.
(f) Continuances. Continuances or other delays may be granted as follows:
(1) Written Agreement. Upon written agreement of the
parties, which must be signed by the alleged juvenile offender or
all the alleged offenders, the court may continue the hearing
date to a specified date.
(2) Motion by the Court or a Party. On motion of the court
or a party, the court may continue the hearing to a specified
date when such continuance is required in the administration of
justice and the juvenile will not be prejudiced in the
presentation of his or her defense. The motion must be made
before the time for the adjudicatory hearing has expired. The
court must state on the record or in writing the reasons for the
continuance. The bringing of such motion by or on behalf of any
party waives that party's objection to the requested delay.
(g) Cure Period. The court may continue the case beyond the
limits specified in section (b) on motion of the court or a party
made within five days after the time for the adjudicatory hearing
has expired. Such a continuance may be granted only once in the
case upon a finding on the record or in writing that the juvenile
will not be substantially prejudiced in the presentation of his
or her defense. The period of delay shall be for no more than 7
days for a juvenile who is held in detention, or 28 days for a
juvenile not held in detention, from the date that the
continuance is granted. The court may direct the parties to
remain in attendance or be on-call for hearing assignment during
the cure period.
(h) Dismissal With Prejudice. A charge not brought to
adjudicatory hearing within the time limit determined under this
rule shall be dismissed with prejudice. The State shall provide
notice of dismissal to the victim and at the court's discretion
shall allow the victim to address the court regarding the impact
of the crime. No case shall be dismissed for time-to-hearing
reasons except as expressly required by this rule, a statute, or
the state or federal constitution.
[Amended effective September 1, 1987; July 29, 1997; May 29, 2001; September 1, 2003.]
RULE 7.9
JOINDER OF OFFENSES AND CONSOLIDATION
OF ADJUDICATORY HEARINGS
(a) Joinder of Offenses. The joinder of offenses in an information is
governed by CrR 4.3(a) and (c), where applicable.
(b) Consolidation of Adjudicatory Hearing. On motion of the prosecutor
or the alleged juvenile offender, or on its own motion, the court may, for
purposes of conducting the adjudicatory hearing, order that two or more
informations naming different juveniles be consolidated and heard at the
same time when two or more defendants could be joined in the same charge
pursuant to CrR 4.3(b).
RULE 7.10
SEVERANCE OF OFFENSES AND CONSOLIDATED HEARINGS
The severance of offenses and severance of consolidated hearings is
governed by CrR 4.4, where applicable.
RULE 7.11
ADJUDICATORY HEARING
(a) Burden of Proof. The court shall hold an adjudicatory hearing on
the allegations in the information. The prosecution must prove the
allegations in the information beyond a reasonable doubt.
(b) Evidence. The Rules of Evidence shall apply to the hearing, except
to the extent modified by RCW 13.40.140(7) and (8). All parties to the
hearing shall have the rights enumerated in RCW 13.40.140(7).
(c) Decision on the Record. The juvenile shall be found guilty or not
guilty. The court shall state its findings of fact and enter its decision
on the record. The findings shall include the evidence relied upon by the
court in reaching its decision.
(d) Written Findings and Conclusions on Appeal. The court shall enter
written findings and conclusions in a case that is appealed. The findings
shall state the ultimate facts as to each element of the crime and the
evidence upon which the court relied in reaching its decision. The findings
and conclusions may be entered after the notice of appeal is filed. The
prosecution must submit such findings and conclusions within 21 days after
receiving the juvenile's notice of appeal.
JuCR
RULE 7.12
DISPOSITION HEARING
(a) Time. A disposition hearing shall be held if the juvenile has
pleaded guilty or has been found guilty by the court. The hearing may
be held immediately following the juvenile's plea of guilty or
immediately following the adjudicatory hearing if found guilty by the
court. The disposition hearing may be continued for a period of up to
14 days after the plea or the conclusion of the hearing if the
juvenile is held in detention, or 21 days after the plea or the
conclusion of the hearing if the juvenile is not held in detention.
Either time may be extended by the court for good cause shown. Notice
of a continued hearing shall be given to all parties in accordance
with rule 11.2.
(b) Conduct of Hearing. The court shall conduct the hearing in
accordance with RCW 13.40.150. At the conclusion of the disposition
hearing, the court shall, in accordance with CrR 7.2(b), advise the
juvenile of the right to appeal, including when applicable the right
to appeal a sentence based upon a finding of manifest injustice.
(c) Criminal History--Definition. In determining the standard
range of disposition for a juvenile, the juvenile's criminal history
includes any criminal complaint alleging an offense and resulting in
one of the following prior to the commission of the current offense:
(1) A finding made prior to July 1, 1978, that the juvenile
committed an offense, if the allegation was required to be proven
beyond a reasonable doubt or if the juvenile admitted the allegation;
or
(2) A conviction or a plea of guilty on or after July 1, 1978; or
(3) Violations, as defined by RCW 13.40.020, committed on or after
July 1, 1998.
(d) Criminal History--Multiple Charges. If the juvenile has been
convicted of two or more charges arising out of the same course of
conduct, then only the highest charge is counted as criminal history.
If the juvenile has been convicted of two or more charges that did not
arise out of the same course of conduct, then all of the charges count
as criminal history, even though the charges may have consolidated
into a single disposition order.
(e) Disposition Based Upon Finding of Manifest Injustice. If the
court imposes a sentence based upon a finding of manifest injustice,
the disposition order shall set forth those portions of the record
material to the disposition.
(f) Disposition Requiring Detention in a State-Operated Juvenile
Detention Facility. If the court imposes a sentence requiring
commitment to the Division of Juvenile Rehabilitation of the
Department of Social and Health Services for detention, the copy of
the disposition order sent to the Division shall be accompanied by a
statement of the criminal history relied upon by the sentencing court.
(g) Judgment and Sentence. For every disposition order entered
pursuant to a juvenile court offense adjudication or deferred
adjudication, the court entering the order shall forward to the
Sentencing Guidelines Commission the information contained in the
order and such criminal history, demographic, and other information as
the Office of the Administrator for the Courts may prescribe. The
Administrator for the Courts, at the direction of the Supreme Court,
and after consulting with the Sentencing Guidelines Commission, shall
determine the method for transmitting this information from the court
to the Commission.
(Amended July 11, 1996)
Pursuant to 1997 C338 ' 12 amending RCW 13.40.0357.
(Amended September 1, 1999)
JuCR
RULE 7.13
RELEASE PENDING APPELLATE REVIEW
Pending appellate review of an order of adjudication or
disposition, the court may impose conditions on release as
provided in RCW 13.40.040(4) and 13.40.050(6).
Pursuant to 1997 C338 ' 35 amending RCW 13.40.230(5).
(Amended September 1, 1999)
RULE 7.14
MODIFICATION OF DISPOSITION ORDER
(a) Generally. The procedure for seeking a modification of a
disposition order is to file a motion in juvenile court. A disposition
order may only be modified in accordance with RCW 13.40.190 and 13.40.200.
(b) Who May File Motion. Any party may file a motion seeking
modification of a disposition order. The court may, on its own motion, seek
modification of a disposition order.
(c) Contents of Motion. The motion shall state the reason for seeking
modification and the nature of the modification sought.
(d) Preliminary Hearing if Juvenile Is in Detention. If a juvenile
alleged to have violated the terms of a disposition order is held in
detention, a preliminary hearing shall be held in accordance with rule
7.3(c) or (d). Notice of the hearing shall be given in accordance with rule
11.2. At the hearing the court shall determine whether probable cause
exists to believe the allegations in the motion, whether the petition is
contested, and, in accordance with rule 7.4, whether continued detention is
necessary. If the motion is contested and the allegation is not a juvenile
offense and the juvenile is held in detention, the hearing on the motion
shall be held within 7 days of the date of the preliminary hearing. If the
motion is contested, and the allegation is a juvenile offense, and the
juvenile is in detention, the hearing on the motion shall be held within 14
days of the date of the preliminary hearing. If the motion is uncontested,
the court may proceed immediately with the hearing on the motion.
(e) Scheduling and Notice of Hearing. The court shall schedule a
hearing on the allegations in the motion with reasonable speed, except that
when the juvenile is held in detention, the hearing shall be scheduled in
accordance with section (d) of this rule. Notice of the hearing may be
given in accordance with rule 11.2, or the court may issue a summons or a
warrant pursuant to rule 7.5.
7.15 WAIVER OF RIGHT TO COUNSEL (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 8.1
TIME FOR DECLINE HEARING
(a) Initiating Decline Hearing. If required or requested pursuant to
RCW 13.40.110, a decline hearing shall be scheduled and held separate from
and prior to the adjudicatory hearing.
(b) Time for Hearing in Felony Cases. In any case where declining
jurisdiction would allow criminal prosecution for a felony, the decline
hearing shall be held within 14 days after the information is filed unless
the time is extended by the court for good cause.
(c) Notice. Notice of the decline hearing and its purpose shall be
given in accordance with rule 11.2.
RULE 8.2
PROCEDURE AT DECLINE HEARING
The decline hearing shall be conducted in accordance with RCW
13.40.110(2). Any report or study to be presented to the court must be made
available to the opposing party for a reasonable period prior to the
hearing or reasonable time must be accorded the opposing party to respond.
RULE 9.1
CHILD IN NEED OF SERVICES AND AT RISK YOUTH PETITION -
MANDATORYAPPOINTMENT OF LAWYER
The court shall appoint a lawyer for a child in Child In
Need of Services or an At Risk Youth proceeding proceeding
when required by RCW 13.32A.160(1)(e)(a)(ii)(c) and RCW
13.32A.190(1), or 13.32A.192(1)(c).
RULE JuCR 9.2
ADDITIONAL RIGHT TO REPRESENTATION BY LAWYER
(a) Retained Lawyer. Any party may be represented by a retained lawyer in
any proceedings before the juvenile court.
(b) Child in Need of Services Proceedings. The court shall appoint a
lawyer for indigent parents of a juvenile in a child in need of services proceeding.
(c) Dependency and Termination Proceedings. The court shall provide a
lawyer at public expense in a dependency or termination proceeding as follows:
(1) Upon request of a party or on the court's own initiative, the court
shall appoint a lawyer for a juvenile who has no guardian ad litem and who is
financially unable to obtain a lawyer without causing substantial hardship to
himself or herself or the juvenile's family. The ability to pay part of the
cost of a lawyer shall not preclude assignment. A juvenile shall not be
deprived of a lawyer because a parent, guardian, or custodian refuses to pay
for a lawyer for the juvenile. If the court has appointed a guardian ad litem
for the juvenile, the court may, but need not, appoint a lawyer for the juvenile.
(2) Upon request of the parent or parents, the court shall appoint a
lawyer for a parent who is unable to obtain a lawyer without causing
substantial hardship to himself or herself or the juvenile's family. The
ability to pay part of the cost of a lawyer shall not preclude assignment.
(d) Juvenile Offense Proceedings. The court shall provide a lawyer at
public expense in a juvenile offense proceeding when required by RCW 13.40.080(10),
RCW 13.40.140(2) or rule 6.2.
(1) Before appointing a lawyer for an indigent person or at the first
appearance of the lawyer in the case, the court shall require the lawyer to
certify to the court that he or she complies with the applicable Standards for
Indigent Defense Services to be approved by the Supreme Court.
[Amended effective September 1, 1987; September 1, 1997; June 30, 2012].
9.2 STDS STANDARDS FOR INDIGENT DEFENSE (IN WORD FORMAT) The contents of this item are only available on-line.
RULE 9.3
RIGHT TO APPOINTMENT OF EXPERTS IN JUVENILE
OFFENSE PROCEEDINGS
(a) Appointment. A juvenile who is financially unable to obtain
investigative, expert, or other services necessary to an adequate defense
may request that these services be provided at public expense by a motion.
Upon finding that the services are necessary and that the juvenile is
financially unable to obtain them without substantial hardship to himself
or herself or the juvenile's family, the court shall authorize counsel to
obtain the services on the behalf of the juvenile. The ability to pay part
of the cost of the services shall not preclude the provision of those
services by the court. A juvenile shall not be deprived of necessary
services because a parent, guardian, or custodian refuses to pay for those
services. The court, in the interest of justice and on a finding that
timely procurement of necessary services could not await prior
authorization, may ratify services after they have been obtained.
(b) Compensation. The court shall determine reasonable compensation
for the services and direct payment to the organization or person who
rendered them on the filing of a claim for compensation supported by
affidavits specifying the time expended and the services, and expenses
incurred on behalf of the juvenile, and the compensation received in the
same case or for the same services from the juvenile or any other source.
RULE 10.1
SCOPE OF TITLE 10
Rule 10.2 relates to recording of juvenile court proceedings. Rule 10.3
relates to records as defined in RCW 13.50.010.
RULE 10.2
RECORDING JUVENILE COURT PROCEEDINGS
(a) Proceedings Other Than Juvenile Offense Proceedings. All juvenile
court proceedings which do not involve a juvenile offense shall be recorded
by any means which accurately records the proceedings in accordance with
RCW 2.32.200.
(b) Juvenile Offense Proceedings. All juvenile court proceedings
involving a juvenile offense shall be recorded verbatim by means which will
provide an accurate record and which can be subsequently reduced to written
form.
RULE 10.3
ACCESS OF PARENT TO RECORDS
(Rescinded. See RCW 13.50.010 through .250.)
RULE 10.4
MOTIONS CONCERNING JUVENILE RECORDS
(Rescinded. See RCW 13.50.010 through .250.)
RULE 10.5
ACCESS TO OFFICIAL JUVENILE COURT FILES
(Reserved. See RCW 13.50.010 through .250.)
RULE 10.6
CHALLENGING JUVENILE COURT RECORDS
(Reserved. See RCW 13.50.010 through .250.)
RULE 10.7
SEALING JUVENILE COURT RECORDS
(Reserved. See RCW 13.50.010 through .250.)
RULE 10.8
DESTRUCTION OF JUVENILE COURT RECORDS
(Reserved. See RCW 13.50.010 through .250.)
RULE 10.9
ONLY COMPLETE INFORMATION RELEASED
(Reserved. See RCW 13.50.010 through .250.)
RULE 11.1
COMPUTING TIME
Time shall be computed in accordance with CR 6 unless otherwise
provided by law or these rules.
RULE 11.2
NOTICE OF PROCEEDING
(a) Applicability. This rule applies whenever another Juvenile Court
Rule states that notice shall be given in accordance with this rule.
(b) Content of the Notice. The notice shall specify the time, place,
and purpose of the proceeding.
(c) Method of Giving Notice. Notice may be given by any means
reasonably certain of notifying the party, including, but not limited to,
notice in open court, mail, personal service, telephone, and telegraph.
Rule 11.3
Notice to Foster Parents, Preadoptive Parents, Nonrelative Caregivers, or
Relative Caregivers
(a) Applicability. This rule applies to all proceedings under Chapter
13.34 RCW to be held with respect to a child in foster care under the
responsibility of the Washington State Department of Social and Health
Services Children's Administration ("the Department"). The Department is
responsible for giving notice of such proceedings to the foster parents,
preadoptive parents, nonrelative caregivers or relative caregivers who are
providing care to the child at the time of the proceeding.
(b) Content of the Notice. The notice shall specify the time, place, and
purpose of the proceeding, and shall inform the foster parents, preadoptive
parents, nonrelative caregivers or relative caregivers of their right to be
heard in such proceedings.
(c) Method of Giving Notice. Notice may be given by any means reasonably
certain of notifying the foster parents, preadoptive parents, nonrelative
caregivers or relative caregivers, including but not limited to, notice in
open court, mail, personal service, telephone, telegraph and email.
(d) Time of Notice. Notice shall be provided at least five court days
before such proceedings; in cases where the foster child is placed with
the foster parents, preadoptive parents, nonrelative caregivers or relative
caregiver less than five court days before the proceeding, the Department
shall provide notice as soon as practicable before the proceeding.
(e) Verification of Notice. The Department shall provide the Court with
written verification of to whom, where, when, and how notice of the
proceeding was provided to the foster parents, preadoptive parents,
nonrelative caregivers or relative caregivers.
(f) Party Status Not Conferred. This rule does not confer party status
upon any foster parent, preadoptive parent, nonrelative caregivers or
relative caregiver solely on the basis of such notice and right to be heard
at a proceeding.
RULE 11.21
TITLE AND CITATION OF RULES
These rules are called the Juvenile Court Rules and may be cited as
JuCR.
RULE 11.22
RULES SUPERSEDED
Except as provided in rule 1.5, the Juvenile Court Rules originally
effective January 10, 1969, are superseded by these rules.
RULES 11.4 through 11.20
(RESERVED)
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