GR 9 COVER SHEET

Suggested Amendment to the SUPERIOR COURT CIVIL RULES (CR)

CR 12:  DEFENSES AND OBJECTIONS

Submitted by the Gender and Justice Commission

A.           Name of Proponent: Gender and Justice Commission

B.           Spokesperson: Elizabeth Hendren elizabeth@svlawcenter.org

C.           Purpose:

This request is based upon recommendations from the chapter authors of the 2021: How Gender and Race Affect Justice Now report.

Incarceration can have lifelong adverse consequences for incarcerated parents, their children, their loved ones, and their children’s caregivers. Strict timelines, along with barriers to obtaining court documents, mandatory court forms, and access to legal advice and information, can lead to an inability to participate in court processes which results in negative consequences for incarcerated parents in family law cases, especially for mothers. Incarcerated mothers are significantly more likely than incarcerated fathers to be primary caregivers prior to their incarceration. When incarcerated parent litigants are unable to respond and participate in court proceedings due to procedural barriers imposed by their incarceration, courts lack complete information. In fact, they are often forced to enter default orders. We can do better.

Civil Rule 12 governs response deadlines in family law cases as well as other civil cases. It provides generally 20 days for respondents who are personally served within the state of Washington to file a response. Incarcerated litigants often find it impossible to meet this deadline because they cannot access forms and legal information while incarcerated.

Federal funding restrictions on legal aid prohibit organizations that receive federal Legal Services Corporation funding from representing incarcerated litigants in court proceedings. In Washington, Northwest Justice Project, the largest statewide legal aid provider in Washington, receives federal Legal Services Corporation funding and is therefore prohibited from providing court representation to incarcerated litigants. Other statewide legal aid providers rely on other sources of funding to serve incarcerated individuals, but those providers do not represent parents in family law matters. As a result, incarcerated indigent parents in Washington usually must represent themselves.

But pro se litigants in jail, detention facilities, and prisons are unable to access mandatory court forms, legal information, and legal assistance in the same timely manner as other pro se litigants.

The Washington State Department of Corrections does not permit incarcerated litigants to access the internet due to safety concerns. This severely hampers the ability of pro se litigants to access the mandatory family law forms located on the courts’ website or free pro se assistance resources like WashingtonLawHelp. As a result, incarcerated litigants often must send written requests via regular mail to courts, legal services providers and other resources to obtain the forms and information necessary to respond to their legal actions.

While some state prisons have law libraries, the needed legal information within them is inaccessible in a timely manner to many litigants. Department of Corrections policy 590.500 prioritizes use of the law library for incarcerated individuals challenging their criminal sentence and/or confinement, civil rights, or dependency matters. Family law and other civil issues are not priority matters under the policy. Individuals wishing to use the law library for family law and other civil matters must wait behind individuals with what the Department of Corrections has deemed more urgent matters, a process that in some circumstances can take weeks. Four prisons in Washington do not have law libraries at all, so individuals in those facilities must request a transfer to use the law library at a facility that has one. Many jails and detention facilities similarly do not have law libraries or legal access at all.

Within this context, many incarcerated parent litigants are unable to respond to their family law matters within the 20 days dictated by Civil Rule 12. As a result, stakeholders and incarcerated parents report that many final orders are entered by default. Without the incarcerated parent’s response, the court lacks information about the facts surrounding a parent’s incarceration, their role prior to incarceration in their child’s life, and the options to remain engaged in their child’s life while incarcerated. This can result in dramatically less contact between a child and incarcerated parent than the full facts of the situation and best interests of the child require, not only for the period in which they are incarcerated but long after their release as well. Courts should have access to the full set of facts so that decisions can be based on the merits of each case.

The proposed change would allow incarcerated litigants more time to access law libraries, courts, legal services providers and other resources to obtain the mandatory forms and legal information necessary to respond to their legal actions while incarcerated. The proposed change would afford incarcerated litigants the same extended time period of 60 days that is afforded to respondents served out of state and by publication.

D.           Hearing: A hearing is not requested.

E.           Expedited Consideration: Expedited consideration is not requested.