Proposed Rules Archives

• Proposed Changes to RAP 5.3 - Content of Notice - Filing (in Word Format)
• Comments Received for RAP 5.3 - Content of Notice - Filing

PURPOSE: The Office of Public Defense (OPD) proposes the following changes to the RAP regarding the procedures for determining indigency for purposes of appeal. As the agency authorized to recommend standards for determining and verifying indigency, OPD has a strong interest in monitoring the procedures used for determining indigency. In addition, RAP 15.2(a) authorizes OPD to prescribe the form in which the motion for order of indigency must be filed and RAP 15(g) authorizes OPD to designate counsel for appointment to indigent parties on appeal.

1. RAP 5.3

   OPD proposes a change to RAP 5.3 in order to assist in the efficient appointment of appellate counsel for indigent parties, pursuant to RAP 15.2(g). The Court of Appeals does not appoint appellate counsel on appeal without an order of indigency entered in the trial court, and therefore indigent appeals cannot proceed before such an order has been entered.

   Presently, orders of indigency often are not included with the notice of appeal as part of the record on review. In fact, the Court of Appeals Division Two Clerk’s Office has reported that 30 percent of cases it receives involving an indigent party do not include an order of indigency. Divisions One and Three have indicated deficiencies as well.

   The absence of an order of indigency requires the Court of Appeals to contact trial counsel well after the expiration of trial to request that they go back to court to file a motion for order of indigency. While trial counsel has the duty to file a motion for order of indigency along with a notice of appeal, this duty is not clearly articulated in RAP 5.3. To complicate matters, RAP 5.3(j) states that the trial court clerk will assist criminal defendants in filing a motion for order of indigency.

   OPD’s proposed change to RAP 5.3(j) would clarify that trial counsel has the express duty to file a motion for order of indigency in the trial court, and that the trial court clerk need only assist unrepresented parties in filing documents for appeal. OPD intends that this proposal will eliminate unnecessary delay in the appellate process and decrease administrative costs for the Court of Appeals and trial courts in obtaining orders of indigency for appeal. The Division Two clerk’s office has expressed support for this amendment and has indicated that the clerks’ offices for the other divisions support it as well.
   

2. RAP 15.2 and Forms (12A) & 13

   OPD proposes a rule change to RAP 15.2 and corresponding forms in order to clarify and simplify the pleading requirements for determining indigency on appeal. RAP 15.2(b) requires the trial court to determine the indigency of a party seeking review at public expense. However, the rule does not specify the information required for appellate level indigency determinations. In fact, at the time of determining indigency for appeal, trial courts frequently already have made a determination of indigency for purposes of funding trial counsel. In its report entitled Update on Criteria and Standards for Determining and Verifying Indigency in October 2007, OPD found that almost all defendants who are indigent at trial are likewise found to be indigent on appeal. Because the court screens parties for indigency before trial, OPD recommends that the determination of indigency for appeal should simply require a reevaluation of the initial determination of indigency.

   OPD’s proposed rule change would direct trial courts to determine indigency for appeals based on a review of the previous determination of indigency made for purposes of trial. OPD also proposes a change to RAP Form 13 to allow a party to assert no change in financial status, since in cases where there has been no change the initial determination of indigency operates as a sufficient showing of indigency for appeal.

   Finally, OPD proposes several technical rule changes to RAP 15.2 to clarify the procedure for entering an order of indigency in cases governed under RAP 15.2(c). OPD also proposes to create a new form, RAP Form 12A, for a finding of indigency required in cases in which the Supreme Court must enter an order of indigency.

   OPD proposes the following specific changes:

   • RAP 15.2(a) Move the final sentence to subsection (c). Capitalize Office of Public Defense.

   • RAP 15.2(b) Add language allowing the trial court to determine indigency by reevaluating any previous order of indigency entered at trial. Correct citations to the RCW. Form 13 reflects these changes.

   • RAP 15.2(h) Indicate that a party may seek review of a Finding of Indigency entered by the trial court, pursuant to subsection (c). Proposed Form 12A creates a form to be used by the trial court for Findings of Indigency under subsection (c).