GR 9 COVER SHEET

Suggested Amendment to

WASHINGTON STATE COURT RULES:

GR 30

Submitted by the Submitted by the Board for Judicial Administration Legislative Committee, the Superior Court Judges’ Association Legislative Committee, and the District and Municipal Court Judges’ Association Legislative Committee

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A.        Name of Proponent:  Judge Kevin Ringus, Chair, BJA Legislative Committee

                                                     Judge Jennifer Forbes, Co-Chair, SCJA Legislative Cmte

                                                     Judge Sean O’Donnell, Co-Chair, SCJA Legislative Cmte

                                                     Judge Paul Wohl, Chair, DMCJA Legislative Committee

B.        Spokesperson:           J Benway, AOC Legal Services

C.        Purpose:      

Recent legislation, Laws of 2019, ch. 132, §§ 2 and 8, resulted in the repeal of two statutes referenced in GR 30, one effective in 2021 and one effective in 2019. To address the potential disruption caused by the legislative changes, and to prevent a legislative change necessitating a future rule change, GR 30 is proposed to be amended by (1) adding a definition that was previously provided by statute and (2) removing an obsolete statutory reference.

(1)  Definition of Digital Signature

GR 30(a) provides definitions, the first one of which is “digital signature,” which reads: “‘Digital signature’ is defined in RCW 19.34.020.” The related comment states, “The form of ‘digital signature’ that is acceptable is not limited to the procedure defined by chapter 19.34 RCW, but may include other equivalently reliable forms of authentication as adopted by local court rule or general order.” RCW 19.34.020 was repealed as of July 2019. On July 16, 2019, the Supreme Court issued General Order No.25700-B-596 providing that due to the repeal of RCW 19.34.020, as of July 28, 2019 the definition of “digital signature for GR 30 is as provided in RCW 9A.72.085.” Thus, it is necessary to address the definition of digital signature in GR 30(a)(1).

Rather than rely on a definition of digital signature that can be frequently modified through legislation, it would be a better practice to incorporate a definition of digital signature into the rule itself. The appropriate definition would seem to be the one that is referenced in the rule from the now-repealed RCW 19.34.020, which was then incorporated into the soon-to-be-repealed RCW 9A.72.085. Retention of the Comment that allows courts to provide their own “equivalently reliable forms of authentication” will allow continued flexibility for courts in this regard.

(2)  Outdated Statutory Reference

GR 30(d) references RCW 9A.72.085 in the context of the authentication of electronic documents. RCW 9A.72.085 is repealed as of July 1, 2021. GR 30(d)(3) provides an authentication process for electronic documents. It provides, in relevant part, “All electronic documents signed under penalty of perjury must conform to the oath language requirements set forth in RCW 9A.72.085 and GR 13.”

Because the concern of GR 30(d)(3) is specifically the oath language of RCW 9A.72.085, which is also found in GR 13, the simplest solution seems to be to remove the reference to RCW 9A.72.085 and only reference the oath language of GR 13 (as amended). This would prevent amendments having to be made in the future in response to other legislative changes and allows for judicial control over the procedure and language.

Relying on the oath language already found in GR 13 would also allow pattern forms to remain consistent, with no further amendments. The primary concern for pattern forms is that the statutory change failed to incorporate the use of “certify or declare” rather than just declare. Both terms are found in the forms and were added to address people’s concerns regarding swearing. See, e.g., State v. Killian, 2020 WL 365322, 2020 Wash. App. Lexis 153 (Wash. Ct. App. Jan. 22, 2020) (unpublished). By incorporating the proposed language it will obviate the need for several pattern form changes, thus avoiding expense and effort in that regard.

D.        Proposed Amendments:

[see below]

E.        Hearing: A hearing is not recommended due to the technical nature of the amendments.

F.         Expedited Consideration: Expedited consideration is requested to minimize confusion in the court and legal community.