GR 9 COVER SHEET

Proposal to Repeal Criminal Rules for Courts of Limited Jurisdiction (CrRLJ) 2.1(c)

A.        Name of Proponent: Submitted by the Washington Association of Prosecuting Attorneys

B.        Spokesperson: Pam Loginsky, Staff Attorney

C.        Purpose:

The purpose of this amendment is to repeal the facially unconstitutional portion of CrRLJ 2.1 that authorizes judges to file criminal charges at the request of a citizen.

Two justices of the Washington Supreme Court issued a concurring opinion on August 26, 2021, in Stout v. Felix, 198 Wn.2d 180, 493 P3d 1170 (2021), in which they concluded that:

It is long past time for the wasteful pretense of citizen complaints to end. I would affirm the district court’s order of dismissal on the alternative basis that this and every citizen complaint case must be summarily dismissed with prejudice because CrRLJ 2.1(c) is unconstitutional on its face. I therefore respectfully concur only in the result.

198 Wn.2d at 207-08 (Justice Yu, concurring).

A Lewis County Superior Court Judge ruled that CrRLJ 2.1(c) unconstitutionally violates the separation of powers doctrine and interferes with the prosecuting attorney’s core function of determining whether charges should be filed. See In re Petition of Ware, 5 Wn. App. 2d 658, 670, 420 P.3d 1083 (2018).

The judges who must apply the citizen complaint rule agree that it “violates the separation of powers doctrine, requiring a judge to serve as both prosecutor and judicial officer.” Letter from Judge David A. Steiner, President, Dist. & Mun. Court Judges’ Ass’n, to Justice Charles W. Johnson, Chair, Supreme Court Rules Comm. (Apr. 16, 2015), https://www.courts.wa.gov/court_Rules/proposed/2014Nov/CrRLJ2.1/Judge%20David% 20A.%20Steiner.pdf. See also 4B ELIZABETH TURNER, WASHINGTON PRACTICE: RULES PRACTICE at 529-30 (8th ed. 2020) (discussing DCMJA’s 1996 request that CrRLJ 2.1(c) be repealed).

The Washington State Bar Association acknowledges that CrRLJ 2.1(c) violates the Washington constitution. See GR 9 Cover Sheet Submitted by the Board of Governors of the Washington State Bar Association (2014), https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplayArchive&ruleId=388.

The facially unconstitutional rule has turned courts into

·         forums for political theater, see, e.g., Ferry County District Court, No. 19-17CV (seeking permission to file citizen complaint against Attorney General based on activity related to state initiative); Yakima County District Court, No. CITIZEN01 (same); Lower Kittitas County District Court, Nos. CITIZEN01 CZS through CITIZEN 22 CZS (22 of the same); Stevens County District Court, Nos. 20190002 through 20190045, 20190047 through 20190063 (61 of the same); Joseph O’Sullivan, Discontent over Washington gun laws leads group to talk of  “citizen's arrest” of Bob Ferguson, Seattle Times, Oct. 20, 2019, https://www.seattletimes.com/seattle-news/politics/discontent-over-washington-gun-laws-leads-group-to-talk-of-citizens-arrest-of-bob-ferguson/ (last accessed Nov. 19, 2021);

·         a means to harass, intimidate, and retaliate against victims of crimes and government servants, see, e.g., Stout, 198 Wn.2d 180 (seeking permission to charge a state employee of the Department of Children, Youth, and Families with a crime based upon her performance of her official duties); State v. A.W., 181 Wn. App. 400, 326 P.3d 737 (2014) (defendant charged with raping child sought to have child charged with the offense of false reporting); 4B ELIZABETH A. TURNER, WASHINGTON PRACTICE: RULES PRACTICE at 529-530 (8th ed. 2020) (describing the motives underlying many applications for citizen complaints and the costs incurred by the targets); Kitsap County District Court, No. Y14-04890 (seeking permission to file citizen complaint against Court of Appeals clerk based on refusal to file improper brief).

Hearing:          None needed.

Expedited Consideration:       Not requested.