WSR 17-08-057

RULES OF COURT

[March 29, 2017]

The Court of Appeals' Rules Committee, having recommended the suggested amendments to GR 35(e)—Official Certified Superior Court Transcripts, RAP 9.2(c)—Verbatim Report of Proceedings, RAP 9.5—Filing and Service of Report of Proceedings, RAP 10.2—Time for Filing Briefs, RAP 11.3—Date of Argument, RAP 15.2—Determination of Indigency and Rights of Indigent Party, RAP 15.4—Claim for Payment of Expense for Indigent Party, RAP 17.3—Content of Motion, RAP 17.7—Objection to Ruling—Review of Decision on Motion, RAP 18.13—Accelerated Review of Dispositions in Juvenile Offense Proceedings, RAP 18.13A—Accelerated Review of Juvenile Dependency Disposition Orders, Orders Terminating Parental Rights, and Dependency Guardianship Orders, RAP Form 12—Order of Indigency, RAP Form 15A—Notice of Filing Verbatim Report of Proceedings (RAP 9.5), and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than July 28, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 29th day of March, 2017.

 

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The Washington Court of Appeals Rules Committee proposes an amendment to GR 35(e) to address concerns expressed by court reporters about the last sentence of the declaration filed by court reporters with official transcripts (paragraph 5 of subsection (e).) Court reporters are concerned with the language of that paragraph because they believe that it could be argued that court reporters have a financial interest in the litigation because the reporters are paid for their services. The suggested change to the declaration clarifies that the reporter or authorized transcriptionist has no financial interest in the subject matter of the litigation.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) - (d) [No changes.]

(e) The certified court reporter or authorized transcriptionist shall attach to the official transcript filed with the court a certificate in substantially the following form:

"I certify (or declare) under penalty of perjury under the laws of the State of Washington that the following is true and correct:

1. That I am a certified court reporter (or authorized transcriptionist);

2. I received the electronic recording directly from the trial court conducting the hearing;

3. This transcript is a true and correct record of the proceedings to the best of my ability, including any changes made by the trial judge reviewing the transcript;

4. I am in no way related to or employed by any party in this matter, nor any counsel in the matter; and

5. I have no financial interest in the outcome or end result of the litigation.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The Washington Court of Appeals Rules Committee proposes two amendments to RAP 9.2.

(1) The suggested change to RAP 9.2(c) is a clarification of the term to be used for the additional designation of the record requested by a party under this subsection. No substantive change to the rule is intended.

(2) The suggested change to RAP 9.2 (f)(2)(B) increases from 200 pages to 250 pages the limit on the maximum number of pages that one volume of the verbatim report of proceedings may contain. Court reporters will be able to include a full day's proceedings in one volume if the page length is expanded to 250 pages. Having fewer volumes of the record is more convenient, particularly for persons reviewing an electronic version of the verbatim report of proceedings.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) – (b) [No changes.]

(c) Notice of Partial Report of Proceedings and Issues. If a party seeking review arranges for less than all of the verbatim report of proceedings, the party should include in the statement of arrangements a statement of the issues the party intends to present on review. Any other party who wishes to add to the verbatim report of proceedings should within 10 days after service of the statement of arrangements file and serve on all other parties and the court reporter or authorized transcriptionist a supplemental statement of arrangements which designates the designation of additional parts of the verbatim report of proceedings and file proof of service with the appellate court. If the party seeking review refuses to provide the additional parts of the verbatim report of proceedings, the party seeking the additional parts may provide them at the party's own expense or apply to the trial court for an order requiring the party seeking review to pay for the additional parts of the verbatim report of proceedings.

(d) - (e) [No changes.]

(1) Generally. The verbatim report of proceedings shall be on 8-1/2-by 11-inch paper. Margins shall be lined 1-3/8 inches from the left and 5/8 inches from the right side of each page. Indentations from the left lined margin should be: 1 space for "Q" and "A"; 5 spaces for the body of the testimony; 8 spaces for commencement of a paragraph; and 10 spaces for quoted authority. Typing should be double spaced except that comments by the reporter should be single spaced. The page should have 25 lines of type. Type must be pica type or its equivalent with no more than 10 characters an inch.

(A) Witnesses Designated/Examination. Indicate at the top or bottom of each page the name of the witness and whether the examination is on direct, cross, re-direct, re-cross, or rebuttal.

(B) Jury In/Out. Indicate when the jury is present, when the jury leaves, and when the jury returns.

(C) Bench/Side Bar Conferences. Designate whether a bench/side bar conference is on or off the record.

(D) Chamber Conferences. If the conference is recorded, note the presence or absence of persons participating in chamber conferences.

(E) Speaker/Event Identification. Identify speakers and events that occur throughout the proceedings in capital letters centered on the appropriate line. For example: recess/court reconvene; direct examination, cross examination, re-direct examination, re-cross examination, plaintiff rests; defendant's evidence: direct examination, cross examination, re-direct examination, re-cross examination, defense rests; instructions, conference, closing arguments: for plaintiff, for defense, and rebuttal.

(2) Volume and Pages.

(A) Pages in each volume of the verbatim report of proceedings shall be numbered consecutively and be arranged in chronologic order by date of hearing(s) requested in the statement of arrangements.

(B) Each volume of the verbatim report of proceedings shall include no more than 200 250 pages. The page numbers in the first volume should start with page 1 and continue to 200 250, as needed, regardless of how many hearing dates are included in the volume. In the second volume of the verbatim report of proceedings and subsequent volume page numbers should start with the next page number in sequence where the previous volume ended. The volumes shall be either bound or fastened securely.

(3) Copies. The verbatim report of proceedings should be legible, clean and reproducible.

Form 15, Statement of Arrangements; Title 6, Acceptance of Review.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The Washington Court of Appeals Rules Committee proposes an amendment to RAP 9.5(a) to correspond to current practice. The Court of Appeals no longer requires that the court reporter/transcriptionist file a Notice of Filing Verbatim Report with the Court. It is the responsibility of the reporter or transcriptionist to notify the parties directly that the report of proceedings has been filed.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) Generally. The party seeking review must file an agreed or narrative report of proceedings with the appellate court within 60 days after the statement of arrangements is filed. The court reporter or authorized transcriptionist preparing a verbatim report of proceedings must file it in the appellate court within 60 days after the statement of arrangements is filed and all named court reporters or authorized transcriptionists are served. The court reporter or authorized transcriptionist shall promptly notify serve notice of filing on all parties that the report of proceedings has been filed with the appellate court and shall provide a copy of the report of proceedings to the party who arranged for the transcript.

(1) A party filing a brief must promptly forward a copy of the verbatim report of proceedings with a copy of the brief to the party with the right to file the next brief. If more than one party has the right to file the next brief, the parties must cooperate in the use of the report of proceedings. The party who files the last brief should return the copy of the report of proceedings to the party who paid for it.

(2) A searchable PDF electronic copy of the verbatim report of proceedings shall be filed with the original verbatim report of proceedings, with a copy provided to the party who caused the verbatim report of proceedings to be filed. The report of proceedings may be electronically filed with the appellate court in accordance with the court's filing procedures.

(b) – (d) [No changes.]

Title 6, Acceptance of Review

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The Washington Court of Appeals Rules Committee proposes three  amendments to RAP 10.2.

(1) The first suggested change to RAP 10.2 (f)(2) revises how to count the date by which an amicus brief must be filed. At presenty, the time for filing of an amicus brief is measured from the due date of the last brief that respondent is permitted to file under the court rules. However, the due date for respondent's brief often changes during the course of the appeal. The suggested rule change designates the actual filing date of the respondent's brief as the date on which time starts to run for the filing of an amicus brief. The change will to make it easier for both the court and interested parties to determine when an amicus brief is due. 

(2) The suggested change to RAP 10.2 (f)(2) also shortens the time for filing an amicus brief from 45 days to 30 days, which will be sufficient in most cases, and will allow the case to proceed in an expeditious manner. If more time is needed, amicus curiae may request an extension of time.

(3) The suggested change to RAP 10.2(h) is a clarification. The suggested change clarifies that appellant's counsel is required to serve the appellant's brief on the appellant pursuant to this subsection; no substantive change to the rule is intended. Appellant's counsel is required to serve the appellant's brief on the appellant under this subsection. No substantive change is intended.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) – (e) [No changes.]

(f) Brief of Amicus Curiae. Unless the court sets a different date, or allows a later date upon a showing of particular justification, a brief of amicus curiae should be filed as follows.

(1) Supreme Court. A brief of amicus curiae should be received by the court and counsel of record for the parties and any other amicus curiae not later than 45 days before oral argument or consideration of the merits.

(2) Court of Appeals. A brief of amicus curiae should be received by the court and counsel of record for the parties and any other amicus curiae not later than 45 30 days after the due date for filing of the last brief of respondent permitted under rule 10.2(b) or 10.2(c).

(g) [No changes.]

(h) Service of Briefs. At the time a party files a brief, the party should serve one copy on every other party and on any amicus curiae, and file proof of service with the appellate court. In a criminal case in which the defendant is the appellant, appellant's counsel shall should serve the appellant's brief on appellant and file proof of service with the appellate court. Service and proof of service should be made in accordance with rules 18.5 and 18.6.

(i) [No changes.]

Rule 18.6, Computation of Time, (c) Filing by mail.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Washington Court of Appeals Rules Committee.

(C) Purpose: The suggested change requires a party to file a motion requesting a change in the date set for oral argument within 10 days, instead of 15 days. This will allow the court to make calendar changes more quickly, resulting in more efficient use of court resources. It is likely that counsel already check their calendars immediately to determine if they have a conflict with the date set by the court; the suggested change only requires that they notify the court more promptly when there is such a conflict.

(D) Hearing: None recommended.

(D) Expedited Consideration: Expedited consideration is not requested.

(a) Notice. [No changes.]

(b) Rescheduling. A request to reschedule oral argument must be made by motion filed within 15 10 days of receipt of the letter setting the date for oral argument, except upon a showing of good cause.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Washington Court of Appeals Rules Committee.

(C) Purpose: The suggested amendments to RAP 15.2(h) permit a party to object to an indigency decision of the trial court by motion in the appellate court. The issue does not come up often, but when it does it can be problematic from a procedural standpoint. Either the appellate court must assign a new case number to the matter and go through a discretionary review process before the appeal goes forward, or else the court ends up with a motion for discretionary review within an appeal. Both options are awkward and inefficient.

Several other rules of appellate procedure, such as RAP 8.1(h) (supersedeas), and RAP 8.2(b) (release or stay of execution of sentence), provide that a party may object to these decisions by motion in the appellate court. The suggested changes to RAP 15.2(h) allow that same procedure to be used for review of decisions of the trial court on indigency.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) - (g) [No changes.]

(h) Review of Order or Finding of Indigency. A party in a case of a type listed in section (b)(1) of this rule may seek review of an order of indigency or an order denying an order of indigency entered by a trial court. A party may also seek review of written findings under section (c)(1) of this rule that the party is not indigent. Review must be sought by a motion for discretionary review. A party may object to an indigency decision of the trial court by motion in the appellate court.

(i) [No changes.]

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Washington Court of Appeals Rules Committee.

(C) Purpose: The suggested amendments to RAP 15.4(d) add "authorized transcriptionists" to a subsection concerning invoices for transcripts. The suggested changes are a "clean-up" to make that subsection consistent with other changes adopted by the Supreme Court in 2015 concerning authorized transcriptionists, e.g. GR 35.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) – (c). [No changes.]

(1) An invoice submitted by the court reporter or authorized transcriptionist should be titled "Invoice of Court Reporter or Typist Authorized Transcriptionist—Indigent Case." The invoice must state the number of pages transcribed and the billing rate per page. The billing rate must be at the rate per page or line page equivalent set by the Supreme Court for the original and one copy of that portion of the report of proceedings ordered by the superior court. Additional copies which have been authorized and ordered from the reporter or authorized transcriptionist must be charged for as though reproduced by the most economical method available to the reporter or authorized transcriptionist.

(e) Invoice of Superior Court Clerk. [No changes.]

A. Name of Proponent: Washington Court of Appeals Rules Committee.

B. Spokesperson: Honorable Kevin M. Korsmo, Chair, Washington Court of Appeals Rules Committee.

C. Purpose: The suggested change requires that parties include a table of contents in the appendix to a motion for discretionary review filed pursuant to Title 17 and that the appendix pages be consecutively numbered.

In 2014, the Supreme Court amended RAP 6.2(c), which applies to motions for discretionary review filed pursuant to Title 6, to require that appendices include a table of contents and consecutively-numbered pages. This requirement has been very helpful when reviewing those motions. It would be equally helpful to the appellate courts if the appendices to motions filed pursuant to RAP 17.3 also included a table of contents and consecutively-numbered pages.

D. Hearing: None recommended.

E. Expedited Consideration: Expedited consideration is not requested.

(a) [No changes.]

(b) Motion for Discretionary Review. A motion for discretionary review should contain under appropriate headings and in the order here indicated:

(1) Cover. A title page, which is the cover.

(2) Identity of Petitioner. A statement of the name and designation of the person filing the motion.

(3) Decision Below. A statement of the decision which petitioner wants reviewed, the court entering or filing the decision, the date entered or filed, and the date and a description of any order granting or denying motions made after the decision.

(4) Issues Presented for Review. A concise statement of the issues presented for review.

(5) Statement of the Case. A statement of the facts and procedure below relevant to the issues presented for review, with appropriate reference to the record.

(6) Argument. A direct and concise statement of the reasons why review should be granted, with supporting argument.

(7) Conclusion. A short conclusion stating the precise relief sought.

(8) Appendix. An appendix containing a copy of the decision which the party wants reviewed, a copy of any order granting or denying motions made with respect to that decision, and a copy of parts of the record relevant to the motion. In addition, the appendix may include copies of statutes and constitutional provisions relevant to the issues presented for review, and other material which would assist the court in determining whether the motion should be granted. The appendix should include a table of contents and the pages should be consecutively numbered.

(c) [No changes.]

References

Form 3, Motion for Discretionary Review; Form 4, Statement of Grounds for Direct Review; Form 18, Motion; Form 20, Motion To Modify Ruling; Rule 6.2, Discretionary Review; Rule 12.4, Motion for Reconsideration of Decision Terminating Review.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Washington Court of Appeals Rules Committee.

Purpose: At present, the procedure used by the parties for a motion to modify a commissioner's ruling terminating review of a motion for accelerated review in a juvenile case is the general motion procedure in RAP 17.7. The suggested amendments to RAP 17.7, 18.13(c), and 18.13A(d) create a new procedure for these motions in juvenile cases, with a shortened time frame, which is consistent with the expedited review process in RAP 18.13 (Accelerated Review of Dispositions in Juvenile Offense Proceedings) and 18.13A (Accelerated Review of Juvenile Dependency Disposition Orders, Orders Terminating Parental Rights, and Dependency Guardianship Orders.)

The suggested changes to RAP 17.7 states that the procedure for a motion to modify a Court of Appeals commissioner's ruling terminating review of a motion for accelerated review filed pursuant to RAP 18.13 or RAP 18.13A is governed by the provisions of those rules.

The suggested changes to RAP 18.13 provide that the motion filed pursuant to that rule to modify a Court of Appeals commissioner's ruling terminating review of a motion for accelerated review must be served and filed within 15 days after the commissioner's ruling is filed. An answer to the motion must be filed within 15 days after the motion is filed. No reply should be filed unless requested by the Court.

The suggested changes to RAP 18.13A add a subsection on the procedure for motions to the rule identical to the subsection in RAP 18.13, including the suggested accelerated motion procedure for motions to modify a Court of Appeals commissioner's ruling terminating review of a motion for accelerated review.

(C) Hearing: None recommended.

(D) Expedited Consideration: Expedited consideration is not requested.

RULE 17.7 OBJECTION TO RULING—REVIEW OF DECISION ON MOTION

(a) Motion to modify. An aggrieved person may object to a ruling of a commissioner or clerk, including transfer of the case to the Court of Appeals under rule 17.2(c), only by a motion to modify the ruling directed to the judges of the court served by the commissioner or clerk. Except as set forth in subsection (b), Tthe motion to modify the ruling must be served on all persons entitled to notice of the original motion and filed in the appellate court not later than 30 days after the ruling is filed. A motion to the Justices in the Supreme Court will be decided by a panel of five Justices unless the court directs a hearing by the court en banc.

Form 20, Motion To Modify Ruling.

(a) – (b) Generally. [No changes.]

(1) Unless otherwise specified in this rule, the motion procedure, including a party's response, is governed by rule Title 17.

(d) Accelerated review of other issues. [No changes.]

(e) Supreme Court review. [No changes.]

(f) Schedule. [No changes.]

(a) – (i) [No changes.]

(1) Unless otherwise specified in this rule, the motion procedure, including a party's response, is governed by Title 17.

(2) A motion to modify a Court of Appeals commissioner's ruling terminating review of a motion for accelerated review filed pursuant to RAP 18.13 must be served on all persons entitled to notice of the original motion and filed in the appellate court not later than 15 days after the commissioner's ruling is filed in the Court of Appeals. An answer to the motion to modify should be filed not later than 15 days after the motion to modify is filed. A party should not file a reply to an answer unless requested by the appellate court.

(k) Supreme Court Review. [No changes.]

(l) Termination Appeals – Notice of Intent to Deliver Consent to Adoption. When an order terminating parental rights is under review, the department of social and health services or supervising agency having the right to consent to an adoption should serve a written notice of its intent to deliver consent to adoption. The notice of intent should specify the intended delivery date, and should be served on all parties to the appeal and on anyone appointed to represent the interests of the child, no fewer than 30 days before the intended delivery date. A copy of the notice of intent and a proof of service should be filed in the appellate court. After service of the notice of intent, any party may move the court in which the appeal is pending to stay the order terminating parental rights, but only to the extent it authorized consent to adoption. The department or supervising agency should not deliver its consent to adoption if any party seeks a stay before the intended delivery date, pending a ruling on the motion to stay. The appellate court will hear the motion to stay on an expedited basis. Any stay of enforcement shall terminate upon issuance of the mandate as provided in Rule 12.5, unless otherwise directed by the appellate court.

See Form 15D.

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The suggested changes clarify the form used by the superior courts for orders of indigency for appellate review. The changes are also intended to reduce the frequency of the superior court's need to amend the order of indigency by deleting the requirement that the order state with specificity which parts of the verbatim report of proceedings and clerk's papers are necessary for review.  Instead, the order states that the indigent party is entitled to copies of the verbatim report of proceedings and the clerk's papers that are "reasonably necessary for review."

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(Rule 15.2)

[Set forth finding of indigency and state that applicable law grants review wholly or partially at public expense. For example: "The court finds that the defendant lacks sufficient funds to prosecute an appeal and applicable law grants defendant a right to review at public expense to the extent defined in this order."] The court orders as follows:

1. The filing fee is waived.

2. [Name of indigent] is entitled to counsel for review wholly at public expense. When review is discretionary, counsel will be provided and the expenses detailed below will be paid if review is accepted or as applicable law permits.

3. The appellate court shall appoint counsel for review pursuant to RAP 15.2 [If applicable: "Trial counsel must assist appointed counsel for review in preparing the record."]

4. [Name of indigent] is entitled to the following at public expense:

(a) Those portions of tThe verbatim report of proceedings reasonably necessary for review. as follows: [Designate parts of report.]

(b) A copy of the following clerk's papers reasonably necessary for review.:

(c) Preparation of original documents to be reproduced by the clerk as provided in rule

(A) Name of Proponent: Washington Court of Appeals Rules Committee.

(B) Spokesperson: Honorable Kevin M. Korsmo, Chair, Court of Appeals Rules Committee.

(C) Purpose: The suggested changes revise the notice filed by the court reporter or transcriber with a transcript. Consistent with current technology, the changes specify that (1) a computer-generated transcript must be filed in PDF format, (2) may be saved and filed on a flash drive, and (3) can no longer be saved and filed on an ASCII diskette.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

I, (name), court reporter/transcriber, filed the verbatim report of proceedings on , 20 , for the following dates and provided a copy to the party who arranged for transcription:

_____ 

_____ 

_____ 

_____________________________

The transcript (check one): ___ was computer-generated ___ was not computer-generated.

If it was computer-generated, I filed a copy of the ASCII diskette or transcript in PDF format on compact disk or flash drive on the same date as the transcript was filed and provided a copy to the party who arranged for transcription

I certify that on the _____ day of _______________, 20 ___, I caused a true and correct copy of this Notice to be served on the following in the manner indicated below:

By: ______________________________

[December 24, 2002; amended effective September 1, 2010]