WSR 17-23-068

RULES OF COURT

[November 8, 2017]

The Washington Defender Association, having recommended the suggested amendment to RALJ 9.3—Costs, and the Court having considered the amendment and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendment as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2018.

(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 April 30, 2018. 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 8th day of November, 2017.

 

(A) Name of Proponent: Washington Defender Association

(B) Spokesperson: Magda Baker, Misdemeanor Resource Attorney, Washington Defender Association

(C) Purpose: The Washington Defender Association suggests changes to RALJ 9.3 that would require a superior court judge who decides a criminal RALJ appeal to consider the defendant's current or likely future ability to pay before imposing costs of appeal. The proposed language is similar to language the Washington Supreme Court added to RAP 14.2 effective January 31, 2017, and would give indigent people convicted of misdemeanors the same ability to appeal their convictions without having to weigh financial considerations that people convicted of felonies currently have. It would also increase uniformity between the RALJs and the RAPs. 

The Washington Supreme Court has recognized problems with legal financial obligations (LFOs) when courts impose them on indigent people. These problems include increased difficulty becoming a productive member of society after a conviction, questionable recoupment of money by the government, and unequal administration of LFOs. See State v. Blazina, 182 Wn.2d 827, 836-37 (2015). These obstacles apply to misdemeanors as well as felonies. Changing RALJ 9.3 to more closely mirror RAP 14.2 would decrease the LFOs courts must impose on indigent misdemeanants. 

(D) Hearing: None recommended.

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

(1) Civil Appeals. The party that substantially prevails on a civil appeal shall be awarded costs on appeal. Costs will be imposed against a party whose appeal is involuntarily dismissed. Costs will be awarded in a case dismissed by reason of a voluntary withdrawal of an appeal only if the superior court so directs at the time the order is entered permitting the voluntary withdrawal of the appeal.

(2) Criminal Appeals. The party that substantially prevails on a criminal appeal shall be awarded costs on appeal unless the superior court judge determines the criminal defendant does not have the current or likely future ability to pay such costs. Costs will be imposed against a party whose appeal is involuntarily dismissed unless that party is a criminal defendant and the superior court judge determines the criminal defendant does not have the current or likely future ability to pay such costs. When the trial court has entered an order that a criminal defendant is indigent for purposes of appeal, that finding of indigency remains in effect unless the superior court judge determines by a preponderance of the evidence that the criminal defendant's financial circumstances have significantly improved since the last determination of indigency. The superior court judge may consider any evidence offered to determine the individual's current or future ability to pay. Costs will be awarded in a case dismissed by reason of a voluntary withdrawal of an appeal only if the superior court so directs at the time the order is entered permitting the voluntary withdrawal of the appeal.

(b) – (f) [No changes.]

(g) Reasonable Attorney Fees. A request for reasonable attorney fees should not be made in the cost bill. The request should be made as provided in rule 11.2. In a criminal case attorney fees are subject to rule 9.3 (a)(2).