Title 16 - Special Proceedings in the Supreme Court and Court of Appeals
RAP 16.1: PROCEEDINGS TO WHICH TITLE APPEARS
(a) Generally. The rules in this title establish the procedure for original actions in the Supreme Court and in the Court of Appeals, and the procedure for determining questions of law certified by a federal court.
(b) Original Actions in Supreme Court Against State Officers. Rule 16.2 defines the procedure for petitions against state officers for writs of mandamus, prohibition, quo warranto, and similar writs, but only when the proceeding is started for the first time in the Supreme Court.
(c) Original Actions in the Appellate Court--Personal Restraint Petition. Rules 16.3 through 16.15 define the procedure for a personal restraint petition, but only when the proceeding is started for the first time in the appellate court.
(d) Questions Certified by Federal Court. Rule 16.16 defines the procedure for determining questions of law certified by a federal court.
(e) Review of Decision of the Court of Appeals. Except as provided in rule 16.14, a Court of Appeals decision in a special proceeding is subject to review by the Supreme Court only by discretionary review as provided in Title 13.
(f) Removal of Public Officer. Proceedings to remove a public officer are governed by statute and not these rules.
(g) Review of Sentence. Rule 16.18 defines the procedure for reviewing a sentence committing an offender to the Department of Corrections, when an error of law is asserted by the Department.
(h) Capital Cases. Rules 16.19 through 16.27 define the procedure for appeals and original actions in which the death penalty has been decreed.
RAP 16.2: ORIGINAL ACTION AGAINST STATE OFFICER
(a) Generally. The Supreme Court and the superior court have concurrent original jurisdiction of a petition against a state officer in the nature of quo warranto, prohibition, or mandamus. This rule applies only to an action originating in the Supreme Court.
(b) Initiating Proceeding. The proceeding is initiated by filing the petition in the Supreme Court and filing proof of service of the petition on the proper parties. Service of the petition must be made as provided in the Superior Court Civil Rules and statutes for service of a summons in a superior court action. The clerk of the Supreme Court will note the petition for hearing and provide notice to the parties.
(c) Motion Procedure Governs. The petition is treated by the Supreme Court as a motion to a commissioner or clerk. Title 17 relating to motions governs the response to the petition, oral argument, decisions by ruling, and the means of objecting to the ruling of the commissioner or clerk.
(d) Decisions Made by Commissioner or Clerk. A commissioner or clerk will, at the hearing, determine if the petition should be decided by the Supreme Court, transferred, or dismissed. If the commissioner or clerk decides that the petition should be transferred, the petition will be transferred to a superior court for determination on the merits. If the petition is not transferred or dismissed, the commissioner or clerk will refer questions of fact to a master or to the superior court unless an agreed and adequate written statement of facts is approved by the parties prior to or at the hearing. The commissioner or clerk will also determine the timing of all remaining steps in the proceeding, including time for filing briefs on the merits.
(e) Procedure if Petition Is Not Transferred. The procedure if the petition is not transferred is the same as the procedure in the Supreme Court after acceptance of review of a trial court decision, except as otherwise directed by a ruling of the commissioner or clerk as provided in section (d).
(f) Statutory Time Limits Govern. If a statute provides a time within which a petition against a state officer in the nature of quo warranto, prohibition, or mandamus must be filed, the petition must be filed in the Supreme Court within the time period established by the statute.
(g) Costs. Costs are determined and awarded as provided in Title 14. The appellate court will award costs by supplemental judgment and will, on motion, transmit the judgment to the clerk of the superior court in the county selected by the party who is awarded costs. The supplemental judgment to the superior court shall be filed as a judgment in that court without payment of a filing fee.
[Originally effective July 1, 1976; amended effective September 1, 1985; September 1, 2014.]
References
Form 16, Petition Against State Officer; Const. art. 4, section 4; CR 4, Process, (d) Service; RCW 4.28, Commencement of Actions; RCW 7.16, Certiorari, Mandamus and Prohibition; RCW 7.56, Quo Warranto.
RAP 16.3: PERSONAL RESTRAINT PETITION--GENERALLY
(a) Procedure for Relief from Restraint. Rules 16.3 through 16.15 and rules 16.24 through 16.27 establish a single procedure for proceedings in the appellate court to obtain relief from restraint.
(b) Former Procedure Superseded. The procedure established by rules 16.3 through 16.15 and rules 16.24 through 16.27 for a personal restraint petition supersedes the appellate procedure formerly available for a petition for writ of habeas corpus and for an application for post-conviction relief, unless one of these rules specifically indicates to the contrary. These rules do not supersede and do not apply to habeas corpus proceedings initiated in the superior court.
(c) Jurisdiction. The Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint petition proceedings in which the death penalty has not been decreed. The Supreme Court will ordinarily exercise its jurisdiction by transferring the petition to the Court of Appeals. The Supreme Court has exclusive original jurisdiction in personal restraint proceedings in which the petitioner is under a sentence of death.
[Originally effective July 1, 1976; amended effective December 30, 1997; September 1, 2014.]
References
RCW 7.36, Habeas Corpus.
RAP 16.4: PERSONAL RESTRAINT PETITION-GROUNDS FOR REMEDY
(a) Generally. Except as restricted by section (d), the appellate court will grant appropriate relief to a petitioner if the petitioner is under a "restraint" as defined in section (b) and the petitioners restraint is unlawful for one or more of the reasons defined in section (c).
(b) Restraint. A petitioner is under a "restraint" if the petitioner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.
(c) Unlawful Nature of Restraint. The restraint must be unlawful for one or more of the following reasons:
(1) The decision in a civil or criminal proceeding was entered without jurisdiction over the person of the petitioner or the subject matter; or
(2) The conviction was obtained or the sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or
(3) Material facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government; or
(4) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government, and sufficient reasons exist to require retroactive application of the changed legal standard; or
(5) Other grounds exist for a collateral attack upon a judgment in a criminal proceeding or civil proceeding instituted by the state or local government; or
(6) The conditions or manner of the restraint of petitioner are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or
(7) Other grounds exist to challenge the legality of the restraint of petitioner.
(d) Restrictions. The appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances and if such relief may be granted under RCW 10.73.090, or .100. No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.
[Originally effective July 1, 1976; amended effective July 2, 1976; September 1, 1991; September 1, 2014.]
References
RCW 7.36, Habeas Corpus.
RAP 16.5: PERSONAL RESTRAINT PETITION-WHERE TO SEEK RELIEF
(a) Court of Appeals. A personal restraint petition should be filed in the Court of Appeals, unless the petition is subject to subsection (b).
(b) Supreme Court. A personal restraint petition filed by a person under sentence of death shall be filed in the Supreme Court. See RAP 16.3(c).
(c) A personal restraint petition may be transferred by the court in which it is filed. The transfer of a personal restraint petition between the Supreme Court and the Court of Appeals shall not be subject to a motion to reconsider or, if the transfer is ordered by the clerk of the court, a motion to modify.
(d) If a petition filed in the Supreme Court is not transferred to the Court of Appeals, or has been transferred from the Court of Appeals to the Supreme Court, the determinations ordinarily made by the "Chief Judge" under rules 16.11 and 16.13 may be made by a commissioner.
[Originally effective July 1, 1976; amended effective April 16, 2002; September 1, 2014.]
References RCW 7.36, Habeas Corpus.
RAP 16.6: PERSONAL RESTRAINT PETITION--PARTIES
(a) Parties. If petitioner is under a restraint imposed by the state or local government, the petition should be captioned only with the name of the petitioner. If petitioner is not under a restraint imposed by the state or local government, the petition should be captioned with the name of the petitioner and the name of the person or agency restraining petitioners liberty, as respondent. The petition may be brought by the person who is under a restraint or in the persons name by that persons guardian, conservator, parent, or attorney.
(b) Respondent--Restraint by Government. If petitioner is under a restraint imposed by the state or local government, the officer or agency responsible for the proceeding against petitioner at the time petitioner claims the proceeding was defective or improper shall respond to the petition. If there are two or more proper respondents, each shall serve and file a separate response unless they agree to joint representation and notify the appellate court and the petitioner of that agreement.
(c) Change of Respondent. If the petitioner is under a restraint imposed by the state or local government, the appellate court may on its own initiative or on motion substitute the proper respondent, and the clerk of the court will notify substituted respondent.
RAP 16.7: PERSONAL RESTRAINT PETITION--FORM OF PETITION
(a) Generally. Under the titles indicated, the petition should set forth:
(1) Status of Petitioner. The restraint on petitioner; the place where petitioner is held in custody, if confined; the judgment, sentence, or other order or authority upon which petitioners restraint is based, identified by date of entry, court, and cause number; any appeals taken from that judgment, sentence or order; and a statement of each other petition or collateral attack as that term is defined in RCW 10.73.090, whether filed in federal court or state court, filed with regard to the same allegedly unlawful restraint, identified by the date filed, the court, the disposition made by the court, and the date of disposition.
(2) Grounds for Relief. A statement of (i) the facts upon which the claim of unlawful restraint of petitioner is based and the evidence available to support the factual allegations, and (ii) why the petitioners restraint is unlawful for one or more of the reasons specified in rule 16.4(c). Legal argument and authorities may be included in the petition, or submitted in a separate brief as provided in rule 16.10(a).
(3) Citations to Court Documents. If some of the evidence supporting the factual allegations is contained in the files of a trial or appellate court, the petition should identify the documents needed for review and the case numbers under which they can be found. The appellate court may order that any court documents identified for review be transferred or transmitted to the court.
(4) Statement of Finances. If petitioner is unable to pay the filing fee or fees of counsel, a request should be included for waiver of the filing fee and for the appointment of counsel at public expense. The request should be supported by a statement of petitioner's total assets and liabilities.
(5) Request for Relief. The relief petitioner wants.
(6) Oath. The petition must be signed by the petitioner or his attorney and verified under penalty of perjury. The verification may be in the following form:
I declare under penalty of perjury under the laws of the State of Washington that I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true.
or
I declare under penalty of perjury under the laws of the State of Washington that I am the attorney for the petitioner, that I have read the petition, know its contents, and I believe the petition is true.
[Signature]
_________________________ Signed this _________ [date] at ____________________________ [place].
If a petition is filed that is not verified, the appellate court will return the petition for verification.
(7) Verification. In all cases where the restraint is the result of a criminal proceeding and the petition is prepared by the petitioner's attorney, the petitioner must file with the court no later than 30 days after the petition was received by the court a document that substantially complies with the following form:
I declare that I have received a copy of the petition prepared by my attorney and that I consent to the petition being filed on my behalf.
Dated this _______________ [date] _________
____________________________________________
[Signature]
If the petitioner has been declared incompetent, the verification may be filed by the guardian ad litem. If a petition has been filed to determine competency, the verification procedure shall be tolled until competency is determined.
- (b) Standard Form. The clerk of the appellate court will make the standard form of petition available to persons who are confined in state institutions and to others who may request the form.
- (c) Length of Petition. The petition should not exceed 50 pages.
[Originally effective July 1, 1976; amended effective December 30, 1997; September 1, 2006; September 1, 2010; September 1, 2014.]
References
Form 17, Personal Restraint Petition.
RAP 16.8: PERSONAL RESTRAINT PETITION - FILING AND SERVICE
(a) Filing Fee. A personal restraint petition will be filed by the clerk of the appellate court only if the statutory filing fee is paid, unless the appellate court determines that the petitioner is indigent. The statute governing payment of a fee for filing a petition for writ of habeas corpus is controlling.
(b) Filing in Court of Appeals. A personal restraint petition filed in the Court of Appeals must be filed in the division that includes the superior court entering the decision on the basis of which petitioner is held in custody or, if petitioner is not being held in custody on the basis of a decision, in the division in which the petitioner is located.
(c) Deficient Petitions. If the clerk of the appellate court determines that a petition submitted does not conform with this rule or with rule 16.7(a)(1), (3), (4), (5), (6), or (7), the petition should be filed and the clerk will direct the petitioner to correct the deficiency within 60 days.
(d) Service of Petition. If petitioner's restraint is imposed by the state or local government, the clerk of the appellate court will reproduce a copy of the petition and serve the petition on the officer or agency under a duty to respond to the petition. If petitioner's restraint is imposed by a person or agency other than the state or local government, the petitioner must prepare and serve a copy of the petition on the proper respondent.
(e) Amendment of Petition. The appellate court may allow a petition to be amended. All amendments raising new grounds are subject to the time limitation provided in RCW 10.73.090 and 10.73.100.
[Originally effective July 1, 1976; amended effective September 1, 2014.]
References
RCW 2.32.070, Fees-Supreme Court clerk, clerks of Court of Appeals.
RAP 16.8.1: PERSONAL RESTRAINT PETITION-PRELIMINARY PREVIEW BY COURT
(a) Preliminary Review. Upon receipt of the petition, the appellate court will conduct a preliminary review.
(b) Dismissal Without Response. The appellate court will dismiss the petition without requesting a response if it is clearly frivolous or clearly barred by RCW 10.73.090 or RAP 16.4(d).
(c) Remand to Superior Court. If the petition was originally filed as a habeas corpus petition or a motion under CrR 7.8, and the superior court clearly erred in transferring the matter to the Court of Appeals, the Court of Appeals will remand the matter to the superior court. If a case is remanded pursuant to this subsection, no filing fee will be required in the Court of Appeals.
(d) Request for Response. If the appellate court does not dismiss or remand the petition, the court will request that a response be filed.
[Adopted effective September 1, 2014.]
RAP 16.9: PERSONAL RESTRAINT PETITION -- RESPONSE TO PETITION
(a) Generally. The respondent must serve and file any response within 60 days after the court requests that a response be filed, unless the time is extended by the commissioner or clerk for good cause shown. The response must answer the allegations in the petition. The response must state the authority for the restraint of petitioner by respondent and, if the authority is in writing, include a conformed copy of the writing. If an allegation in the petition can be answered by reference to a record of another proceeding, the response should so indicate and include a copy of those parts of the record that are relevant. Respondent should also identify in the response all material disputed questions of fact.
(b) Requirement to Admit or Deny. After the time for filing a response has passed, the appellate court may direct the respondent to admit or deny specific allegations.
[Originally effective July 1, 1976; amended effective September 1, 1998; April 16, 2002; September 1, 2006; September 1, 2014.]
RAP 16.10: PERSONAL RESTRAINT PETITION--BRIEFS
(a) Briefs Allowed. The following briefs may be, but need not be, filed:
(1) Petitioner's Opening Brief. Petitioners opening brief, which should be filed with the petition.
(2) Petitioner's Reply Brief. Petitioners reply brief, which should be filed within 30 days after the answering brief is served on petitioner.
(b) Brief Required. Respondent must file an answering brief within the time the response must be filed.
(c) Briefs at Request of Appellate Court. The appellate court may call for additional briefs at any stage of the consideration of the petition.
(d) Content and Style of Briefs. The content and style of briefs is governed by rules 10.3 and 10.4.
(e) Reproduction and Service of Briefs. Briefs must be filed with the clerk of the appellate court. Briefs will be reproduced and served by the clerk.
RAP 16.11: PERSONAL RESTRAINT PETITION-CONSIDERATION OF PETITION
(a) Generally. The Chief Judge will consider the petition promptly after the time has expired to file petitioners reply brief. The Chief Judge determines at the initial consideration if the petition will be retained by the appellate court for determination on the merits or transferred to a superior court for determination on the merits or for a reference hearing. For the purpose of rules in this Title 16, "Chief Judge" includes "Acting Chief Judge."
(b) Determination by Appellate Court. The Chief Judge determines at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition. If, after consideration of the response and any reply, the Chief Judge determines that the issues presented are frivolous, the Chief Judge will dismiss the petition. If the petition is not frivolous and can be determined solely on the record, the Chief Judge will refer the petition to a panel of judges for determination on the merits. If the petition cannot be determined solely on the record, the Chief Judge will transfer the petition to a superior court for a determination on the merits or for a reference hearing. The Chief Judge may enter other orders necessary to obtain a prompt determination of the petition on the merits.
(c) Oral Argument. Decisions of the Chief Judge will be made without oral argument. If a petition is to be decided on the merits by a panel of judges, the appellate court clerk will set the petition for consideration by the panel of judges, with or without oral argument. If oral argument is directed, the clerk will notify the parties of the date set for oral argument.
[Originally effective July 1, 1976; amended effective January 1, 1977; September 1, 1998; September 1, 2014.]
RAP 16.12: PERSONAL RESTRAINT PETITION--SUPERIOR COURT HEARING
If the appellate court transfers the petition to a superior court, the transfer will be to the superior court for the county in which the decision was made resulting in the restraint of petitioner or, if petitioner is not being restrained on the basis of a decision, in the superior court in the county in which petitioner is located. If the respondent is represented by the Attorney General, the prosecuting attorney, or a municipal attorney, respondent must take steps to obtain a prompt evidentiary hearing and must serve notice of the date set for hearing on all other parties. The parties, on motion, will be granted reasonable pretrial discovery. Each party has the right to subpoena witnesses. The hearing shall be held before a judge who was not involved in the challenged proceeding. The petitioner has the right to be present at the hearing, the right to cross-examine adverse witnesses, and the right to counsel to the extent authorized by statute. The Rules of Evidence apply at the hearing. Upon the conclusion of the hearing, if the case has been transferred for a reference hearing, the superior court shall enter findings of fact and have the findings and all appellate court files forwarded to the appellate court. Upon the conclusion of the hearing if the case has been transferred for a determination on the merits, the superior court shall enter findings of fact and conclusions of law and an order deciding the petition.
[Adopted effective July 1, 1976; amended effective January 1, 1977; September 1, 2014.]
RAP 16.13: PERSONAL RESTRAINT PETITION-PROCEDURE AFTER REFERENCE HEARING
After a reference hearing and the findings of fact and appellate court files have been returned to the appellate court, the Chief Judge will dismiss the petition if the issues presented are frivolous. If the petition is not frivolous, the Chief Judge will refer the petition to a panel of judges for determination on the merits. The appellate court may, on motion of a party, order the preparation of and transmittal to the appellate court of a part or all of the record of the reference proceeding. The appellate court order will define at whose expense the record is prepared. The record will be prepared at public expense where the petitioner is indigent, as set forth in rule 16.15(h). Oral argument is governed by rule 16.11(c).
[Originally effective July 1, 1976; amended effective July 2, 1976; September 1, 2014.]
RAP 16.14: PERSONAL RESTRAINT PETITION--APPELLATE REVIEW
(a) Decision Whether To Transfer. A decision to transfer a petition to a superior court for a hearing or to retain the petition for determination by the appellate court is not subject to review by the Supreme Court. A superior court decision to transfer a motion to the Court of Appeals for consideration as a personal restraint petition pursuant to CrR 7.8 is not subject to direct review by the Supreme Court.
(b) Decision of Superior Court. A decision of a superior court in a personal restraint proceeding transferred to that court for a determination on the merits is subject to review in the same manner and under the same procedure as any other trial court decision.
(c) Other Decisions. If the petition is dismissed by the Chief Judge or decided by the Court of Appeals on the merits, the decision is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rule 13.5A.
[Adopted effective July 1, 1976; amended effective September 1, 2006; September 1, 2014.]
RAP 16.15: PERSONAL RESTRAINT PETITION--SUPPLEMENTAL PROVISIONS
(a) Motion. The procedure for and form of a motion is as provided in Title 17. Motions will ordinarily be considered without oral argument.
(b) Release by Appellate Court of Person in Custody. The appellate court may release a petitioner on bail or personal recognizance before deciding the petition, if release prevents further unlawful confinement and it is unjust to delay the petitioner's release until the petition is determined. The appellate court or the superior court in its decision on the merits, or by separate order after a decision on the merits, may release a petitioner on bail or on personal recognizance. The appellate court may direct the release of petitioner with the conditions of release to be determined by a trial court.
(c) Oral Argument. Except as otherwise provided in rule 16.11(c), the procedure for oral argument is governed by Title 11.
(d) Disposition of Petition. The petition will be determined by the appellate court by written opinion or order briefly stating the reasons for the determination.
(e) Certificate of Finality. A certificate of finality is the written notification of the clerk of the appellate court to the trial court and the parties that the proceedings in the appellate court have come to an end.
(1) When Certificate of Finality is Issued by the Court of Appeals. The clerk of the Court of Appeals issues the certificate of finality:
(a) Thirty days after the decision is filed, unless (i) a motion for reconsideration of the decision has been earlier filed, or (ii) a motion for discretionary review to the Supreme Court has been earlier filed.
(b) If a motion for reconsideration is timely filed and denied, 30 days after filing the order denying the motion for reconsideration, unless a motion for discretionary review by the Supreme Court has been earlier filed.
(c) If a motion for discretionary review has been timely filed and denied by the Supreme Court, upon denial of the motion for discretionary review.
(2) When Certificate of Finality is Issued by the Supreme Court. The clerk of the Supreme Court issues the certificate of finality twenty days after the written opinion or order disposing of the petition is filed unless a motion for reconsideration of the decision is filed. If a motion for reconsideration is timely filed, the certificate of finality shall issue upon the entry of an order denying the motion for reconsideration.
(f) Costs. Costs are awarded as provided in Title 14.
(g) Indigency--Superior Court Determination. The provisions of CrR 3.1 apply to a personal restraint petition transferred to a superior court. If any of the petitioners expenses incurred in the superior court are to be paid with public funds, the expenses shall be paid with funds appropriated by the county in which the superior court is located.
(h) Indigency--Appellate Court Proceeding. If the restraint is imposed by the state or local government, and if the appellate court determines that petitioner is indigent, the court may provide for the appointment of counsel at public expense for services in the appellate court, order waiver of charges for reproducing briefs and motions, provide for the preparation of the record of prior proceedings and provide for the payment of such other expenses as may be necessary to consider the petition in the appellate court. Invoices for expenses of an indigent person in the appellate court must be submitted to the appellate court which decided the petition in the form and manner provided in rule 15.4, except that a trial court order of indigency is not required and the invoice must be submitted within 45 days after the appellate court decision terminating the proceeding is filed. If a petitioner who claims to be indigent is in the custody of an agency of the Department of Social and Health Services, the clerk of the appellate court will obtain a statement of petitioners known assets from the superintendent of the institution where petitioner is confined. Statutes providing for payment of expenses with public funds are not superseded.
References
Title 15, Special Provisions Relating to Rights of Indigent Party.
RAP 16.16: QUESTION CERTIFIED BY FEDERAL COURT
(a) Generally. The Supreme Court may entertain a petition to determine a question of law certified to it under the Federal Court Local Law Certificate Procedure Act if the question of state law is one which has not been clearly determined and does not involve a question determined by reference to the United States Constitution. Certificate procedure is the means by which a federal court submits a question of Washington law to the Supreme Court. This rule provides the procedure for implementing RCW 2.60.
(b) Caption of Pleadings and Briefs Filed in Supreme Court. The caption of the case should be:
CERTIFICATION FROM (ORIGINATING UNITED STATES COURT) IN
(Title of Action)
(c) Filing. The cause shall be filed, indexed, and numbered in the same manner as an appeal to the Supreme Court.
(d) Record. The record shall be certified by the federal court as required by statute.
(e) Briefs.
(1) Procedure. The federal court shall designate who will file the first brief. The first brief should be filed within 30 days after the record is filed in the Supreme Court. The opposing party should file the opposing brief within 20 days after receipt of the opening brief. A reply brief should be filed within 10 days after the opposing brief is served. The briefs should be served in accordance with rule 10.2. The time for filing the record, the supplemental record, or briefs may be extended for cause.
(2) Form and Reproduction of Briefs. Briefs should be in the form provided by rules 10.3 and 10.4. Briefs will be reproduced by the clerk in accordance with rule 10.5.
(f) Costs. The cost provisions of Title 14 are applicable except that both parties must file a cost bill, and that the commissioner or clerk will not award costs but will divide the total costs equally between the parties.
(g) Finality of Opinion. The opinion of the Supreme Court is certified to the federal court at the time a mandate would issue as provided in rule 12.5. The certification by the clerk states that the opinion is in answer to the question of Washington law submitted.
References
RCW 2.60, Federal Court Local Law Certificate Procedure Act.
[Amended effective September 1, 2006.]
RAP 16.17: OTHER RULES APPLICABLE
Rules 1.1, 1.2, 18.1, 18.3 through 18.10, and 18.21 through 18.24 are applicable to the special proceedings in this title.
RAP 16.18: POST-SENTENCE PETITIONS
(a) Generally. The Department of Corrections may petition the Court of Appeals for review of a sentence committing an offender to the custody or jurisdiction of the Department of Corrections. The review shall be limited to errors of law.
(b) Filing. The petition should be filed no later than 90 days after the Department of Corrections has received the documents containing the terms of the sentence. The petition should be filed in the division that includes the superior court entering the decision under review.
(c) Parties. When the Department files the petition, it should serve copies on the prosecuting attorney and on the offender whose sentence is in question. The appellate court clerk will serve the offender with a statement of the right to counsel and the right to proceed at public expense if indigent. If the offender was found indigent at trial and has been incarcerated since trial, continued indigency is presumed. In other cases where the offender claims indigency, the Court of Appeals may make a determination of indigency or may remand to the sentencing court for such a determination. The Court of Appeals may appoint counsel for indigent offenders and waive costs as provided in RAP 16.15(g) or may remand to the sentencing court for such appointment. All parties should file a written response to the petition within 45 days after the appellate court clerk notifies the offender of the right to counsel and the right to proceed at public expense. The Department has 20 days after service of the last response to file a reply.
(d) Petition. The petition should contain:
(1) The county and superior court cause number below;
(2) The crime for which the offender was convicted;
(3) The date the Department of Corrections received the documents containing the terms of the sentence;
(4) The address of the offender;
(5) The error of law at issue;
(6) A statement by the Department of Corrections of all efforts that have been made to resolve the dispute at the superior court level, and the results thereof;
(7) Argument;
(8) The relief requested;
(9) A conclusion; and
(10) An appendix. The appendix should contain a copy of the judgment and sentence, the warrant of commitment, and any response of the superior court regarding the Departments administrative efforts to resolve the issue.
(e) Consideration of Petition.
(1) Generally. The Chief Judge will consider the petition promptly after the time has expired for filing of the Departments reply. The Chief Judge determines at the initial consideration if the petition will be retained by the appellate court for determination on the merits.
(2) Determination by Appellate Court. The Chief Judge determines at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition. If the issues presented are frivolous, the Chief Judge will dismiss the petition. If the petition is not frivolous, the Chief Judge will refer the petition to a panel of judges for a determination on the merits. The Chief Judge may enter other orders necessary to obtain a prompt determination of the petition on the merits.
(3) Oral Argument. Decisions of the Chief Judge will be made without oral argument. If a petition is to be decided on the merits by a panel of judges, the appellate court clerk will set the petition for consideration by the panel of judges, with or without oral argument. If oral argument is directed, the clerk will notify the parties of the date set for oral argument.
(f) Disposition. The Court of Appeals will dispose of the matter in such manner as the ends of justice require.
(g) Review of Court of Appeals Decision. If the petition is dismissed by the Chief Judge or decided by the Court of Appeals on the merits, the decision is subject to review by the Supreme Court by a motion for discretionary review on the terms and in the manner provided in rule 13.5A.
[Amended effective September 1, 2006.]
RAP 16.19: PREPARATION OF REPORT OF PROCEEDINGS IN CAPITAL CASES
(a) The clerk of the trial court shall prepare a list of all pre-trial hearings, trial proceedings, and post-trial hearings, including any in camera or ex parte proceedings, that specifies the date of the hearing and the name of the court reporter. This list shall be served by the clerk of the trial court on each court reporter, the prosecuting attorney, the defendant's trial counsel and appellate counsel, and the trial judge within 10 days of the entry of a judgment and sentence. If appellate counsel has not been appointed to represent the defendant when the list is first prepared, the clerk of the trial court shall send a copy of the list to each appellate counsel within 10 days of appointment.
(b) Any party may serve and file objections to, and propose amendments to the list within 10 days after receipt of the list prepared by the clerk of the trial court. If objections or amendments to the list are served and filed, any objections or proposed amendments must be heard by the trial court judge for settlement and approval. If the judge before whom the proceedings were held is for any reason unable to promptly settle questions, another judge may act in the place of the judge before whom the proceedings were held.
(c) Once the list of hearings is settled, the clerk of the trial court shall serve a copy on each court reporter and shall file a copy with the Supreme Court. The final list should indicate the date it was served on the court reporters and the financial arrangements which have been made for payment of transcription costs.
(d) The court reporter shall complete the report of proceedings within 90 days after the reporter receives the list of hearings. If the report of proceedings cannot be completed within this time, the court reporter shall, no later than 10 days before the due date, submit an affidavit to the prosecuting attorney, to the defense appellate attorney, and to the Supreme Court stating the reasons for the delay. Any party or any court reporter may move for an extension of time from the Supreme Court.
(e) The court reporter shall file the report of proceedings with the clerk of the trial court. The clerk of the trial court shall transmit the report of proceedings to the Supreme Court. The clerk of the Supreme Court shall provide one copy of the report of proceedings to the defendant, two copies of the report of proceedings to the defendant's appellate attorney, and one copy of the report of proceedings to the prosecuting attorney.
(f) Objections or amendments to the report of proceedings may be served and filed within 30 days after the party receives a copy of the report of all proceedings. Copies of all objections shall be filed with the Supreme Court. The trial court shall settle the report of proceedings in accordance with RAP 9.5(c) and (d). The briefing schedule shall be suspended until the record is settled.
(g) The record may be corrected or supplemented at any time in accordance with RAP 9.10.
RAP 16.20: TRANSMITTAL OF JURY QUESTIONNAIRES AND CLERK'S PAPERS IN CAPITAL CASES
If questionnaires are used during jury selection, the clerk of the trial court shall seal and transmit a copy of all the questionnaires to the Supreme Court along with all of the clerk's papers, including copies of any clerk's minutes. The clerk of the Supreme Court will provide defendant's appellate counsel and the prosecuting attorney copies of all of the juror questionnaires. These copies shall remain in the possession of counsel and not be made available to the defendant.
The clerk of the Supreme Court shall copy and distribute the clerk's papers as follows: one copy to the defendant, two copies to the defendant's appellate attorneys, and one copy to the prosecuting attorney.
[Amended September 1, 2010]
RAP 16.21: CLERK'S CONFERENCE IN CAPITAL CASES
(a) Application of Rule. This rule applies only in direct appeals in criminal cases.
(b) Clerk's Conference. Upon receipt of the notice of appeal in a capital case by the Supreme Court, the clerk of the court shall set a clerk's conference. The clerk of the court shall give notice to the parties of the date, time, and place of the conference; the name of the commissioner or clerk who will conduct the conference; and the nature of the issues to be discussed at the conference. The convening of a clerk's conference shall not stay the requirements otherwise established by these rules. The clerk may continue a conference or convene another conference when necessary to establish procedures in the case.
(c) Attendance at Clerk's Conference. The attorneys for each party, if the notice requires it, shall attend the clerk's conference on the date, time, and place specified in the clerk's notice. Those in attendance should be ready to seriously consider the procedural issues attendant upon the case, including, but not limited to, settlement of the record, the briefing schedule, the page limitations for briefs, oral argument, and other matters which may promote the prompt and fair disposition of the appeal.
(d) Clerk's Conference Order. If, as a result of the clerk's conference, the parties agree to various matters to promote the prompt and fair disposition of the appeal, the Court may enter an order consistent with that agreement. If the parties fail to agree on any issue, the court will resolve the issues and enter an order. The order is binding on the parties during the review proceeding, unless the court otherwise directs on its own initiative or on motion of a party for good cause shown and on those terms the court deems appropriate.
RAP 16.22: FILING OF BRIEFS IN CAPITAL CASES
(a) The brief of an appellant shall be filed in the Supreme Court within 120 days after the report of proceedings is settled or the last date for filing any objections pursuant to Rule 16.19(f). The brief of a respondent shall be filed within 120 days after service of the brief of appellant.
(b) The personal restraint petition shall be filed within 180 days after the appointment of counsel or the courts determination that counsel will not be appointed. The response to a personal restraint petition shall be filed within 120 days after service of the petition.
(c) A brief of appellant or respondent, or a brief in support of or opposition to a personal restraint petition, shall not exceed 250 pages. A reply brief, a pro se supplemental brief, or the response to a pro se supplemental brief, shall not exceed 75 pages.
(d) If legal arguments are included in a personal restraint petition or the response to a personal restraint petition, no separate brief may be filed. A petition or response that contains legal arguments may not exceed 300 pages. The petition or response shall comply with RAP 10.4(a).
(e) The clerk will retain but not formally file a brief, petition, or response that exceeds these page limits, except on prior order of the court. Such an order will only be granted for compelling reasons. The clerk will not file a brief, petition, or response that violates the format requirements of RAP 10.4(a), if a properly formatted brief would violate the page limits. The clerk shall direct the party whose document has been rejected for formal filing to correct the deficiencies within a specified time period.
(f) For the purpose of determining compliance with this rule, appendices, the title sheet, table of contents, and table of authorities are not included.
Amended 3/9/99
RAP 16.23: ORAL ARGUMENT ON APPEAL IN CAPITAL CASES
(a) The parties may file a non-binding notice 14 days prior to oral argument that specifies the order in which issues will be presented and identifies which counsel will present the argument on each issue.
(b) At any time before receipt of such notice the clerk of the Supreme Court shall inform the parties if any member of the Court wants certain issues to be addressed during oral argument. After receipt of such notice, the clerk of the Supreme Court may notify the parties if any member of the Court wants additional issues to be addressed during oral argument.
(c) Each side is allowed 120 minutes for oral argument.
RAP 16.24: STAY OF EXECUTION IN CAPITAL CASES
(a) An application for stay of execution will be decided by the en banc court, except that a commissioner or the clerk may decide an application for a stay of execution in connection with a first petition for relief from restraint. No stay will be granted until after a death warrant has been issued. When any stay is granted, a commissioner or the clerk will immediately notify, in addition to the parties, the Superintendent of the Washington State Penitentiary and the Attorney General.
(b) The petitioner or his or her lawyer may file an application for a stay of execution in connection with a first petition for relief from restraint. This application shall be accompanied by a statement, describing one or more grounds for relief, which shall be deemed to be a petition for relief from restraint with leave granted to amend the petition upon appointment of counsel.
(c) Upon the filing of this application for stay of execution in connection with a first petition for relief from restraint and statement, a commissioner or the clerk shall issue a stay of execution, if the statement identified any ground for relief that is not patently frivolous.
(d) A stay of execution pending a final disposition of a second or subsequent petition shall not be granted unless the petition makes a substantial showing that the petition is not barred by RCW 10.73 or RAP 16.4(d).
(e) A stay of execution will dissolve when a certificate of finality is issued unless otherwise ordered by the court.
Comment
The date the statement of grounds for relief that accompanies an application for a stay of execution in connection with a first petition for relief from restraint is filed shall be deemed under Washington law to be "the date on which the first petition for post- conviction review or other collateral relief is filed," 1996 Antiterrorism and Effective Death Penalty Act, Chapter 154, sec. 2263(b)(2).
A stay will be granted "if the statement identifies any ground for relief that is not patently frivolous." In general, a claim could be considered "patently frivolous" only if (1) it was rejected on its merits on direct appeal, (2) it is clearly contrary to binding precedent, or (3) it is clearly contrary to the established record. A claim of ineffective assistance of counsel that was not raised on direct appeal will generally not be considered "patently frivolous."
RAP 16.25: APPOINTMENT OF COUNSEL ON PERSONAL RESTRAINT PETITION IN CAPITAL CITIES
Unless petitioner is proceeding pro se or is represented by retained counsel, upon a request by petitioner to the Clerk of the Supreme Court and upon a finding that the petitioner is indigent, the Supreme Court shall appoint counsel to assist in preparing and presenting a first personal restraint petition. Appointed counsel must have demonstrated the necessary proficiency and commitment which exemplifies the quality of representation appropriate to capital cases. At least one attorney so appointed must have at least three years of experience in handling appeals or collateral reviews on criminal convictions and must be learned in the law of capital punishment by training or experience.
A list of attorneys qualified for appointment in death penalty personal restraint petitions will be recruited and maintained by a panel created by the Supreme Court. In appointing counsel, the Supreme Court will consider this list. However, the Supreme Court will have the final discretion in the appointment of counsel in personal restraint petitions in capital cases.
Counsel will not be appointed if the petitioner has clearly elected to proceed pro se and the court is satisfied that petitioner's election is knowing, intelligent, and voluntary. An attorney who represented the petitioner at trial will not be appointed. An attorney who represented petitioner on direct appeal will not be appointed unless petitioner and the attorney expressly request continued representation. Statutes providing for payment of expenses with public funds are not superseded by this rule.
The Supreme Court may appoint counsel to assist in a second or subsequent petition in accord with RCW 10.73.150.
RAP 16.26: PERSONAL RESTRAINT PETITIONS IN CAPITAL CASES - DISCOVERY
(a) Before or after a person under sentence of death files a personal restraint petition, the Supreme Court, on motion of that person, may order discovery. To obtain such an order, the person under sentence of death must establish facts that give rise to a substantial reason to believe that the discovery will produce information that would support relief under RAP 16.4(c). Information in support of the request that the person under sentence of death believes is privileged may be separated into a second confidential affidavit which identifies the asserted privilege with specificity and the law supporting the assertion of the privilege. Any affidavit which does not contain confidential information and the motion must be served on the prosecutor. The procedure for and form of the motion is as provided in RAP Title 17. Motions will ordinarily be considered without oral argument. Prior to ruling on the motion, the Court will review the confidential affidavit to determine whether the contents therein are protected by the asserted privilege. If the asserted privilege does not apply, the court will serve the State with a copy of the confidential affidavit at least five working days before the State's response to the motion is due.
(b) After a person under sentence of death has filed a personal restraint petition, the Supreme Court, on motion of the State, may order discovery. To obtain such an order, the State must establish facts that give rise to a substantial reason to believe that the discovery will produce information that would support the denial of relief under RAP 16.4(c).
(c) Discovery conducted pursuant to this rule shall be governed by the civil rules, unless otherwise ordered by the court.
(d) In the event a remand hearing is ordered, discovery shall be governed by RAP 16.12.
(e) Discovery may be allowed for preparation of a second or subsequent petition attacking the same judgment and sentence only upon a substantial showing that the petition is not barred by RCW ch. 10.73 or RAP 16.4(d).
RAP 16.27: PERSONAL RESTRAINT PETITION IN CAPITAL CASES - INVESTIGATIVE, EXPERT, AND OTHER SERVICES
Before or after the filing of a personal restraint petition, a person under sentence of death may file a motion for investigative, expert, or other services. Such a motion shall be granted only if the person establishes facts that give rise to a substantial reason to believe that the services will produce information that would support relief under RAP 16.4(c), and if the legislature has authorized and approved funding for such services. The motion shall be directed to the Supreme Court and may be made ex parte. Upon a showing of good cause, the moving papers may be ordered sealed by the court and shall remain sealed until further order of the court. Services may be allowed for preparation of a second or subsequent petition attacking the same judgment and sentence only upon a substantial showing that the petition is not barred by RCW ch. 10.73 or RAP 16.4(d).