You too Can Prosecute by Harry Gasnic


Those of your readers who are interested in your paper’s discussion regarding the establishment of a grand jury system should be aware that there currently exists a mechanism for the filing of citizen initiated criminal (misdemeanor and gross misdemeanor) complaints in district court.  Those procedures are set forth in rule CrRLJ 2.1(c) which can be found at www.courts.wa.gov and have been in place for decades.  However, that rule is currently being reviewed with an eye towards repeal per the request Board of Governors of the Washington State Bar Association (WSBA) (of which I am a member) at the behest of the District Court and Municipal Judges Association (DCMJA).

The legal basis for the proposed repeal relates to concerns the rule may violate the “separation of powers” doctrine and therefore be unconstitutional. This is the fourth time since 1987 the DCMJA has sought to repeal the rule, always for that reason. This time the DCMJA relied upon the analysis of State v. Rice 174 Wn. 2d 884 (2012) to support its position that the rule “encroach(es) on a prosecuting attorney’s charging discretion and imposing duties on the judiciary as to whether a criminal case may be filed”.

The WSBA agreed with the DCMJA on the issue of separation of powers and further noted deficiencies in the rule regarding its efficacy. The WSBA concludes that RCW 43.10.232, which provides citizens the ability to petition the governor or attorney general to pursue charges “provides a more effective, and constitutional mechanism where a local prosecutor refuses to act.”

The Washington Association of Criminal Defense Lawyers (WACDL), of which I am also a member, has weighed in supporting keeping the rule in place. WACDL contends that because the rule does not make filing of a charge mandatory or compel the prosecutor to take any action, it does not violate “separation of powers”. They go on to urge the citizen complaint process should be preserved “as a check on the executive branch and the non-filing of charges” and as part of a “citizen’s right to contribute to government”.

It is only fair to note the existent rule is problematic from a pragmatic perspective.  Because of the very legitimate concerns for potential abuses, the rule currently contemplates substantial oversight by the court before any such charges can actually be filed.  That substantial oversight renders the rule unwieldy, such that its implementation is time consuming, expensive, and (limited) court-resource intensive.

I believe the comment period relative to the proposed partial repeal of the court rule has run. However interested readers can read the comments submitted by DCMJA, WACDL, the WSBA, and others at links from the previously mentioned web-site

Harry Gasnick

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