State v. Arambul , 25 Wash. App. 232 ( 1980 )

McInturff, J.

(dissenting) — Once again I dissent from my brothers' condonation of formalism over finalism.⁵

The present JCrR 6.01 through 6.03 were promulgated to free the appellant from the onerous task of transporting a certified transcript from the district court to the superior court as required by the predecessor rules. The majority has now imposed an even greater burden with a greater potential for injury to the unwary appellant. While the appellant no longer has the burden of taking the district court transcript to the superior court, he must now rely on the clerk of the district court to transmit the transcript. JCrR 6.01(d).⁶ If he does not receive notice, then he must use permissive motion practice in the superior court to compel the district court to do that which it should, JCrR 6.03(a),⁷ or, according to the majority, lose his right to appeal. If the reasoning of the majority is allowed to prevail, it will convert the permissive motion practice under JCrR 6.03(a) into a mandatory motion practice.

This case illustrates that JCrR 6.01(d) and JCrR 6.03(a) are, at a minimum, ambiguous — an important factor to consider in determining whether there is excusable neglect under JCrR 10.01(b)⁸ See Goldendale v. Graves, 14 Wn. App. 925, 546 P.2d 462 (1976), aff'd on different grounds, 88 Wn.2d 417, 562 P.2d 1272 (1977).

The facts are simple — the clerk of the Toppenish District Court failed to perform a mandatory duty under JCrR 6.01(d) — "[t]he justice court shall give prompt notice of the filing [of the transcript in superior court] to the respondent and the appellant". (Italics mine.) This omission lulled the appellant's attorney into nonactivity. Is this a proper basis for denying an appeal from district court?

The majority's reliance upon State v. Miller, 19 Wn. App. 432, 576 P.2d 1300, review denied, 90 Wn.2d 1018 (1978), and State v. Twogood, 14 Wn. App. 447, 542 P.2d 793 (1975), is misplaced. Both cases are distinguishable.

In State v. Miller, supra, there was an undated notation on the transcript indicating that notice of filing had been sent to the defendant and his attorney. The defendant contended that neither he nor his attorney received the notice. In the instant case, it is undisputed that notice of filing the transcript was never given. In State v. Twogood, supra, the justice court clerk notified the defendant's attorney by letter "this [notice of appeal] will be filed with the county clerk within the 10 day limit." Here, there was no notice to the defendant or his attorney that the transcript had been filed as required by JCrR 6.01(d).

The majority states, "The primary function of [JCrR 6.01(d)] is to advise an appellant that the 20 days has commenced running in cases where the clerk has filed the transcript before the end of the 10-day period." I disagree. JCrR 6.01(d) marks a complete departure from the predecessor rule which charged the appellant with the responsibility of filing the transcript with the clerk of the superior court.⁹ The present rule (6.01(d)) was created because of inherent problems encountered by appellants in serving a copy of the written notice of appeal on the respondent, etc., and taking the transcript from justice court to superior court.¹⁰ This rule limits the appellant's responsibility on appeal to filing a notice of appeal and noting it for trial within 20 days after receiving notice from the justice court that the transcript has been filed in superior court. Thus, under the old rule, the appellant knew when the transcript had been filed because the appellant personally had the duty of filing the transcript.

JCrR 6.01(d) states: "The justice court shall give prompt notice of the filing ..." (Italics mine.) Under a separate section of the Justice Court Criminal Rules, 6.03(a), if the lower court fails to certify the transcript within the time allowed, the appellant may make application to the superior court not later than 20 days after the filing of the notice of appeal and the superior court shall issue an order to make and certify the transcript.

I find it rational and reasonable for a busy lawyer to havé read JCrR 6.01(d) and assumed, without adverting to the legal rationalization of the majority, that he could safely await the notice from the justice court that the transcript had been filed. Although not strictly a defense, the defendant's attorney, through his experience with the Yakima District Court, had been accustomed to receiving notice that the transcript had been filed, by certified mail, return receipt requested. See State v. Pemberton, 18 Wn. App. 772, 572 P.2d 728 (1977). There was no showing of intentional noncompliance with JCrR 6.03(a). Defense counsel, in good faith, assumed the court would comply with the mandatory provisions of JCrR 6.01(d).

Under the instant facts, 1 would find excusable neglect under JCrR 10.01(b)(2) for the delay in noting this case for trial.

I conclude with the words of our Supreme Court in Goldendale v. Graves at 88 Wn.2d 424: "Doubts should be resolved in favor of protecting the right of appeal; we should be slow to deprive a litigant of that right."

5 finalism — a belief in something that is the end or purpose of a process. Used in Aristotelianism. Webster's Third New International Dictionary (1969).

See also State v. Shong-Ching Tong, 23 Wn. App. 886, 890, 598 P.2d 1384 (1979) (McInturff, J., dissenting); State v. Berg's Economy Sales & Serv., 20 Wn. App. 904, 907, 582 P.2d 912 (1978) (McInturff, J., concurring); Goldendale v. Graves, 14 Wn. App. 925, 546 P.2d 462 (1976), aff'd on different grounds, 88 Wn.2d 417, 562 P.2d 1272 (1977).

6 JCrR 6.01(d):

"The justice court shall give prompt notice of the filing or mailing to the respondent and appellant, giving such particulars as date of filing or mailing and superior court file number, if known. Where the justice court is not located at the county court house, such filing may be made by certified mail, in which case the justice court shall advise appellant and respondent of the date of mailing." (Italics mine.)

7 JCrR 6.03(a):

"If the lower court fails, neglects or refuses to make and certify the transcript within the time allowed, the appellant may make application to the superior court not later than twenty days after the filing of the notice of appeal and the superior court shall issue an order to make and certify the transcript." (Italics mine.)

8 JCrR 10.01(b):

"Whenever by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court, for good cause shown, may at any time in its discretion: (1) with or without motion or notice order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion and notice permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect..."

9 JCrR 6.01 effective July 1, 1963, amended December 23, 1968, read: "The appeal shall be taken by serving a copy of a written notice of appeal upon the attorney for the party in whose favor judgment was entered and by filing the original thereof with acknowledgment or affidavit of service thereof with the court in which the case was tried within 10 days after entry of judgment. If a motion for a new trial or for the arrest of judgment has been timely made, such notice and proof of service may be filed within 10 days after entry of the order denying the motion.

"After notice of appeal is given as herein required, appellant shall diligently prosecute his appeal, and within 30 days from the day of entry of judgment, shall file with the clerk of the superior court a transcript duly certified by such judge, furnished by such judge without charge, and containing a copy of all written pleadings and docket entries of the lower court. Within 10 days after the transcript is filed, appellant shall note the case for trial.” (Italics mine.)

10 State v. Gregory, 74 Wn.2d 696, 698, 446 P.2d 191 (1968); State v. Carmody, 75 Wn.2d 615, 617, 452 P.2d 959 (1969); State v. Sodorff, 84 Wn.2d 888, 890, 529 P.2d 1066 (1975).