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¶37 (concurring) — The Washington Constitution, article I, section 20, states that criminal defendants “shall be bailable by sufficient sureties.” I agree with the majority that this means that criminal defendants have the right to make bail not just by posting cash but alternatively by using a surety, that is, a third party guarantor. I agree with the majority’s analysis of the meaning and importance of this constitutional provision. And I agree with the majority that the trial court’s October 18, 2012, order in this case violated that constitutional *169provision: it required the defendant to post cash with the court and prohibited him from using a surety. Majority at 168 (“We hold that the October 18, 2012 order entered in this case improperly prohibited Barton’s access to a surety as guaranteed by article I, section 20.”).

Gordon McCloud, J.

*169¶38 But, as the majority acknowledges, the trial court’s October 18, 2012, order “tracked the language of [Criminal Rule] CrR 3.2(b)(4).” Majority at 163. And as the majority further acknowledges, even the portion of the trial court’s October 18, 2012, order barring the defendant from using a surety to post cash with the court tracked CrR 3.2(b)(4), when read in context with the rest of that rule. Majority at 165-66. A fortiori, CrR 3.2(b)(4) itself — and not just the trial court’s order that relied on that rule and tracked its language — violates article I, section 20.

¶39 The majority, however, makes a complicated argument about why CrR 3.2(b)(4) nevertheless remains constitutional. It reasons that the rule was fine but that the trial court erred in following that rule to the letter.

¶40 I disagree. The trial court did follow the rule. The trial court’s order was unconstitutional in this case. The subsection of CrR 3.2(b) that the trial court tracked was unconstitutional as applied in this case. I don’t understand how one can fault the trial court for applying the literal language of the rule but not fault the rule.

¶41 For that reason, I respectfully concur in the vast bulk of the majority’s analysis and in its conclusion. I disagree, however, with its assertion that CrR 3.2(b)(4)— the statutory subsection that formed the basis for the unconstitutional bail order — survives constitutional scrutiny.

Madsen, C.J., and González, J., concur with Gordon McCloud, J.

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How this case has been treated — in progress