State v. Arambul

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

¶2The 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 *237use 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.

¶3This 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)8See 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).

¶4The 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?

¶5The 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.

¶6*238In 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).

¶7The 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 *239appeal 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.

¶8JCrR 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.

¶9I 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).

¶10Under the instant facts, 1 would find excusable neglect under JCrR 10.01(b)(2) for the delay in noting this case for trial.

¶11I 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."