# State Ex Rel. Moore v. Houser

> Washington Supreme Court · December 28, 1978 · 91 Wash. 2d 269

URL: https://www.frixlaw.com/law-library/cases/9602426

## Case

- **Full name:** The State of Washington, on the Relation of Ralph A. Moore, Petitioner, v. Paul Houser, Respondent
- **Court:** Washington Supreme Court
- **Decided:** December 28, 1978
- **Citations:** 91 Wash. 2d 269; 588 P.2d 219; 1978 Wash. LEXIS 1176
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Stafford
- **Judges:** Stafford
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602426

## Opinion text

Stafford, J.
Ralph Moore petitioned this court for review of a Court of Appeals opinion that affirmed the Superior Court's refusal to issue a writ prohibiting a municipal court from proceeding with petitioner's trial. We reverse the Court of Appeals and remand the cause to the Superior Court for issuance of a writ of prohibition consistent with this opinion.
The owner of a damaged automobile gave a police officer reason to believe that petitioner, Moore, had collided with *271 his parked car. Petitioner was arrested on September 28, 1975, and booked on a charge of driving while intoxicated. On September 29 a municipal court citation was issued, bail was set at $250, and petitioner was released on his personal recognizance.
On November 25, petitioner entered a plea of not guilty and trial was set for December 12. Petitioner appeared for trial as ordered. Although more than 60 days had elapsed since his first appearance, petitioner did not move for dismissal of the case as authorized by JCrR 3.08. 1
The City called the arresting officer as its only witness. Cross-examination of the officer revealed that the owner of the damaged vehicle was a witness to the alleged offense. Petitioner argued that the missing witness was necessary to the City's case and should have been called.
Despite the court's urging, petitioner refused to request a continuance to call what might have been an adverse witness. The City also declined to ask for a continuance asserting it had established a prima facie case. Although inclined to agree with the City, the court again "suggested" that the City ask for a continuance. Thereafter, the City made the request, which was granted over petitioner's objection. In spite of petitioner's objection, the municipal court continued the matter an additional 63 days to February 13, 1976, 137 days after petitioner's first appearance.
Prior to February 13 petitioner moved to dismiss the case in municipal court pursuant to JCrR 3.08. The motion was denied. His application for a writ of prohibition was denied by the Superior Court. Thereafter, the Court of Appeals affirmed the trial court holding the Superior Court *272 could adequately review the speedy trial issue after the trial was concluded in municipal court. State ex rel. Moore v. Houser, 16 Wn. App. 363 , 556 P.2d 556 (1976). We granted a petition for review. The Court of Appeals is reversed and the cause is remanded to the Superior Court with instructions to issue a writ of prohibition consistent herewith.
This case is controlled by State v. Mack, 89 Wn.2d 788 , 576 P.2d 44 (1978). While the facts of the two cases are somewhat different, the ultimate effect is the same. In both cases, over the objection of the petitioner, a trial was set well beyond the period of time authorized by JCrR 3.08. In both, a motion to dismiss made pursuant to JCrR 3.08 was denied by a court of limited jurisdiction and a superior court denied a writ prohibiting trial in municipal court. In both, petitioners were relegated to a trial de novo.
In Mack we held that a clear violation of JCrR 3.08 absolutely terminates litigation with prejudice. Because of the terminating effect we further held that extraordinary relief is proper to review the denial of a motion to dismiss for violation of JCrR 3.08. As we said in Mack at pages 790-91:
The first issue before us concerns the remedy by which appellants may seek relief from the original interlocutory orders denying their motions to dismiss. Respondents argue that relief by writ of prohibition is improper because appellants could have sought relief by appeal to the Superior Court. It is said that a trial de novo in Superior Court would afford appellants a plain, speedy and adequate remedy which precludes relief by extraordinary writ. This argument begs the question. A trial de novo would subject appellants to the very trial they seek to avoid. Further, a trial de novo would reach the merits of the misdemeanor charges, but not the propriety of the interlocutory orders. See State v. Ladiges, 66 Wn.2d 273 , 401 P.2d 977 (1965); State v. Miller, 59 Wn.2d 27 , 365 P.2d 612 (1961). Consequently, appellants properly raised the dismissal issue by means of an extraordinary writ.
(Italics ours.) In short, the extraordinary relief granted in Mack was necessary to "forestall the necessity of two trials" *273 and to prevent a waste of the litigant's funds and judicial time. We recognized in Mack that a defendant should not be required to relitigate the merits of a criminal charge in Superior Court in order to determine whether a municipal court trial should have occurred in the first place.
JCrR 3.08 not only provides a defendant with a valuable speedy trial, but it requires a dismissal with prejudice if the rule is violated. If a court of limited jurisdiction disregards or misapplies the rule and a defendant must face a trial de novo in superior court, his right to a dismissal with prejudice without a trial, is irretrievably lost as are the funds unnecessarily expended defending the case, to say nothing of time lost to all, including the courts. To hold otherwise would place a premium on both prosecutorial and judicial delay, against which a defendant would have no recourse at the district court level. If a defendant were left with no choice but to face the unnecessary expense, inconvenience, and loss of time involved in a municipal court trial as well as a more expensive rerun in superior court, we fear the State would be armed with a potent weapon indeed. Defendants would lose what heretofore has been deemed an important protection. The few who might attempt to enforce JCrR 3.08 would find it an expensive luxury rather than the guaranty of expeditious trial it was intended to be.
It is argued that piecemeal review and resultant delay in the resolution of criminal cases should be deplored, citing United States v. MacDonald, 435 U.S. 850 , 56 L. Ed. 2d 18 , 98 S. Ct. 1547 (1978). MacDonald is not in point, however. In that case the court made it clear that the Sixth Amendment right to speedy trial would not be "irretrievably lost" if review awaited an appeal. Such is not the case where petitioner would be faced with a trial de novo as he would under JCrR 3.08. Although MacDonald stressed that the right to speedy trial does not involve the right not to be tried the contrary is true with JCrR 3.08. The rule itself calls for dismissal with prejudice if the 60-day limit is violated. Further, the extent of Sixth Amendment "speedy *274 trial" rights is a relative matter based primarily upon the presence of prejudice in the individual case. To the contrary, dismissal is required by JCrR 3.08 whether a defendant is prejudiced or not. Under JCrR 3.08 the question is not prejudice but an absolute time limit set by rule. Finally, MacDonald noted that in the Sixth Amendment sense, proceeding to trial does not cause or compound the deprivation already suffered by one trial. However, in the instant case, as in Mack , the petitioner needlessly would be required to jump through the hoops twice at additional expense and with an additional investment of time and effort.
To do other than follow our earlier decision in Mack , would be to do a disservice to the criminal justice system by unnecessarily laying the groundwork for the destruction of JCrR 3.08 in the name of expediency. 2
Wright, C.J., and Utter, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., concur.
"Continuances may be granted to either party for good cause shown. Also, the court, on its own motion, may postpone the trial for good and sufficient reason. In either case, the continuance or postponement must be to a date certain. If the defendant is not brought to trial within 60 days from, the date of appearance, except where the postponement was requested by the defendant, the court shall order the complaint to be dismissed, unless good cause to the contrary is shown. Dismissal under such circumstances shall be a bar to further prosecution for the offense charged." (Italics ours.) JCrR 3.08.
The dissent contends that the majority somehow has denied defendants' possible rights of appeal and/or such other post-conviction remedies as might be available under JCrR 3.08. In order to achieve this end the dissent finds it necessary to recommend the overruling of our unanimous opinion in State v. Mack, 89 Wn.2d 788 , 576 P.2d 44 (1978) despite the fact that the ink on the opinion is hardly dry.
A careful reading of the majority opinion makes it abundantly clear that under the facts of this case "extraordinary relief is proper to review the denial of a motion to dismiss for violation of JCrR 3.08." (Italics ours.) We do not hold or imply that such relief is the exclusive remedy or that if a defendant might desire to proceed by way of appeal and trial de novo he would be precluded from so doing. Also, we do not suggest that what we have deemed a proper remedy herein, somehow may become an exclusive remedy that could undermine one's right to seek post-conviction relief in the right setting. In short, we recognize that a defendant has an alternative and may employ extraordinary relief if other means fail to or do not adequately protect those rights afforded by JCrR 3.08. Our holding is entirely consistent with our earlier unanimous opinion in State v. Mack, supra.
Further, as noted earlier in this opinion, the dissent's reliance upon United States v. MacDonald, 435 U.S. 850 , 56 L. Ed. 2d 18 , 98 S. Ct. 1547 (1978) is erroneous. The Sixth Amendment and speedy trial issues raised in MacDonald are dependent upon proof of prejudice which is a relative matter. This is very different from the application of JCrR 3.08 under which dismissal is required whether a defendant is prejudiced or not.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602426. Public record. Not legal advice.