Amicus Curiae Brief — Kalina v. Fletcher

Supreme Court, U

FILED

(1 APR 23 1997

No. 96-792 CLERK

S97 >5-—oOolelooo eee

In The

Supreme Court of the United States

October Term, 1996

>

LYNNE KALINA,

Petitioner,

RODNEY FLETCHER,

Respondent.

>

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF THE THIRTY-NINE COUNTIES

OF THE STATE OF WASHINGTON* AS AMICI

CURIAE IN SUPPORT OF PETITIONER

¢

Russet. D. Hauce

Kitsap County Prosecuting

Attorney

PaMetA BetH LocInsky

Counsel of Record

Senior Deputy Prosecuting

Attorney

Kitsap County Courthouse

614 Division Street, MS-35

Port Orchard, WA 98366

(360) 876-7174

"Counties listed on inside cover

Davip SANDHAUS

Adams County

Prosecuting Attorney

Ray Lutes

Asotin County

Prosecuting Attorney

ANpREW K. MILLER

Benton County

Prosecuting Attorney

Gary RiesEN

Chelan County

Prosecuting Attorney

Davip BRUNEAU

Clallam County

Prosecuting Attorney

ARTHUR CuRTIS

Clark County

Prosecuting Attorney

Terry NEALEY

Columbia County

Prosecuting Attorney

James STONIER

Cowlitz County

Prosecuting Attorney

Steven M. Ciem

Douglas County

Prosecuting Attorney

ALLEN C. NIELSON

Ferry County

Prosecuting Attorney

Steve M. Lowe

Franklin County

Prosecuting Attorney

JoHN Henry

Garfield County

Prosecuting Attorney

JOHN KNODELL

Grant County

Prosecuting Attorney

H. STEWARD MENEFEE

Grays Harbor County

Prosecuting Attorney

WituraM H. Hawkins

Island County

Prosecuting Attorney

Davip SKEEN

Jefferson County

Prosecuting Attorney

Norm MALENG

King County

Prosecuting Attorney

Russet. D. Hauce

Kitsap County

Prosecuting Attorney

Grec ZEMPEL

Kittitas County

Prosecuting Attorney

Knute RIFE

Klickitat County

Prosecuting Attorney

Mason County

Prosecuting Attorney

Rick Weser

Okanogan County

Prosecuting Attorney

MicHaet SMITH

Pacific County

Prosecuting Attorney

Tuomas A. Merzcer

Pend Oreille County

Prosecuting Attorney

JouHN LADENBURG

Pierce County

Prosecuting Attorney

RANDALL K. GayLorp

San Juan County

Prosecuting Attorney

Gari Lonc

Skagit County

Prosecuting Attorney

BrapDLey ANDERSON

Skamania County

Prosecuting Attorney

Prosecuting Attorney

Joun G. Werte

Stevens County

Prosecuting Attorney

BERNARDEAN BROADOUS

Thurston County

Prosecuting Attorney

Frep A. JOHNSON

Wahkiakum County

Prosecuting Attorney

James L. NacLe

Walla Walla County

Prosecuting Attorney

Davip S. McEAcHRaANn

Whatcom County

Prosecuting Attorney

James KAUrMAN

Whitman County

Prosecuting Attorney

Jerrrey C. SULLIVAN

Yakima County

Prosecuting Attorney

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .................+5- 1

PEE wen ceWe sv ecteccccccvoscoctuvescccccecs 7

GPG F800 cede cecdsc cds cecsveworsccccccces 13

ii

TABLE OF AUTHORITIES

Feperat Cases:

Beck v. Washington, 369 U.S. 541 (1962)...........++-. 1

Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994),

cert. denied, __ U.S. __, 115 S. Ct. 740 (1995) .... 13

Ehrlich v. Giuliani, 910 F.2d 1220 (4th Cir. 1990) ...... 8

Fletcher v. Kalina, 93 F.3d 653 (9th Cir. 1996), cert.

granted, __ U.S. __, 117 S. Ct. 1079 (1997)

nonsesestenenudedstoukecdsasseseneaeds 7, 8, 11, 12, 13

Gerstein v. Pugh, 420 U.S. 103 (1975) ........--.eeeees 5

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 10

Hill v. City of New York, 45 F.3d 653 (2nd Cir. 1995) .... 13

Imbler v. Pachtman, 424 U.S. 409 (1976)...... 7, 9, 10, 11

Joseph v. Patterson, 795 F.2d 549 (6th Cir. 1986), cert.

denied, 481 U.S. 1023 (1987)...........-0eeeeeeeeeee 8

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983)...... 8, 10

Myers v. Morris, 810 F.2d 1437 (8th Cir. 1987) ........ 8

Pena v. Mattox, 84 F.3d 894 (7th Cir. 1996)............ 8

Pinaud v. Suffolk, 52 F.3d 1139 (2d Cir. 1995) ......... 8

Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997)...... 8, 10

Schrob v. Catterson, 948 F.2d 1402 (3rd Cir. 1991)...... 8

WASHINGTON CASEs:

In re Special Inquiry Judge, 899 P.2d 800 (Wash.

App. 1995) .......ccccccccccccccccseccccsccecsseees 1

iii

TABLE OF AUTHORITIES - Continued

Page

State v. Arnold, 914 P.2d 762 (Wash. App.), review

denied, 925 P.2d 989 (Wash. 1996) .................. 6

State v. Autrey, 794 P.2d 81 (Wash. App.), review

denied, 802 P.2d 127 (Wash. 1990) . <4 eS ae 6

State v. Bazan, 904 P.2d 1167 (Wash. App. 1995),

review denied, 919 P.2d 600 (Wash. 1996)............ 5

State v. Becker, 801 P.2d 1015 (Wash. App. 1990)...... 6

State v. Bryant, 828 P.2d 1121 (Wash. App.), review

denied, P.2d 1389 (Wash. 1992) ................. 5

State v. Cooper, 816 P.2d 734 (Wash. App. 1991)....... 6

State v. Garcia, 829 P.2d 241 (Wash. App.), review

denied, 838 P.2d 1143 (Wash. 1992)................. 5

State v. Greenwood, 845 P.2d 971 (Wash. 1993)......... 4

State v. Hammond, 854 P.2d 637 (Wash. 1993) ........ 10

State v. Herzog, 771 P.2d 739 (Wash. 1989)............ 6

State v. Jackson, 878 P.2d 453 (Wash. 1994)........... 10

State v. Kjorsvik, 812 P.2d 86 (Wash. 1991)....... noone

State v. Marler, 911 P.2d 420 (Wash. App.), review

denied, 919 P.2d 601 (Wash. 1996) .................. 5

State v. Overvold, 825 P.2d 729 (Wash. App. 1992) ..... 6

State v. Reece, 757 P.2d 947 (Wash. 1988), cert.

nk ewes 7

State v. Saas, 820 P.2d 505 (Wash. 1991) .............. 6

State v. Schroeder, 834 P.2d 105 (Wash. App. 1992)..... 6

State v. Stewart, 922 P.2d 1356 (Wash. 1996) .......... 4

iv

TABLE OF AUTHORITIES - Continued

Page

State v. Striker, 557 P.2d 847 (Wash. 1976) ............ 4

State v. Thornton, 835 P.2d 216 (Wash. 1992).......... 6

State v. Tindal, 748 P.2d 695 (Wash. App. 1988)....... 6

OTHER JURISDICTIONS:

Pearson v. Reed, 44 P.2d 592 (Cal. App. 1935)......... 7

CONSTITUTIONAL PROVISIONS:

Cie, Gems, GOR. G, BH Bi ccc ccccccceccessccsccesceses 1

STATUTES AND REGULATIONS:

GB BE, B Fives decccccnccescccvctocccscccesees 7, 13

Chapter BO.27 GW... cccccsscsccccccccccesevevcccece 1

Ceemee GEE BW oc cc ccccccccccccccvcccccvccecccce 1

King County LCrR 2.2........ 0. cece cece cece ee eeeeees 2

SE CEE oc vd vcovcccnveucdesccecesssecceouncsens 2

MER heocccwcesctccoccoccesncscesesenaeeses 2

ED 0 noc cdvedccccessncdbecessd dinvcases 13

_. ff < ss FPPOTIT TIT rt re ree 4,14

= f * PPT tiit 12

PR ekScedcccccovescecncscesecccessécnens 12

Thurston County LCrR 2.2........ 6c ccc cece eee eens 3

Wash. Crim. Rule for Courts of Limited Jurisdic-

Be Be 6 vc cccbediddetichScs take e Deb iie nds 12

Vv

TABLE OF AUTHORITIES - Continued

Page

Washington Criminal Rule 2.1.................6.000005 2

Washington Criminal Rule 2.2(a)..................06. 5

Washingtco». Criminal Rule 3.2(a)..................... 5

Washington Evidence Rule 609...................005. 6

Washington Juvenile Court Rule 7.5(b)............... 5

Washington Laws 1909, c. 87..........66. cece ee eeees 1

OrHER AUTHORITIES:

Office of the Administrator for the Courts, Case-

loads of the Courts of Washington 1995 (1996)........ 2

Washington Senate Staff Memorandum, Grand

Si i cn ccnuekdcadeecshvessceccvces 13

INTEREST OF AMICI CURIAE?!

The State of Washington abandoned its mandatory

grand jury practice some 80 years ago.? While grand

juries are still convened on rare occasions in Washing-

ton’, the vast majority of Washington prosecutions are

instituted on information filed by the prosecutor. On

many occasions the information is filed without a prior

judicial determination of “probable cause”. Washington's

charging procedure, which is specifically authorized by

the Washington Constitution‘, received this Court's

approval in Beck v. Washington, 369 U.S. 541, 545 (1962).

1 Counsel for both petitioner and respondent have

consented to the filing of this brief. Their consents are on file

with the Clerk.

2 Washington Laws 1909, c. 87.

3 Grand juries in Washington are convened only on special

occasions and for specific purposes. Between 1917 and 1957, the

most populous county in Washington, King County, had

summoned a total of eight grand juries. Beck v. Washington, 369

U.S. 541, 545 (1962). These grand juries were utilized primarily

to investigate corruption. The statute under which these eight

grand juries were convened, Chapter 10.28 RCW, was repealed

in 1971.

The new grand jury statute, Chapter 10.27 RCW, created a

“special inquiry judge”. The “special inquiry judge” performs

many of the investigative functions of a grand jury. See generally

In re Special Inquiry Judge, 899 P.2d 800 (Wash. App. 1995). Grand

juries, therefore, have been used even less frequently in

Washington than when this Court rendered its opinion in Beck v.

Washington, supra.

* Wash. Const. art. 1, § 25 provides that:

Offenses heretofore required to be prosecuted by

indictment may be prosecuted by information, or by

indictment, as shall be prescribed by law.

Thousands of criminal cases each year are initiated

by information in the State of Washington by Prosecuting

Attorneys and their deputies.5 While a statute provides

that the only document needed to initiate a criminal

charge is an information®, local court rules in two coun-

ties, including King County where the petitioner, Lynne

Kalina, is employed, require the prosecutor to file an

additional document.” This additional document is

5 Both juvenile offender cases and criminal cases filed in

the Washington superior courts are initiated by information.

Washington Criminal Rule 2.1; RCW 13.40.070. In 1993, 29,765

criminal cases and 24,360 juvenile offender cases were filed in

the superior courts of Washington. In 1994, 30,395 criminal cases

and 25,883 juvenile offender cases were filed in the superior

courts of Washington. In 1995, 33,965 criminal cases and 27,716

juvenile offender cases were filed in the superior courts of

Washington. See Office of the Administrator for the Courts,

Caseloads of the Courts of Washington 1995, at 38 (1996).

6 RCW 10.37.010 provides that:

No pleading other than an indictment, information or

complaint shall be required on the part of the state in

any criminal proceedings in any court of the state,

and when such pleading is in the manner and form as

provided by law the defendant shall be required to

plead thereto as prescribed by law without any

further action or proceedings of any kind on the part

of the state.

7 King County LCrR 2.2 provides as follows:

Warrant Upon Indictment Or Information

(b) Issuance of Summons in Lieu of Warrant.

(1) When Summons Must Issue. Absent a

showing of cause for issuance of a warrant, a

summons shall issue for a person who has been

released by a magistrate on the preliminary

appearance calendar. The person shall be directed to

generally referred to in Washington practice as a “certifi-

cate of probable cause”.

appear on the arraignment calendar one week after

the date of his/her release.

(g) Information to Be Supplied to the Court.

When a charge is filed in Superior Court and a warrant is

requested, the Court shall be provided with the following

information about the person charged: /

(1) The pretrial release interview form,

completed by either a bail interviewer or by the

defense counsel.

(2) By the prosecuting attorney, insofar as possible.

(A) A brief summary of the alleged facts of the

charge;

(B) Information concerning other known

pending or potential charges;

(C) A summary of any known criminal record;

(D) Any other facts deemed material to the

issue of pretrial release.

(3) Any ruling of a magistrate at a preliminary

appearance.

[Emphasis added.]

Thurston County LCrR 2.2, provides as follows:

Warrant Upon Indictment Or Information

Information to be Supplied to the Court.

When a charge is filed in the Superior Court and an order

for a warrant or a summons is requested, the court shall be

provided with the following information about the person

charged:

(1) The pretrial release interview form, if one

has been completed by the Pretrial Services Unit.

The filing of the information, under Washington law,

can trigger the start of Washington’s court rule speedy

trial period. A failure to secure the presence of the

defendant in court within 104 days of the filing of the

information may result in the dismissal of charges with

prejudice.? Both the Washington courts and the Washing-

ton legislature have placed the burden of securing the

presence of the defendant in court upon the prosecutor.'°

(2) By the prosecuting attorney, insofar as possible:

(A) A brief summary of the alleged facts of the

charge;

(B) Information concerning other known

pending or potential charges;

(C) A summary of any known criminal record;

(D) Any other facts deemed material to the

issue of pretrial release.

(3) Any ruling of the court at a preliminary

hearing or appearance.

[Emphasis added.]

Many Washington prosecuting attorneys in other counties

file certifications of probable cause that contain the information

required by the Thurston County and King County local rules

because of the myriad uses courts make of the certifications of

probable cause throughout the pre-trial, trial; and appeal

portions of a criminal case. See infra at 5-7.

8 State v. Greenwood, 845 P.2d 971 (Wash. 1993); State v.

Striker, 557 P.2d 847 (Wash. 1976).

9 See generally, State v. Stewart, 922 P.2d 1356, 1360 (Wash.

1996); Greenwood, 845 P.2d at 974; Striker, 557 P.2d at 852.

10 RCW 36.27.020(6); State v. Anderson, 855 P.2d 671 (Wash.

1993); State v. Greenwood, supra.

In order to timely secure the defendant’s presence for

trial, the prosecuting attorney will often request a war-

rant of arrest.1! Consistent with this Court’s opinion in

Gerstein v. Pugh, 420 U.S. 103 (1975), such a request must

be accompanied by a certificate or statement of probable

cause to support the charge. Under Washington law, the

certificate of probable cause can consist solely of a sum-

mary of the contents of the police reports.'2

The certificate of probable cause is utilized by the

court and the prosecution for purposes other than obtain-

ing a warrant of arrest. The facts contained in the certifi-

cate of probable cause are considered in determining the

amount of bail or other conditions of pretrial release.'%

Facts contained in the certificate of probable cause are

considered in determining whether a defendant had

notice of all of the elements of an offense.’

1! Prosecutors’ attempts to satisfy the Washington speedy

trial court rule by mailing letters to the defendants that advise

them of the pending charges have had mixed success in the

Washington courts. See, e.g., State v. Marler, 911 P.2d 420 (Wash.

App.), review denied, 919 P.2d 601 (Wash. 1996); State v. Bazan,

904 P.2d 1167 (Wash. App. 1995), review denied, 919 P.2d 600

(Wash. 1996).

12 Washington Criminal Rule 2.2(a); Washington Juvenile

Court Rule 7.5(b).

13 Washington Criminal Rule 3.2(a).

14 State v. Kjorsvik, 812 P.2d 86 (Wash. 1991); State v. Garcia,

829 P.2d 241 (Wash. App.), review denied, 838 P.2d 1143 (Wash.

1992); State v. Bryant, P.2d 1121 (Wash. App.), review denied,

833 P.2d 1389 (Wash. 1992).

The information contained in the certificate of proba-

ble cause can form the factual basis for a guilty plea.’

The facts contained in the certificate of probable cause

may be considered in deciding whether a defendant is

entitled to a judgment of acquittal by reason of insanity.’©

The facts in the certificate of probable cause are

relied upon to establish whether a spouse is competent to

testify against a defendant without the defendant's per-

mission.'7 Information in a certificate of probable cause

can establish whether a prior conviction is admissible for

impeachment purposes under Washington Evidence Rule

609.18 The material in a certificate of probable cause can

be utilized by the court in determining a proper sen-

tence.!9

Facts contained in a certificate of probable cause can

provide the background facts for Washington’s appellate

courts.?° Information in a certificate of probable cause has

15 See, e.g., State v. Saas, 820 P.2d 505 (Wash. 1991); State v.

Arnold, 914 P.2d 762, 765 (Wash. App.) (“The judge stated

positively that he always reads and considers those certificates,

and that he did so this time [when accepting a guilty plea]”),

review denied, 925 P.2d 989 (Wash. 1996).

16 State v. Autrey, 794 P.2d 81 (Wash. App.), review denied,

802 P.2d 127 (Wash. 1990).

‘7 State v. Thornton, 835 P.2d 216 (Wash. 1992).

18 See, e.g., State v. Schroeder, 834 P.2d 105 (Wash. App.

1992).

19 State v. Overvold, 825 P.2d 729 (Wash. App. 1992); State v.

Cooper, 816 P.2d 734 (Wash. App. 1991); State v. Tindal, 748 P.2d

695 (Wash. App. 1988).

20 See, e.g., State v. Herzog, 771 P.2d 739 (Wash. 1989); State v.

Becker, 801 P.2d 1015 (Wash. App. 1990).

been utilized by the Washington Supreme Court to deter-

mine which portion of an obscenity statute applied to a

particular case.?!

The Ninth Circuit's opinion in Fletcher v. Kalina, 93 F.3d

653 (9th Cir. 1996), cert. granted, U.S. __, 117 S. Ct. 1079

(1997), has stripped prosecutors of their absolute immu-

nity for engaging in routine procedures under Washing-

ton law for initiating and pursuing criminal prosecutions.

The Ninth Circuit’s opinion, if left intact, will severely

impact prosecutors’ ability to vigorously and fearlessly

perform their duty. The Ninth Circuit’s ruling diverts

scarce prosecutorial resources from the enforcement of

criminal laws to the defense of civil lawsuits.

«

ARGUMENT

Public prosecutors must administer their offices with

courage and independence. Both of these qualities are

impeded when the prosecutor is made subject to suit by

those whom s/he accuses and fails to convict. Imbler v.

Pachtman, 424 U.S. 409, 423-24 (1976), quoting Pearson v.

Reed, 44 P.2d 592, 597 (Cal. App. 1935). Accordingly, this

Court has provided prosecutors with absolute immunity

under § 1983 law suits for actions intimately associated

with the judicial phase of the criminal process. Imbler, 424

U.S. at 430.

The Ninth Circuit ignores the teachings of Imbler in

its decision in Fletcher v. Kalina, supra. The Ninth Circuit,

s

21 State v. Reece, 757 P.2d 947 (Wash. 1988), cert. denied, 493

U.S. 812 (1989).

focusing on the issuance of the arrest warrant, instead of

the purpose for the warrant and the warrant’s relation-

ship to the charging function, determined that prosecu-

tors are only entitled to qualified immunity for any errors

contained in the certificate of probable cause.7? Other

Circuits, which have focused on the purpose of a post-

charging arrest warrant, have had little difficulty in find-

ing that absolute immunity should be extended to prose-

cutors who request arrest warrants.”°

The Ninth Circuit decision in Fletcher v. Kalina,

assumes the sole purpose of the certificate of probable

cause is to secure a warrant of arrest. Such is not the case.

In Washington, the certificate of probable cause is inti-

mately associated with the judicial process in other ways,

as well.

Generally, the certificate of probable cause is the only

document in the court file that outlines in detail the facts

in every criminal prosecution. The certificate of probable

cause is utilized by the courts during the entire judicial

process, beginning with the filing of an information,

_ 2 Fletcher v. Kalina, 93 F.3d at 655.

23 See Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997); Lerwill v.

Joslin, 712 F.2d 435 (10th Cir. 1983); Pena v. Mattox, 84 F.3d 894,

896 (7th Cir. 1996); Pinaud v. Suffolk, 52 F.3d 1139, 1150 (2d Cir.

1995); Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir. 1987); Joseph

v. Patterson, 795 F.2d 549 (6th Cir. 1986), cert. denied, 481 U.S.

1023 (1987); cf. Schrob v. Catterson, 948 F.2d 1402 (3rd Cir. 1991)

(prosecuting attorney entitled to absolute immunity for a

seizure warrant in a civil case); Erlich > **"icac, 910 F.2d 1220

(4th Cir. 1990) (prosecuting attorney entitled to absolute

immunity for a seizure warrant in a civil case).

through sentencing and appeal. As such, the certificate of

probable cause is prepared by the prosecutor in his or her

role as an advocate and is within the continuum of initiat-

ing and presenting a criminal case. Prosecutors must

enjoy absolute immunity for drafting, signing, and filing

the certificates. By likening a warrant secured by a police

officer to a prosecutor’s certificate of probable cause, the

Ninth Circuit erred.

The act of obtaining an arrest warrant after or in

conjunction with the filing of the information is not an

investigative function. The prosecutor, by filing the

motion for warrant of arrest, is not seeking to obtain

more information before deciding that the case should be

prosecuted. Rather, the act of preparing a certificate of

probable cause and the act of obtaining an arrest warrant

in conjunction with the filing of a criminal information is

functionally part of the initiation of a criminal proceed-

ing. As the Tenth Circuit has stated:

[W]e think that a prosecutor’s seeking an arrest

warrant is too integral a part of his decision to

file charges to fall outside the scope of Imbler.

The purpose of an arrest warrant is to

ensure that the defendant is available for trial

and, if found guilty, for punishment. Without

the presence of the accused, the initiation of a

10

prosecution would be futile.[*] Thus, a prosecu-

tor’s seeking a warrant for the arrest of a defen-

dant against whom he has filed charges is part

of his “initiation of a prosecution” under Imbler.

Roberts v. Kling, 104 F.3d 316, 320 (10th Cir. 1997), citing

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983).

While absolute immunity defeats a suit at the outset,

so long as the official’s actions were within the scope of

the immunity, the fate of prosecutors with qualified

immunity depends upon whether the government offi-

cials performing the discretionary function violated a

clearly established statutory or constitutional right of

which a reasonable person would have known.” A pros-

ecutor who merely enjoys qualified immunity must

answer in court each time a person charges him or her

with wrongdoing. This diverts the prosecutor’s energy

and attention from the pressing duty of enforcing the

criminal laws.26 Moreover, as this Court noted in Imbler,

suits that survive the pleadings would pose substantial

danger of liability even to the honest prosecutor:

It is fair to say, we think, that the honest pros-

ecutor would face greater difficulty in meeting

the standards of qualified immunity than other

casas of chueainalive ii. Frequently

acting under serious constraints of time and

4 This t is particularly true in Washington as the

vedieatn eemee Court has inter~reted the Washington

Rules as absolutely prohibiting a trial from

clean he dofendaos to pecsemt. State ©. jailane, 878 P.2d 453

(Wash. 1994); State v. Hammond, 854 P.2d 637 (Wash. 1993).

25 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

26 Imbler, 424 U.S. at 424.

11

even information, a prosecutor inevitably makes

many decisions that could engender colorable

claims of constitutional deprivation. Defending

these decisions, often years after they were

made, could impose unique and intolerable bur-

dens upon a prosecutor responsible annually for

hundreds of indictments and trials.

Imbler, 424 U.S. at 425-26.

The Ninth Circuit’s opinion has created great uncer-

tainty about how prosecutors can balance their potential

civil liability with strict and fair law enforcement. Wash-

ington prosecutors generally lack the resources for con-

ducting their own investigations. They determine

whether to file charges on the basis of investigations

conducted by law enforcement agencies. The Ninth Cir-

cuit’s opinion casts the legitimacy of this procedure into

doubt. It suggests that prosecutors will be liable if they

should have known that the facts reported by police are

false. This requires them to conduct investigations of

some indeterminate scope.

The Ninth Circuit’s opinion has created great uncer-

tainty about how prosecutors can balance their potential

civil liability with their obligations to provide the court

with summaries of the alleged facts of the charges under

various local court rules or in connection with requests

for conditions of release or arrest warrants. Following the

Ninth Circuit opinion in Fletcher v. Kalina, prosecutors

wonder if they must now submit every police report and

witness statement to the court in support of the charge in

order to avoid a later lawsuit for the omission of an

alleged material fact. Such a practice would have a dra-

matic impact upon courts, as judges must pore over

12

copious documents to seek out those facts that might

support the filed charges. This practice could also impede

the investigation and prosecution of related crimes or co-

participants by prematurely releasing facts to the commu-

nity at large. The alternative of having investigative

police officers personally sign affidavits or declarations

once a prosecutor determines that probable cause exists

would only delay the initiation of charges and would

interfere with the investigation of other crimes by unnec-

essarily removing officers from the streets.?”

Following the Ninth Circuit opinion in Fletcher v.

Kalina, prosecutors now wonder if a decision to rely upon

police officers’ reports in preparation of certificates of

probable cause instead of personally re-interviewing wit-

nesses will engender liability for failure to investigate.

Prosecutors wonder if a decision to rely upon prosecutor

prepared affidavits that summarize the evidence in sup-

port of a request for a post-charging warrant of arrest

instead of requiring the complainant and other witnesses

to appear personally before the judge for questioning will

engender liability for omitting a fact that might later

prove exculpatory.

27 Washington law requires a police report to be sworn

DM cap may open “pyc medin peut. ge tga

ired driver’s refusal to submit to a breath or blood test to

determine the alcohol content of the impaired driver’s breath or

blood, see RCW 46.20.308(6), or when the police report are

into a criminal citation or notice of civil traffic

infraction, see Wash. Crim. Rule for Courts of Limited

Jurisdiction 2.1(b)(5); RCW 46.63.090. None of these documents

are used in the prosecution of felony charges.

13

Finally, prosecutors wonder whether resurrection of

the grand jury system is the only way to avoid suits for

damages from a defendant who resents being arrested to

answer a charged crime.”* Resurrection of the grand jury

would, as noted by a recent legislative study, carry sub-

stantial cost?? and would dramatically slow the process-

ing of felony cases.

+

CONCLUSION

This Court should reverse the Ninth Circuit’s deci-

sion in Fletcher v. Kalina, and provide Washington's prose-

cutors with the absolute immunity necessary for them to

“[pjrosecute all criminal . . . actions in which the state-

. may be a party .. . “* and to “[ijnstitute and

prosecute proceedings before magistrates for the arrest of

28 The Federal Courts appear to agree that prosecutors are

immune from § 1983 liability for their conduct before a

jury. See, e.g., Hill v. City of New York, 45 F.3d 653, 661 (2nd Cir.

1995); Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994), cert

denied, __ U.S. __, 115 S. Ct. 740 (1995).

29 See Washington Senate Staff Memorandum, Grand Juries

(May 15, 1996). A copy of the memorandum, minus

attachments, is contained in appendix A.

3° RCW 36.27.020(4).

14

persons charged with or reasonably suspected of felo-

nies”! without apprehe.:sion of personal consequences.

Respectfully submitted this 23rd day of April, 1997.

Respectfully submitted,

Russet D. Hauce

Prosecuting Attorney

PaMELA BetH LOcINsKy

Senior Deputy Prosecuting Attorney

Counsel for Amicus Curiae

31 RCW 36.27.020(6).

APPENDIX 1

(LOGO)

219 John A. Cherberg Building

P.O. Box 40475

Olympia, WA 98504-0475 Senator Adam Smith

(360) 786-7462 Chair

Washington State Senate

Law and Justice Committee

MEMORANDUM

Date: May 15, 1996

From: Cynthia Runger, staff counsel

To: Senator Roach

Subject: Grand Juries

You requested the following information on grand

juries:

1) Are grand juries established by the constitution in

this state? 2) How often have they been summoned? 3)

How assessable are grand juries to the general public? 4)

How much do grand juries cost? 5) How have grand

juries been used in this state? and 6) How do grand juries

work in other states. Below are responses to your

inquiries.

ARE GRAND JURIES ESTABLISHED BY THE CON-

STITUTION IN THIS STATE?

Yes. The Constitution of the State of Washington

authorizes offenses to be prosecuted either by grand jury

App. 2

indictment or by information (see Washington State Con-

stitution Article 1 § 25 and Article 1 § 26 (copies

attached)).

HOW OFTEN HAVE GRAND JURIES BEEN USED IN

THIS STATE?

I have inquired at several county prosecutors offices,

the Office of the Administrators for the Courts, and other

legal organizations. I have not been able to obtain a

specific quantitative response, however, I have been told

that grand juries have not been used often in this state. It

appears that the general consensus among prosecutors is

that: 1) grand juries are time consuming, costly, and

require additional personnel that many offices do not

have; 2) they add an unnecessary layer to the already

bogged-down court system; and 3) finding jurors for

grand juries would be an unduly burdensome task since

counties already have difficulty getting jurors to respond

to short jury terms.

HOW ASSESSABLE ARE GRAND JURIES TO THE

GENERAL PUBLIC IN THIS STATE?

The statutory provision governing grand juries is set

forth in RCW 10.27.030. In Washington grand juries may

be summoned by a majority of a county’s superior court

judges if the public interest so demands. The court may

summon a grand jury on it’s own if there is sufficient

evidence of criminal activity or corruption or upon a

petition to the court by a public attorney. There is no

mechanism for direct public access to the court for sum-

moning a grand jury. Conceivably, a citizen could provide

App. 3

a court with sufficient evidence of criminal activity or

corruption, thereby convincing a court that the public

interest so demands that a grand jury be summoned, but

there is no explicit statutory authority for this type of

action. Nebraska and Oklahoma are two states that allow

qualified electors to petition the court for a grand jury

(see attached chart entitled, “A Comparison Chart of

Grand Juries in 10 States”). _

HOW MUCH DO GRAND JURIES COST?

This answer is difficult to ascertain in definitive

quantitative terms because costs of grand juries vary with

each case. Numerous factors must be considered in deter-

mining the cost of a grand jury. By statute a grand jury

consists of twelve persons who are authorized to sit a

term of no more than 60 days. A more complex case may

have a considerable cost because of factors such as

lengthier investigations, court costs and attorneys fees.

HOW HAVE GRAND JURIES BEEN USED IN THIS

STATE?

Below are examples of grand jury cases in this state.

State v. Ingeles (1940). A grand jury was summoned to

investigate accounting matters for funds contributed

toward the political campaign of a gubernatorial candi-

date in 1936.

State v. Bell (1962). A grand jury was impaneled August

25, 1958, and proceeded to investigate certain alleged

criminal activities arising in connection with the con-

struction of the Priest Rapids Dam on the Columbia River

=_

App. 4

by Public Utility District No. 2 of Grant County (PUD).

There had been rumors of substantial gratuities and pay-

ments of money made by the prime contractor to officers

of the PUD.

State v. Twitchell (1963). In January 1960, a grand jury

convened in Snohomish County to investigate a

Snohomish County Sheriff who allegedly wilfully

neglected his duty in that he knowingly, without making

a complaint and without making an arrest, permitted the

keeping of a house of prostitution and the practice of

prostitution within the county.

State v. Robinson (1973). A King County grand jury was

convened to investigate a Seattle police officer for

allegedly soliciting and receiving bribes.

State v. Carroll (1973). In 1971 a grand jury was convened

in King County for the purpose of investigating possible

bribery and corruption among police and public officials.

State v. Sponburgh (1974). In 1971, a King County grand

jury was convene to investigate members of the Washing-

ton State Liquor Control Board in connection with liquor

administered by the liquor board.

State v. Torgenson (1978). A grand jury was convened to

investigate whether a county commissioner engaged in

conspiring with a supervisor of a county road district and

his assistant to use county labor and materials for his

own benefit and failing to investigate and act to protect

government assets even after receiving a report that the

same road supervisor and his assistant had stolen county

property.

App. 5

HOW DO GRAND JURIES WORK IN OTHER STATES?

Please see attached chart entitled, “A Comparison

Chart of Grand Juries in 10 States.”