# Amicus Curiae Brief — Kalina v. Fletcher > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0035%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 522 U.S. 118 ## Text 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.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0035%3A11. Public record. Not legal advice.