Dissent to Order Granting State Extension of Time and Denying Petitioner's Motions

No. 70507-1

SANDERS, J. (dissenting)—The issue here is whether the rules on appeal should be applied to the state as well as private parties. Apparently the majority thinks not. I'm unpersuaded.

RAP 16.9, entitled "Personal Restraint Petition—Response to Petition," provides:

(Emphasis added). See also RAP 16.10(b) (Respondent must file an answering brief within the time the response must be filed.) The rule is imperative. It requires the state to respond or, alternatively, to show good cause why time should be extended.

Mutch filed a Petition for Writ of Habeas Corpus on December 22, 2000. The same day the Clerk sent a letter to the prosecutor informing her the filing would be treated as a Personal Restraint Petition (PRP). The prosecutor then had 30 days to respond pursuant to RAP 16.9, i.e., until January 21. Clerk's Letter (12/22/00). However, on January 26, thirty five days after the PRP was filed, the Clerk sua sponte sent another letter to the prosecutor informing her she had failed to respond within 30 days as directed. But, rather than taking appropriate action, and without explanation, the Clerk extended the prosecutor's filing deadline an additional 17 days to February 12, 2001, stating "Unless a response is served and filed as directed, counsel for the Respondent should expect that a substantial monetary sanction will be imposed pursuant to RAP 18.9." Clerk's Letter (1/26/01). On February 1, 2001 the Clerk sent yet another letter gratuitously granting the prosecutor another extension of eleven days to respond to the PRP. This moved the deadline back to February 23.

After three letters from the Clerk, and 28 days of unjustified delay, and the threat of sanctions pursuant to RAP 18.9, the state belatedly filed its response brief on February 27—four days after the final deadline given by the Clerk. Only then did the prosecutor file an after-the-fact motion for extension of time wherein she claimed she had the flu for the previous 10 days and had been unable to work on the case. That motion provided a colorable excuse for the delay between February 17 and 27, but presented no basis to excuse prior delays.

Meanwhile, Mutch filed a Motion to Accept as Verity on February 1, 2001 claiming the prosecutor had defaulted on her duty to file a timely response to his PRP absent even a request to extend the response time. The Clerk then sua sponte granted the second extension notwithstanding Mutch's argument. Mutch now moves this court to modify the Clerk's rulings which granted a total extension of 28 days for the prosecutor to respond to the PRP absent any facial justification, good or not.

The plain language of RAP 16.9 requires the state to file a response. According to the rule, if the state wants its response considered it must file it within 30 days or, within that same timeframe, file a motion for extension of time. Here the state did neither. Accordingly by the plain language of the rule its belated motion for extension of time should be denied and its response stricken. Sickness might be a good reason for the last delay but is no excuse for the earlier ones.

It might be argued we should not relieve the state of its required burden to provide a response under RAP 16.9 by thereby placing an added burden on the Commissioner. In fact, prosecutors may welcome such a ruling, as many may prefer simply paying sanctions to actually filing a brief—seeing the sanctions as just "the cost of doing business." However, this is an issue which should be addressed through stiffer sanctions, not de facto repeal of those rules inconvenient to the government. At some point the "cost of doing business" can and should become burdensome enough to force the state to comply with its obligations. If the state fails to timely file a response the defendant should get the benefit of having his case considered on the merits without a state's brief. We are to oversee an adversary system, not run interference for recalcitrant parties.

Therefore Mutch's motion to modify should have been granted, with sanctions imposed against the Whatcom County Prosecutor pursuant to RAP 18.9 for its failure to comply with RAP 16.9 despite repeated (unwarranted) extensions of time accompanied by the Clerk's empty threats of sanctions. I would not allow the state to profit from its own unmitigated violation of the rule. These rules must be applied to all parties alike. It is incomprehensible that this court refuses to apply the rules to government parties.

I dissent.