In re Citizen Complaint by Stout v. Felix

• Court: Washington Supreme Court
• Decided: August 26, 2021
• Docket: 98613-4
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON AUGUST 26, 2021 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON AUGUST 26, 2021 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) No. 98613-4 In re Citizen Complaint by ) ) EN BANC THOMAS W. STOUT ) Petitioner ) v. ) Filed:August 26, 2021 ) GEENE D. FELIX ) Respondent. ) ______________________________ )

MONTOYA-LEWIS, J.—This case asks us to decide whether a citizen’s

affidavit is sufficient to initiate criminal proceedings under the citizen complaint

rule, CrRLJ 2.1(c). Under the citizen complaint rule, “[a]ny person” may initiate

criminal proceedings. CrRLJ 2.1(c). To begin the process, the person must appear

before a judge to present their allegations. They may also file an affidavit, and the

judge may provide the potential defendant, the prosecuting attorney, and other

potential witnesses an opportunity to be heard. Then, the judge considers the

evidence, makes a probable cause determination, and weighs a number of factors

before authorizing the citizen to sign and file the criminal complaint. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

We hold that under CrRLJ 2.1, criminal proceedings are initiated by the filing

of a criminal complaint, and an affidavit under CrRLJ 2.1(c) is only part of the

citizen’s request for the court’s approval to file the complaint. Here, the criminal

complaint was not filed before the expiration of the statute of limitations. Therefore,

we affirm the district court’s dismissal of the citizen complaint as untimely.

I. FACTS AND PROCEDURAL HISTORY

Geene Felix is a Department of Social and Health Services 1 social worker who

was involved in child welfare matters regarding Thomas Stout’s two children. On

October 4, 2016, Felix signed two dependency petitions under penalty of perjury,

alleging that Stout’s children were dependent. Stout disputed Felix’s factual account

in the dependency petitions. He alleged that Felix committed the crime of false

swearing when she made certain statements in the petitions. The crime of false

swearing is a gross misdemeanor with a two-year statute of limitations. RCW

9A.72.040(2); RCW 9A.04.080(1)(j).

On October 3, 2018—one day short of two years after Felix filed the

dependency petitions—Stout filed an affidavit of complaining witness in Mason

County District Court, seeking to institute a citizen complaint against Felix. The

1 At the time, child welfare cases were handled by the Department of Social and Health Services. The agency is now part of the Department of Children, Youth, and Families. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

court issued a summons notice to Felix, notified Mason County Prosecutor Michael

Dorcy, and set a probable cause hearing for two weeks later.

The probable cause hearing began on October 19, 2018. The court noted that

the statute of limitations for the crime of false swearing was two years and that the

limitations period had passed. The court requested briefing from the parties

regarding the timeliness of the citizen complaint as well as whether there was

probable cause to support the complaint. It continued the matter to December 14,

2018.

At the December hearing, the court first considered the timeliness issue. Felix

argued that a criminal action can be commenced only by the filing of an indictment

or complaint, which must be done within the statute of limitations. Stout argued that

an affidavit in support of a citizen complaint was an exception to the complaint

requirement, the affidavit was sufficient to initiate criminal proceedings, and he

timely filed it within the statute of limitations. Dorcy did not directly address the

statute of limitations issue, but he challenged the merits of Stout’s citizen complaint

and the constitutionality of the citizen complaint rule. The court agreed with Felix

and ruled that “[a] criminal action is commenced by filing a complaint.” Clerk’s

Papers (CP) at 3. Therefore, because Stout did not file a criminal complaint within

the two-year statute of limitations, the court dismissed his citizen complaint as

untimely. The court did not reach the merits of the case.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

Stout moved for reconsideration, and the district court denied his motion. He

appealed to the Mason County Superior Court, which affirmed the district court’s

ruling.2 He then sought review in the Court of Appeals, and the commissioner denied

discretionary review. The Court of Appeals also denied his request to modify the

commissioner’s ruling. The Supreme Court commissioner granted discretionary

review.

II. ANALYSIS

Interpretation of a court rule is a question of law that we review de novo. State

v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861 (2012). We apply the principles of

statutory construction, beginning with the plain meaning of the rule. Id.; Dep’t of

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-12, 43 P.3d 4 (2002). The plain

language of the rule is not read in isolation but “in context, considering related

provisions, and in light of the statutory or rule-making scheme as a whole.” State v.

Stump, 185 Wn.2d 454, 460, 374 P.3d 89 (2016) (citing State v. Conover, 183 Wn.2d

706, 711, 355 P.3d 1093 (2015)).

The parties dispute whether a citizen’s affidavit initiates criminal proceedings

under the citizen complaint rule. The parties also dispute the constitutionality of the

citizen complaint rule. We will not reach a constitutional issue “unless absolutely

2 The superior court also granted Felix’s motion to change the case caption from Mason County, State of Washington v. Geene D. Felix to In re Citizen Complaint by Thomas W. Stout v. Geene D. Felix. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

necessary to the determination of the case.” State v. Hall, 95 Wn.2d 536, 539, 627

P.2d 101 (1981). Therefore, we first address the statute of limitations issue.

In district court, criminal proceedings are governed by the Criminal Rules for

Courts of Limited Jurisdiction. CrRLJ 1.1. There are three ways to initiate criminal

proceedings in district court; two are familiar and one—the citizen complaint rule—

has been used seemingly rarely.

First, CrRLJ 2.1(a)(1) states that “[e]xcept as otherwise provided in this rule,

all criminal proceedings shall be initiated by a complaint.” The rule requires that the

complaint contain specific information, including the defendant’s identifying

information, a statement of facts, and the particular law the defendant is alleged to

have violated; the complaint also must be signed by the appropriate prosecuting

authority. CrRLJ 2.1(a)(2), (3). If the complaint fails to cite to the correct law, it may

be dismissed if it prejudiced the defendant. CrRLJ 2.1(a)(2) (“Error in the citation

or its omission shall not be ground for dismissal of the complaint or for reversal of

a conviction if the error or omission did not mislead the defendant to his or her

prejudice.”). The original complaint must be filed with the clerk of the court. CrRLJ

2.1(d)(1). Once the complaint is filed, the court may direct the clerk to issue an arrest

warrant or a summons to be served on the defendant. See generally CrRLJ 2.2.

Second, criminal proceedings can be initiated by a peace officer serving a

citation and notice on the defendant. CrRLJ 2.1(b) (the “peace officer exception”).

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

This is an exception to the complaint requirement, and the citation and notice is

treated the same as a criminal complaint. CrRLJ 2.1(b)(5) (“[T]he citation and notice

shall be deemed a lawful complaint for the purpose of initiating prosecution of the

offense charged therein.”). The peace officer exception also requires that the citation

be on a specific form and that the citation and notice contains specific information,

including the defendant’s identifying information, the charged offense, and when the

defendant must appear in court. CrRLJ 2.1(b)(1), (3). Similar to the requirements for

a complaint, the citation and notice must also be signed by the citing officer and the

original must also be filed with the clerk of the court. CrRLJ 2.1(b)(5), (d)(1).

Finally, CrRLJ 2.1(c) provides a third way to begin a criminal case—the

citizen complaint rule. Under this rule, a citizen may appear in district court and seek

to initiate criminal proceedings:

Any person wishing to institute a criminal action alleging a misdemeanor or gross misdemeanor shall appear before a judge empowered to commit persons charged with offenses against the State, other than a judge pro tem. The judge may require the appearance to be made on the record, and under oath. The judge may consider any allegations on the basis of an affidavit sworn to before the judge. The court may also grant an opportunity at said hearing for evidence to be given by the county prosecuting attorney or deputy, the potential defendant or attorney of record, law enforcement or other potential witnesses. The court may also require the presence of other potential witnesses.

CrRLJ 2.1(c). Based on the evidence presented, the district court makes a probable

cause determination. Id. The rule also includes a list of seven factors the court may

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

consider in addition to probable cause, as well as a sample affidavit of complaining

witness form. Id. After the court finds probable cause and weighs the factors, then

“the judge may authorize the citizen to sign and file a complaint in the form

prescribed in CrRLJ 2.1(a).” Id.

Unlike the peace officer exception, the citizen complaint rule does not

expressly state whether a citizen’s affidavit is an exception to the complaint

requirement; but the plain meaning of the citizen complaint rule and the context of

the entire rule CrRLJ 2.1 support the conclusion that it is not. McEnroe, 174 Wn.2d

at 800; Stump, 185 Wn.2d at 460. The form and function of an affidavit is different

from a complaint or citation and notice. In contrast with the requirements for a

complaint or citation and notice, a citizen’s affidavit is not required to take any

particular form or contain any specific information. Compare CrRLJ 2.1(a)(2), (3)

(using the word “shall”), and CrRLJ 2.1(b)(1), (3), (4) (using the word “shall”), with

CrRLJ 2.1(c) (“[t]he affidavit may be in substantially the [same] form [as the

sample]” (emphasis added)). The citizen’s affidavit is not required to comply with

the sample affidavit contained in the rule, nor is the affidavit required to include the

potential defendant’s information or the specific alleged offense. CrRLJ 2.1(c).

Also, a citizen’s affidavit cannot initiate criminal proceedings because it does

not provide any notice to the potential defendant, who has a due process right to

notice of the accusations against them. State v. Siers, 174 Wn.2d 269, 277, 274 P.3d

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

358 (2012); U.S. CONST. amends. V, VI, XIV; WASH. CONST. art. I, §§ 3, 22. “These

rules shall not be construed to affect or derogate from the constitutional rights of any

defendant.” CrRLJ 1.1. When criminal proceedings are initiated by complaint or

citation and notice, the documents must cite the specific crime and the defendant

must receive proper notice. Yet, when a citizen files an affidavit, the citizen

complaint rule does not require that the affidavit include the alleged crime, and it

contains no notice requirement prior to the filing of the criminal complaint. CrRLJ

2.1(c) (“The court may also grant an opportunity at said hearing for evidence to be

given by . . . the potential defendant.” (emphasis added)).

Further, under the plain language of the citizen complaint rule, the affidavit is

not required at all—the citizen may file an affidavit, but the court is not required to

consider it. Id. (“The judge may consider any allegations on the basis of an affidavit

sworn to before the judge.” (emphasis added)). The only requirement of the citizen

is to appear before the judge. Id. (“Any person wishing to institute a criminal action

. . . shall appear before a judge.” (emphasis added)). A citizen’s affidavit is optional.

It can take any form and does not notify the potential defendant about the filing of

any proceedings against them. Thus, the affidavit is part of a citizen’s request to file

a complaint, and it does not initiate criminal proceedings.

Under the citizen complaint rule, criminal proceedings are initiated by the

filing of a complaint “in the form prescribed in CrRLJ 2.1(a).” Id. The rule delineates

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

the process that enables a citizen to request permission from the court to file a

criminal complaint. The only requirement is that the citizen appear before a judge.

Only after the judge considers all the preliminary evidence provided, finds probable

cause, and weighs the delineated factors may the court authorize the citizen to sign

and file a criminal complaint and initiate criminal proceedings. Id. Then, the

complaint that the citizen signs must conform to the complaint requirements in

CrRLJ 2.1(a). Id. It is incumbent on any citizen who seeks to file such a complaint

to ensure that they come before a judge to move their case forward before any statute

of limitations passes. If, as in this case, the complaining citizen fails to timely act to

prosecute their matter and the statute of limitations passes, the citizen complaint

fails.

The crime of false swearing is a gross misdemeanor, and a criminal

prosecution must be initiated within two years of the alleged crime. RCW

9A.72.040(2); RCW 9A.04.080(1)(j). No criminal complaint was filed within two

years of the alleged crime. Therefore, the district court correctly dismissed Stout’s

citizen complaint as untimely. We do not reach the constitutional issue.

III. CONCLUSION

Under CrRLJ 2.1, criminal proceedings are initiated by the filing of a criminal

complaint. The citizen complaint rule is not an exception to the complaint

requirement, and a citizen’s affidavit does not initiate criminal proceedings. An

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Thomas Stout v. Geene Felix No. 98613-4

affidavit is evidence that the citizen may present to the court as part of their request

for permission to sign and file a criminal complaint, but it is not required. Therefore,

we affirm the district court’s dismissal of Stout’s citizen complaint as untimely.

______________________________

WE CONCUR:

___________________________ ______________________________

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

No. 98613-4

YU, J. (concurring in result) — The district court reached the right result by

dismissing this case without any consideration of the merits. And the majority

correctly affirms the dismissal. Nevertheless, I cannot join the majority because it

assumes that Thomas Stout’s private prosecution of Geene Felix could have

proceeded without violating the separation of powers doctrine if only it were

timely filed. The majority never questions this assumption, citing our general

practice of declining to reach constitutional issues. Majority at 4-5 (quoting State

v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981)). This form of constitutional

avoidance is the best and wisest course of action in the vast majority of cases.1 But

in this case, to avoid the constitutional question is to avoid the heart of the matter.

1 As a general term, “constitutional avoidance” may refer to any of a “series of rules” that courts use to “avoid[ ] passing upon a large part of all the constitutional questions” that are presented by the parties. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). The specific rule the majority applies in this case is sometimes called “procedural” constitutional avoidance, in which courts remove constitutional issues from their agenda by considering nonconstitutional issues first. Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945, 1948-49 (1997); see Ashwander, 297 U.S. at 347 (Brandeis, J., concurring). If a nonconstitutional issue is dispositive of the case, then the court can end its analysis there, thus avoiding any consideration of constitutional issues. See majority at 9.

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

No elected prosecuting attorney has ever charged Felix with any crime

relating to Stout’s allegations. No grand jury has charged her, either. No one has.

Stout failed to timely file his would-be “charges,” and every court to consider his

arguments for disregarding the statute of limitations (and Felix’s constitutional

rights) has correctly rejected them. Yet Felix has been forced to defend herself

against Stout’s attempted “prosecution” in three different courts for nearly three

years. This bizarre circumstance was brought about by the “citizen complaint

rule,” an easily abused, judge-made rule that does nothing to advance justice.

CrRLJ 2.1(c).

The citizen complaint rule is not merely bad policy. It also derogates our

constitutional vision of separation of powers among three branches of government.

Within this constitutional framework, a judicial officer cannot determine in the

first instance whether criminal charges should be filed against an individual

without usurping the authority of the executive branch. But that is precisely what

the plain language of the citizen complaint rule requires judges to do. Therefore,

on its face, the citizen complaint rule violates the separations of powers doctrine,

“‘one of the cardinal and fundamental principles of the American constitutional

system’” that “forms the basis of our state government.” State v. Rice, 174 Wn.2d

884, 900, 279 P.3d 849 (2012) (quoting Wash. State Motorcycle Dealers Ass’n v.

State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988)). In failing to acknowledge this

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

constitutional violation, the majority signals its view that a citizen complaint is an

appropriate means of seeking public redress through criminal prosecution for a

private grievance. I do not share this view.

The citizen complaint rule regularly subjects targeted individuals to putative

criminal actions based on fatally flawed citizen affidavits that are legally barred,

factually baseless, or both. Before these actions are inevitably dismissed, the

would-be defendants, third parties, and the general public are forced to incur

substantial, and in some cases irreparable, harm. This is an unjustifiable price to

pay for a facially unconstitutional, judge-made rule.

I would hold that reaching the constitutional question in this case is

necessary and that the answer to that question is clear. The citizen complaint rule

is unconstitutional on its face. Therefore, the only appropriate outcome in this and

every citizen complaint case is summary dismissal with prejudice. I thus

respectfully concur only in the result.

ANALYSIS

A. The citizen complaint rule is an unconstitutional judicial usurpation of executive authority

In every criminal case, “[e]ach branch of government plays a distinct role.”

Id. at 889. The Washington Constitution provides that the executive branch is

represented by the prosecuting attorney, “a locally elected executive officer who

has inherent authority to decide which available charges to file, if any, against a

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

criminal defendant.” Id. at 900; see WASH. CONST. art. XI, § 5. Thus, “[t]he

charging discretion of prosecuting attorneys is an integral part of the constitutional

checks and balances that make up our criminal justice system.” Rice, 174 Wn.2d

at 889-90. Yet on its face, the citizen complaint rule permits an entire criminal

case to proceed from investigation to charging to conviction and sentencing with

no participation whatsoever from any member of the executive branch. CrRLJ

2.1(c). The separation of powers violation seems so obvious as to be beyond

debate.

However, criminal prosecutions initiated by private citizens undoubtedly

have a long history in this state and throughout the country. E.g., State ex rel.

Romano v. Yakey, 43 Wash. 15, 85 P. 990 (1906). See generally John D. Bessler,

The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L.

REV. 511, 515-20 (1994). Amicus relies heavily on this history to contend that the

citizen complaint rule cannot possibly be unconstitutional because it “has been

Washington law (in various forms) from the early days of its statehood and even

before.” Corr. Amicus Curiae Br. of Adam P. Karp at 1. “Various forms” is the

key phrase.

In its historical, statutory form, the citizen complaint rule was intended to

serve as a check on executive power by reserving some portion of charging

authority to be exercised directly by the people. Regardless of the efficacy,

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

wisdom, or constitutionality of that historical system (all of which are

questionable), the modern, judge-made citizen complaint rule does not operate that

way. Instead of reserving charging authority to be exercised by the people, CrRLJ

2.1(c) transfers charging authority from the executive to the judiciary. The people

reserve nothing.

As long recognized by the district court judges who must apply the citizen

complaint rule, this arrangement “violates the separation of powers doctrine,

requiring a judge to serve as both prosecutor and judicial officer.” Letter from

Judge David A. Steiner, President, Dist. & Mun. Court Judges’ Ass’n, to Justice

Charles W. Johnson, Chair, Supreme Court Rules Comm. (Apr. 16, 2015),

https://www.courts.wa.gov/court_Rules/proposed/2014Nov/CrRLJ2.1/

Judge%20David%20A.%20Steiner.pdf. The Washington State Bar Association

agrees. Id. It is time we did the same.

1. The judge-made citizen complaint rule does not allow the people to check executive power because it reserves no authority to the people

The citizen complaint rule is often presented as an important component of

Washington’s populist history. As Stout puts it, “[w]hen a prosecutor chooses to

overlook particular crimes by particular people, CrRLJ 2.1(c) is one means by

which a citizen is allowed to bring the matter to court,” reflecting a “concern for

the place of the citizen in a constitutional republic that is designed to protect [‘]the

security of individual right and the perpetuity of free government.[’]” Reply Br. of

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Thomas Stout at 13, 16 (quoting WASH. CONST. art. I, § 32). This is a myth. The

citizen complaint rule provides, at most, the illusion of populism.

In its historical, statutory form, the citizen complaint rule appears to have

provided a significantly narrower role for the judicial officer, which was limited to

the legal determination of probable cause:

The duty of every magistrate to whom complaint is made is plain and specific:

“He shall examine on oath the complainant, and any witness provided by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any offense has been committed of which the superior court has exclusive jurisdiction, the magistrate shall issue a warrant reciting the substance of the accusation,” etc.

Romano, 43 Wash. at 19-20 (emphasis added) (quoting BAL. CODE § 6695). Thus,

if the court found a warrant could issue as a matter of law, it did not matter

whether the court thought the warrant should issue as a matter of justice; that

decision was left to the complainant. “This [was] especially true where it is made

to appear that the prosecuting attorney is resisting the application.” Id. at 19.

By contrast, the modern, judge-made citizen complaint rule provides the

complaining citizen only the right to “appear before a judge empowered to commit

persons charged with offenses against the State.” CrRLJ 2.1(c). As the majority

correctly notes, the complainant’s appearance, or any affidavit they may submit,

“does not initiate criminal proceedings.” Majority at 9. If probable cause is found,

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

it is the judge, not the complainant, who decides whether criminal charges should

be filed based on seven discretionary, nonexclusive factors:

(1) Whether an unsuccessful prosecution will subject the State to costs or damage claims under RCW 9A.16.110, or other civil proceedings;

(2) Whether the complainant has adequate recourse under laws governing small claims suits, anti-harassment petitions or other civil actions;

(3) Whether a criminal investigation is pending;

(4) Whether other criminal charges could be disrupted by allowing the citizen complaint to be filed;

(5) The availability of witnesses at trial;

(6) The criminal record of the complainant, potential defendant and potential witnesses, and whether any have been convicted of crimes of dishonesty as defined by ER 609; and

(7) Prosecution standards under RCW 9.94A.440.

CrRLJ 2.1(c); see In re Petition of Ware, 5 Wn. App. 2d 658, 677-78, 420 P.3d

1083 (2018).

Washington’s populist history is still reflected in grand jury proceedings,

which (unlike citizen complaints) are specifically contemplated by our state

constitution. WASH. CONST. art. I, § 26. But it is not reflected in the modern,

judge-made citizen complaint rule, which merely shifts charging authority from

one representative branch (the executive) to another (the judiciary).

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

2. Judicial officers cannot make the initial decision as to whether charges should be filed

Given the above understanding, it should be clear that the citizen complaint

rule blatantly violates the separation of powers doctrine by requiring a judicial

officer to exercise the charging authority that is supposed to be vested in the

executive branch. This throws off the careful balance that the coordinate branches

of government are supposed to provide in every criminal case:

Each branch of government plays a distinct role: the legislature checks prosecutors and the judiciary by defining the particular acts and circumstances that may warrant criminal punishment and the maximum sentences that may be imposed; prosecutors check the power of the legislature and the judiciary by deciding whom to charge and which available charges and special allegations to file in any given case; and the judiciary checks the legislature and prosecutors by reviewing probable cause, ensuring a fair trial, and determining the appropriate sentence if the defendant is found guilty. Additionally, the jury checks all three branches of government by deciding in any given case whether the defendant has been proved guilty beyond a reasonable doubt. Within this balanced constitutional framework, each branch must act in order for criminal punishment to be imposed, and each exercise of governmental authority may be tempered by mercy. Accordingly, the legislature cannot usurp the inherent charging discretion of prosecuting attorneys.

Rice, 174 Wn.2d at 889-90 (emphasis added). This court should not assume to

itself the power to usurp executive authority after explicitly prohibiting the

legislature from doing so.

Moreover, unlike the statute at issue in Rice, the judge-made citizen

complaint rule cannot be interpreted in a manner that renders it constitutional. See

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

id. at 899-907. A judge faced with a citizen’s affidavit has broad discretion in the

factors they consider and the ultimate decision they make, but the one thing they

must do in every case is decide whether to “authorize the citizen to sign and file a

complaint.” CrRLJ 2.1(c). That is not a judicial function; it is the exercise of

“broad charging discretion,” which “is part of the inherent authority granted to

prosecuting attorneys as executive officers under the Washington State

Constitution.” Rice, 174 Wn.2d at 904 (emphasis added).

In practice, it appears that most district court judges faced with citizen

complaints generally agree with the elected prosecutor’s decision as to whether

charges should be filed. E.g., Romano, 43 Wash. at 17-18; Ware, 5 Wn. App. 2d at

668. Thus, the unconstitutionality of requiring the judge to make that decision is

still present, but it has no practical effect on the disposition of the case. This

results in limited appellate precedent on the citizen complaint rule and provides an

excellent demonstration of how the rule in operation does nothing to advance its

supposed populist purpose. But if the judge were to disagree with the prosecutor,

it would prompt precisely the type of interbranch conflicts that the separation of

powers is supposed to mitigate.

What happens if the judge decides that charges should be filed but the

elected prosecutor, “tempered by mercy,” refuses to proceed with the case? Rice,

174 Wn.2d at 890. Stout admitted, “That is a very good question.” Wash.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Supreme Court oral argument, Stout v. Felix, No. 98613-4 (Mar. 9, 2021), at 3

min., 37 sec., video recording by TVW, Washington State’s Public Affairs

Network, http://www.tvw.org. He suggested that in such a circumstance, the

private citizen should “have the opportunity to pursue a prosecution on his own

and hire an attorney to do so.” Id. at 4 min., 16 sec.; see also Reply Br. of Thomas

Stout at 25; Corr. Amicus Curiae Br. of Adam P. Karp at 14. That is impossible.

Any licensed attorney retained by Stout would be ethically prohibited from

acting as a prosecutor due to the obvious conflict of interest that arises where an

alleged crime victim pays the legal fees of the prosecuting attorney—the attorney

is funded by someone who is personally invested in a conviction, but “[t]he

prosecutor’s duty is to seek justice, not merely convictions.” State v. Walker, 182

Wn.2d 463, 476, 341 P.3d 976 (2015). And any nonattorney would, of course, also

be prohibited from acting as a prosecutor because the “[u]nlawful practice of law is

a crime.” RCW 2.48.180(3)(a).

Moreover, the judge could not order the elected prosecutor to pursue

criminal charges because that would be an “improper and destructive exercise[ ]”

that directly “undermine[s] the operation of another branch.” In re Salary of

Juvenile Dir., 87 Wn.2d 232, 243, 552 P.2d 163 (1976). But the judge also could

not appoint an outside attorney to prosecute an ordinary criminal case “over the

objection of an able and willing prosecuting attorney.” State ex rel. Banks v.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Drummond, 187 Wn.2d 157, 161, 385 P.3d 769 (2016); 2 Ladenburg v. Campbell,

56 Wn. App. 701, 703-04, 784 P.2d 1306 (1990) (holding that district courts do not

have inherent authority to appoint special prosecutors). But see Young v. United

States ex rel. Vuitton et Fils SA, 481 U.S. 787, 795, 107 S. Ct. 2124, 95 L. Ed. 2d

740 (1987) (holding that in the specific context of a contempt action, outside

counsel may be appointed because “the initiation of contempt proceedings to

punish disobedience to court orders is a part of the judicial function”). Thus, the

citizen complaint rule purports to allow judges to authorize prosecutions without

prosecutors. That is absurd.

Conversely, if the judge rules that charges should not be filed despite the

presence of probable cause, but the elected prosecutor believes they should be filed

(before the statute of limitations has run out), what happens then? “[T]he inherent

charging discretion of prosecuting attorneys” suggests that the prosecutor must be

permitted to file criminal charges, notwithstanding the judge’s contrary ruling

based on the same allegations. Rice, 174 Wn.2d at 890. But that “allows the State

multiple bites at the apple,” which is extremely cruel to the accused person and a

2 “Willing” does not mean “[ ]willing to do as requested by Stout.” Contra Corr. Amicus Curiae Br. of Adam P. Karp at 9. It refers to a prosecutor’s “willingness to perform [their] duties as prosecuting attorney,” one of which is to exercise independent discretion in the initial charging decision. Drummond, 187 Wn.2d at 167; Rice, 174 Wn.2d at 899-907. Stout, like the rest of the public, may exercise control over the elected prosecutor by voting, but he does not have any special authority to demand that the prosecutor make particular charging decisions.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

possible violation of the constitutional prohibition against double jeopardy. State

v. Womac, 160 Wn.2d 643, 651, 160 P.3d 40 (2007); see U.S. CONST. amend. V;

WASH. CONST. art. I, § 9.3

It is thus clear that the only cases in which the citizen complaint rule has any

effect on the filing of criminal charges is when it presents a direct, interbranch

conflict with no constitutionally permissible resolution. Therefore, CrRLJ 2.1(c) is

unconstitutional on its face.

B. We should reach the constitutional question presented

If it were true, as the majority asserts, that the citizen complaint rule is

“rarely” used, then the benefits of avoiding the constitutional issue might outweigh

the costs. Majority at 5. However, while appellate precedent based on citizen

complaints is very rare, the record does not show (and I do not believe) that district

court filings based on citizen complaints are so rare that we may disregard their

harmful effects. To the contrary, there are strong indications that citizen

complaints are far more common, and cause far more damage, than published

appellate precedent suggests.

3 It is difficult to know how a court would protect the accused person from being “twice put in jeopardy for the same offense” in a citizen complaint case because courts articulating double jeopardy principles generally appear to assume that the judge did not unconstitutionally assume a prosecutorial role by making the initial charging decision. WASH. CONST. art. I, § 9; see, e.g., Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) (discussing “‘attachment of jeopardy’” principles); State v. Karpov, 195 Wn.2d 288, 293, 458 P.3d 1182 (2020) (discussing “judicial acquittals”).

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

We could prevent further damage by holding that the citizen complaint rule

is facially unconstitutional. Unfortunately, not only does the majority decline to

reach the issue in this case, but it makes doing so virtually impossible in any future

case. Given this particular context, the harms of avoiding the constitutional issue

far outweigh the benefits.

1. The principle of constitutional avoidance does not prevent us from reaching the separation of powers issue

There should be no question that we could affirm the district court’s order of

dismissal based on the separation of powers doctrine if we chose to do so. The

issue is properly before us because Felix raised it at the district court and

confirmed at oral argument that she had not abandoned it. Wash. Supreme Court

oral argument, supra, at 19 min., 49 sec. The parties and amicus have provided

extensive briefing on the issue. And we have broad authority “[i]n the

determination of causes” to reach our decisions “on the basis of issues set forth by

the parties in their briefs.” WASH. CONST. art. IV, § 2; RAP 12.1(a); see also

LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989) (“[A]n appellate

court can sustain the trial court’s judgment upon any theory established by the

pleadings and supported by the proof, even if the trial court did not consider it.”).

Yet the majority says nothing about the separation of powers doctrine,

explaining its decision as a form of constitutional avoidance: “We will not reach a

constitutional issue ‘unless absolutely necessary to the determination of the case.’”

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Majority at 4-5 (quoting Hall, 95 Wn.2d at 539). Constitutional avoidance is the

wisest course of action in the overwhelming majority of cases. Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 345-46, 56 S. Ct. 466, 80 L. Ed. 688 (1936)

(Brandeis, J., concurring).4 It is motivated by judicial “‘conscious[ness] of the

fallibility of the human judgment’” and every court’s respect for “the ‘great gravity

and delicacy’ of its function in passing upon the validity of an act of [the

legislature].” Id. at 345 (quoting 1 THOMAS M. COOLEY, A TREATISE ON

CONSTITUTIONAL LIMITATIONS 332 (8th ed. 1927); Adkins v. Children’s Hosp., 261

U.S. 525, 544, 43 S. Ct. 394, 67 L. Ed. 785 (1923)).

However, it is not always appropriate to avoid constitutional issues because

“the inexorable result is ‘constitutional stagnation’—fewer courts establishing law

at all, much less clearly doing so.” Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir.

2019) (Willett, J., concurring in part, dissenting in part) (emphasis and footnote

omitted) (quoting Aaron L. Nielson & Christopher J. Walker, The New Qualified

Immunity, 89 S. CAL. L. REV. 1, 12 (2015)), cert. denied, 141 S. Ct. 110 (2020).

Recognizing this, the United States Supreme Court has sometimes “permitted

lower courts to avoid avoidance—that is, to determine whether a [constitutional]

4 This court’s discussions of constitutional avoidance have previously relied on general legal encyclopedias that are not specific to Washington law. E.g., Ohnstad v. City of Tacoma, 64 Wn.2d 904, 907, 395 P.2d 97 (1964) (citing 16 C.J.S. Constitutional Law § 94 (1956); 11 AM. JUR. Constitutional Law § 93 (1937)); Jellum v. Normanna Lodge No. 3, 31 Wn.2d 846, 850, 199 P.2d 108 (1948) (citing 11 AM. JUR. Constitutional Law § 93 (1937)). I therefore cite federal sources as persuasive but not controlling authority on this issue.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

right exists before examining whether it was clearly established” in the context of a

qualified immunity analysis. Camreta v. Greene, 563 U.S. 692, 706, 131 S. Ct.

2020, 179 L. Ed. 2d 1118 (2011). Nothing prevents this court from giving itself

the same permission.

We should not rigidly avoid constitutional issues in those rare cases where

the harms of constitutional avoidance far outweigh its benefits. This is one such

case. Here, constitutional avoidance would do little to serve its underlying

purposes because the citizen complaint rule is a product of this court, not the

legislature. We are the sole body with authority to consider the constitutionality of

our own, judge-made court rules. We therefore have less justification for avoiding

the task. More importantly, however, declining to address the facial

unconstitutionality of the citizen complaint rule in this case will cause uniquely

negative consequences that no other entity can prevent.

2. Constitutional avoidance in this case is far more harmful than beneficial because it insulates the citizen complaint rule from constitutional scrutiny

Ordinary principles of constitutional avoidance indicate that no opinion of

this court (or the Court of Appeals) will consider the possibility that the citizen

complaint rule violates the separation of powers doctrine on its face unless

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

(1) someone is timely charged on the basis of a citizen complaint, 5 (2) the charge

results in a conviction, 6 (3) the convicted person has the resources and the fortitude

to pursue at least two levels of appellate review over a misdemeanor conviction,7

(4) there is no nonconstitutional basis on which to reverse,8 and (5) there is no

narrower constitutional basis on which to reverse.9

Such a scenario is unlikely to arise in any context, but that is intentional

because “[f]acial claims are generally disfavored.” Woods v. Seattle’s Union

Gospel Mission, 197 Wn.2d 231, 240, 481 P.3d 1060 (2021). However, in the

context of the citizen complaint rule, the ordinary rules of constitutional avoidance

do not make a decision on the merits of a facial constitutional challenge merely

unlikely—they make it effectively impossible.

At the outset, there is almost no chance that a citizen complaint affidavit will

lead to timely filed charges or a conviction. As the District and Municipal Court

5 I agree with the majority that “a citizen’s affidavit does not initiate criminal proceedings.” Majority at 9. 6 If a citizen complaint case ends in dismissal or acquittal and the complainant appeals (as happened here), then the appeal can always be dismissed because the complainant is not an “aggrieved party” and has no standing to appeal. RALJ 2.1(a); RAP 3.1; see also State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944) (“The mere fact that one may be . . . disappointed over a certain result . . . does not entitle [them] to appeal.”). 7 The first appeal from a district court is to superior court, so at least two levels of review are needed to reach this court or the Court of Appeals. RALJ 1.1, 2.3(a). 8 In general, “[w]e will not reach a constitutional issue ‘unless absolutely necessary to the determination of the case.’” Majority at 4-5 (quoting Hall, 95 Wn.2d at 539). 9 In general, we will not “‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” Woods v. Seattle’s Union Gospel Mission, 197 Wn.2d 231, 240, 481 P.3d 1060 (2021) (internal quotation marks omitted) (quoting State v. McCuistion, 174 Wn.2d 369, 389, 275 P.3d 1092 (2012)).

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Judges’ Association (DMCJA) has repeatedly pointed out, “[c]itizen complaints

are often poorly drafted and factually questionable.” 4B ELIZABETH A. TURNER,

WASHINGTON PRACTICE: RULES PRACTICE CrRLJ 2.1 drafters’ cmt. at 530 (8th ed.

2020). Therefore, “few survive a probable cause evaluation,” much less the many

steps required to secure a conviction. Id., task force cmt. at 528. However, even if

a citizen complaint does lead to a purported conviction, there will always be a basis

for reversal other than the facial unconstitutionality of the citizen complaint rule.

In most situations, there will be numerous bases for reversal that are specific

to the case. For instance, based solely on what has already been filed in the (still

ongoing) precharging stage of this case, it is clear that any conviction based on

Stout’s affidavit would be easily reversible either (1) on the statutory basis of

failure to charge within the statute of limitations or, if Stout’s affidavit is treated as

the charging document, (2) on the constitutional basis that the affidavit “does not

provide any notice to the potential defendant, who has a due process right to notice

of the accusations against them.” Majority at 7 (citing State v. Siers, 174 Wn.2d

269, 277, 274 P.3d 358 (2012); U.S. CONST. amends. V, VI, XIV; WASH. CONST.

art. I, §§ 3, 22).

However, in the implausible event of a conviction that is otherwise free of

reversible error, a reviewing court can always reverse on the narrower basis that

the citizen complaint rule is unconstitutional as applied, rather than facially. Ware,

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

5 Wn. App. 2d at 670 (superior court affirmed dismissal of citizen complaint

affidavit in part because failure to dismiss would violate separation of powers as

applied). Thus, by declining to address the facial constitutional issue in this case,

the majority in fact immunizes the citizen complaint rule from facial constitutional

challenges in all future cases.

This is anomalous. If a statute is facially unconstitutional, it may be

repealed through the legislative process, but the constitutional issue may also be

raised by a party and decided by this court. E.g., State v. Gresham, 173 Wn.2d

405, 432, 269 P.3d 207 (2012) (“RCW 10.58.090 is an unconstitutional violation

of the separation of powers doctrine because it irreconcilably conflicts with ER

404(b).”). The same is true for court rules; the rule making process is one avenue

to address constitutional violations, but litigation is another. E.g., In re Det. of

D.F.F., 172 Wn.2d 37, 42, 256 P.3d 357 (2011) (plurality opinion) (“MPR 1.3

violates article I, section 10.”). I see no good reason why the citizen complaint

rule should be uniquely invulnerable to facial constitutional challenges.

3. Constitutional avoidance in this case is far more harmful than beneficial because the harms caused by citizen complaint cases are substantial

To the extent the majority believes that citizen complaints are so rare that the

harms they cause are insignificant, I disagree. See majority at 5. While there is

sparse appellate precedent available, that does not capture the full picture of

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

attempted citizen complaints and the substantial harm they cause. For the

procedural and substantive reasons discussed above, such cases rarely advance

beyond the district court level. Therefore, district courts, rather than appellate

precedent, are the best source of information about the frequency and impact of

citizen complaint filings.

The DMCJA has consistently and repeatedly supported the repeal of the

citizen complaint rule through the rule making process for more than 30 years.

Letter from Judge Steiner, supra. The Washington State Bar Association supports

its repeal as well. Id. “The primary concern of the DMCJA is that CrRLJ 2.1(c)

violates the separation of powers doctrine.” Id. They have also raised concerns

that “[c]itizen complaints are often filed out of improper motives[,] such as

retaliation for charges filed against the citizen complainant” and “to harass law

enforcement or public officials.” 4B TURNER, supra, drafters’ cmt. at 530.

As the ones who must implement the citizen complaint rule, district court

judges are the most familiar with its operation, and their unwavering view is that

citizen complaints are harmful and unconstitutional. It is thus a mistake to treat the

minimal number of appellate opinions analyzing citizen complaints as a proxy for

the number of attempted citizen complaints filed in the district courts, and a far

greater mistake to disregard the harms caused by these unsuccessful attempts.

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Every attempted citizen complaint entails certain burdens common to all

such cases. The financial burdens alone may be significant, as scarce public

resources must be expended on the “appearance” that the complainant “shall”

make before a judge. CrRLJ 2.1(c). The elected prosecutor and law enforcement

may also be required to expend resources on a “hearing,” additional witnesses may

be permitted or “require[d]” to attend, and the rule gives the “potential defendant”

the right to an “attorney of record.”10 Id. Baseless criminal accusations further

subject the accused “‘to embarrassment, expense and ordeal and compel[ them] to

live in a continuing state of anxiety and insecurity, as well as enhanc[e] the

possibility that even though innocent[, they] may be found guilty.’” Womac, 160

Wn.2d at 651 (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct.

221, 2 L. Ed. 2d 199 (1957)).

In addition, on a more fundamental level, all citizen complaints elevate the

will of a single individual above the will of all other members of the public.

“[T]he very concept of a locally elected ‘prosecuting attorney’ includes the core

function of exercising broad charging discretion on behalf of the local

community.” Rice, 174 Wn.2d at 905. Thus, Washington voters choose who has

the authority to bring criminal charges in their counties and throughout the state by

10 In this case, the public is paying for Felix’s attorney (the Office of the Attorney General) because Stout’s allegations were based on Felix’s actions in the performance of her official duties as a state employee. Clerk’s Papers at 108; see RCW 43.10.030(3).

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

electing local prosecutors and an attorney general. Id. at 900; WASH. CONST. art.

III, § 1, art. XI, § 5; RCW 43.10.030(4). By attempting to sidestep these officials’

authority, every citizen complaint undermines “the right of the county’s voters to

choose their elected official.” Drummond, 187 Wn.2d at 183 (holding that a

county board of commissioners may not “unilaterally contract with outside counsel

over the objection of an able and willing prosecuting attorney”).

In addition to the damage caused by all such cases, every attempted private

prosecution causes harms unique to the case. Just one example from this case is

Stout’s mistitling his appeal to superior court as “State v. Felix” to make it appear

as though this were an actual criminal case, instead of the unsuccessful citizen

complaint case that it is. Clerk’s Papers (CP) at 1, 7-8, 22-24. This was an

intentional act of dishonesty rather than a simple mistake; Stout did the same thing

in district court, and the judge explicitly admonished him that the case title “is and

it should be[,] on our documents [and] also on our computer system[,] In Regards

to the Citizen’s Complaint, Petitioner Thomas Stout.” Id. at 142-43.

The superior court found that Stout’s dishonesty over something so petty as

the case title caused Felix “difficulties performing her job functions as she is

having difficulty accessing secure facilities to work with clients who are

incarcerated.” Id. at 28. Felix is an investigator with the Child Protective Services

division of the Department of Children, Youth, and Families, and she sometimes

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

needs to access secure facilities to timely complete her investigations. Id. at 22.

Therefore, her difficulties in accessing those facilities to do her job harmed not

only Felix, but Washington families and children in need of services, as well as the

general public. See id. at 29 (“The Court has considered the interests of the public

in this matter and the Department of Children, Youth, and Families.”).

On Felix’s motion, the superior court properly changed the case title to

reflect that this is not a criminal case. Id. at 28-29. But in child welfare

investigations, where time is always essential, the harm caused by the delays in

Felix’s investigations can never be fully known, much less undone. And Felix

herself will suffer detrimental impacts well into the future (potentially for the rest

of her life) because, although it was wrongfully filed in bad faith, Stout’s mistitled

appeal is now a court record that is presumptively open to the public. Hundtofte v.

Encarnación, 181 Wn.2d 1, 6, 330 P.3d 168 (2014) (plurality opinion).

Felix has already explained that having this apparent criminal case on her

record could cause difficulties if she “were to need a background check for

employment” because “the way this is filed would cause a potential employer to

believe that [she has] a pending criminal charge.” CP at 24. However, to get the

record redacted or sealed, Felix must bring another motion in which she will bear

the burden of proving that she will suffer future “hardships” that “outweigh[ ] the

public’s interest in the open administration of justice.” Encarnación, 181 Wn.2d at

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

9. She is unlikely to succeed; even a family’s “very important” interest in finding

secure, appropriate housing may be deemed “[p]ure speculation” if a court

determines that “it is not impossible for them to obtain housing” of some kind. Id.

at 10.

An elected prosecutor would be legally and professionally accountable for

such detrimental impacts. It is inherent in the nature of “prosecuting attorneys”

that they are attorneys and are therefore subject to professional discipline if they

deviate from the Rules of Professional Conduct. WASH. CONST. art. XI, § 5.

Prosecutors have additional, special responsibilities because a “‘public

prosecutor . . . is a quasi-judicial officer, representing the People of the state, and

presumed to act impartially in the interest only of justice.’” State v. Monday, 171

Wn.2d 667, 676 n.2, 257 P.3d 551 (2011) (emphasis omitted) (alteration in

original) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)); see

also RPC 3.8 cmt. 1 (“A prosecutor has the responsibility of a minister of justice

and not simply that of an advocate.”). It is also inherent in the nature of any office

filled by “election,” including that of a prosecuting attorney, that the official is

always subject to being voted out of office for any actions or omissions deemed

relevant by the public. WASH. CONST. art. XI, § 5. Thus, elected prosecutors are

constrained by ethical rules and the will of the voters, and they can be held

accountable for their transgressions.

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

Stout is neither an attorney nor an elected official, so he will not be held

accountable to any standards beyond his own. It is therefore unsurprising that

Stout was apparently pleased by the negative impacts of his dishonesty, suggesting

that the “inconvenience” Felix suffered was appropriate retaliation for the

“humiliation” he felt as the alleged victim of Felix’s alleged crime. CP at 14-15;

cf. id. at 27 (antiharassment protection order prohibiting Stout from coming within

500 feet of Felix’s job or home for 10 years based on his “threat to [a] State

employee due to her duties”).

Stout’s misuse of the judicial process and lack of concern for the public

interest typifies the challenges that arise when private, interested individuals

attempt to play the “distinctive role of the prosecutor” because of the ever-present

“potential for private interest to influence the discharge of public duty.” Young,

481 U.S. at 803, 805; see, e.g., Ware, 5 Wn. App. 2d at 667 (attempting to charge a

juvenile who “was under 12 years old at the time of the incident” in adult court).

These problems are compounded when the private individual is not trained to

discern between ethical and unethical conduct for an attorney in the highly

specialized setting of a criminal prosecution, where another person’s liberty may

be put at risk based on a complainant’s misunderstanding of (or disregard for)

fundamental legal concepts. Cf. State v. Yishmael, 195 Wn.2d 155, 170, 456 P.3d

1172 (2020) (“Victims of unlicensed practice of law have faced deportation; had

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Yu, J., concurring in result)

money misappropriated; and, as this case demonstrated, have been arrested and

jailed.”).

The citizen complaint rule encourages conduct similar to Stout’s, despite the

extensive harm it causes to everyone else. We should therefore address the facial

unconstitutionality of this judge-made rule now, so that we may prevent similar

harm in the future.

CONCLUSION

It is long past time for the wasteful pretense of citizen complaints to end. I

would affirm the district court’s order of dismissal on the alternative basis that this

and every citizen complaint case must be summarily dismissed with prejudice

because CrRLJ 2.1(c) is unconstitutional on its face. I therefore respectfully

concur only in the result.