State v. A.M.W.

• Court: Washington Supreme Court
• Decided: August 14, 2025
• Docket: 103,006-1
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON AUGUST 14, 2025 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON AUGUST 14, 2025 SARAH R. PENDLETON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 103006-1 Respondent, EN BANC v. Filed: August 14, 2025 A.M.W.,

Petitioner.

GORDON McCLOUD, J.— A court rule, JuCR 7.16, and a state statute,

RCW 13.40.040, both address when a court may issue an arrest warrant for a

juvenile. But they contain different prerequisites to the issuance of such a

warrant—the court rule’s prerequisites are more restrictive than the statute’s

prerequisites. This opinion addresses a question of first impression concerning

these two provisions: do they conflict and, if so, which one prevails?

The statute addressing juvenile arrest warrants, RCW 13.40.040(1)(a), states

in relevant part, “A juvenile may be taken into custody . . . [p]ursuant to a court

order if a complaint is filed with the court alleging, and the court finds probable

cause to believe, that the juvenile has committed an offense or has violated terms State v. A.M.W., No. 103006-1

of a disposition order or release order.” (Emphasis added.) A court rule, JuCR

7.16, also addresses juvenile arrest warrants. For arrest warrants based on a

violation of a court order, it states, “No new warrants shall issue unless a finding is

made that the individual circumstances of the alleged ‘Violation of a Court Order’

pose a serious threat to public safety.” JuCR 7.16(a) (emphasis added). For arrest

warrants based on a failure to appear, it similarly states, “No new warrants shall

issue unless a finding is made that the individual circumstances of the Failure to

Appear poses a serious threat to public safety.” JuCR 7.16(b) (emphasis added).

Here, the trial court issued an arrest warrant for A.M.W. for violating a

condition of her juvenile disposition order forbidding her from using alcohol. That

court reasoned that A.M.W.’s past suicide attempt, which occurred while A.M.W.

was violating that condition, satisfied JuCR 7.16’s more restrictive prerequisite

that the violation “pose a serious threat to public safety.” JuCR 7.16(a). A.M.W.

appealed, arguing that JuCR 7.16 irreconcilably conflicts with RCW 13.40.040 and

that JuCR 7.16 trumped the statute because this court has power to adopt

“procedural law,” like the issuance of arrest warrants, while the legislature has the

power to enact “substantive law.”

The Court of Appeals rejected her argument. It held that the rule and the

statute conflict and that despite the fact that JuCR 7.16 concerns only the

procedure for issuing warrants, it amounts to a substantive rule because it limits the

2 State v. A.M.W., No. 103006-1

State’s ability to enforce the Juvenile Justice Act of 1977, ch. 13.40 RCW. That

appellate court further held that because it is a rule on a substantive matter, it falls

outside this court’s rule-making power. State v. A.M.W., 30 Wn. App. 2d 472, 545

P.3d 394 (2024).

We reverse. We adhere to our prior precedent and hold that JuCR 7.16—like

all rules concerning court process such as warrants—is a procedural rule. We

further hold that because JuCR 7.16 is a procedural rule, it falls squarely within

this court’s inherent, constitutional, and statutory power to adopt rules of court

procedure. Finally, we hold that JuCR 7.16 can be harmonized with RCW

13.40.040 because a trial court can apply both sets of prerequisites before issuing a

warrant. We also take this opportunity to provide guidance on the correct

application of JuCR 7.16’s directive that trial courts base their decisions on “the

individual circumstances of the alleged” violation or failure to appear. JuCR

7.16(a), (b).

FACTS AND PROCEDURAL HISTORY

I. Disposition and issuance of bench warrant

The relevant facts of the case are undisputed. In March 2022, 13-year-old

A.M.W. pleaded guilty to one count of fourth degree assault based on an

altercation with her family members. Sealed Clerk’s Papers (CP) at 7-14. The court

accepted her plea and imposed a seven-month term of community supervision and

3 State v. A.M.W., No. 103006-1

numerous conditions. CP at 17-21 (ord.). The conditions included attending school,

reporting to a probation officer, abiding by a curfew, refraining from drug and

alcohol use, residing in her mother’s home, attending all mental health

appointments and taking prescribed medications, and refraining from committing

new crimes. Id. at 20-21.

On March 11, 2022, the State moved for a bench warrant. Id. at 27-31. It

alleged that A.M.W. posed a serious threat to public safety under JuCR 7.16

(without specifying the subsection of the rule under which it was proceeding). It

recited the facts giving rise to the March 1 disposition order. Id. at 28. It then

explained that A.M.W. was associating with D.H., an older male with an extensive

criminal history (as well as a pending criminal investigation in which he was a

suspect in second-degree child molestation with A.M.W. as the alleged victim) and

alleged gang ties. Id. The State asserted that D.H.’s “criminal history, his other

alleged criminal behavior, and the significant age difference existing between he

and the respondent not only places the respondent in peril, but creates a situation

where she too poses a serious threat to community safety.” Id. at 29 (emphasis

added). A.M.W.’s attorney opposed issuance of the warrant, arguing that the

State’s allegations certainly described a threat to A.M.W.’s own, individual safety,

but that those allegations did not show that A.M.W. herself posed a serious threat

to public safety. Id. at 32-35. This difference is important because JuCR 7.16 does

4 State v. A.M.W., No. 103006-1

not allow a juvenile court to issue a warrant to incarcerate a juvenile who poses a

threat to her own safety; it allows a juvenile court to issue such a warrant only if

the juvenile poses a “serious threat” to “public safety.” Id. at 33-35.

The record is unclear as to whether the juvenile court issued a bench warrant

that day. The State moved for another bench warrant on March 14, asserting

identical facts. Id. at 36-39. The record is likewise unclear on whether the court

granted that motion.

Over the next few months, however, A.M.W. violated the terms of the

disposition order several times. The State sought, and the court granted, five

modifications of the disposition order based on those violations. Verbatim Rep. of

Proc. (VRP) at 5.

On July 18, 2022, the State again moved the court to issue a bench warrant.

CP at 51-54. This time, the State alleged that A.M.W. violated four court-ordered

conditions: “Contact w/Probation Officer,” “Drug/Alcohol Use,” “Curfew,” and

“Other.” Id. at 54 (Ex. A – request for court action). According to the probation

officer’s report, A.M.W. attempted suicide on June 1, 2022 at a local bridge while

drinking with D.H. Id. Then, on July 13, A.M.W. left her mother’s home and still

had not returned by July 18, the date the State filed the motion. Id. at 52. A.M.W.’s

mother reported that A.M.W. threatened suicide over the phone on July 14. Id.

Later that day, A.M.W.’s mother saw A.M.W. and D.H. drinking downtown, but

5 State v. A.M.W., No. 103006-1

they fled when she approached. Id. The State also alleged that A.M.W. was not

taking her prescribed medications while “on the run.” VRP at 7.

In addition to these allegations, the State’s July 18 bench warrant motion

repeated its prior allegations regarding D.H.’s dangerousness. CP at 52. The

motion further alleged that A.M.W. had a pending charge of second degree

malicious mischief (with D.H. as codefendant) relating to vandalism and was under

pretrial release conditions for that charge. Id. at 52-53; VRP at 6. The State

repeated its assertion that A.M.W.’s involvement with D.H. “not only places

[A.M.W.] in peril, but creates a situation where she too poses a serious threat to

community safety.” CP at 53; VRP at 8.

A.M.W. opposed for the same reasons as before: she argued that the State’s

request for a bench warrant was based on concerns about A.M.W.’s personal safety

and that JuCR 7.16 does not permit the court to issue a warrant for that reason. CP

at 60-63.

The juvenile court held a hearing on the State’s motion immediately, on July

19. The State provided more detail about A.M.W.’s suicide attempt. VRP at 6-7.

According to a police report, A.M.W. was intoxicated and got into an argument

with D.H. on the Monroe Street Bridge in Spokane. Id. Bystanders reported seeing

her swinging her leg over the side of the bridge; they pulled her back down and

held her until police arrived. Id. A.M.W. struggled with the police officers, and

6 State v. A.M.W., No. 103006-1

when first responders arrived, A.M.W. allegedly attempted to bite them. Id. The

State’s argument about dangerousness remained focused on A.M.W.’s

vulnerability and danger to herself, rather than on assaulting the first responders:

There’s no question that this young woman poses a serious danger to herself. She is suicidal. She is not taking her prescribed medications. She has untreated alcohol and drug issues as well as untreated mental health issues. She’s extremely vulnerable. She’s 14 years old, and she’s essentially living on the streets. She’s in a relationship with an 18-year-old man who is gang involved. He is a suspect in several alleged sex crimes where [A.M.W.] is identified as the victim.

Id. at 7-8. The State also alleged that there had been “numerous run reports and

incidents where police have had to respond to situations where [A.M.W.] has been

present or involved,” which “takes officers away from other calls, other duties, and

other responsibilities in the community.” Id. at 9.

A.M.W.’s attorney argued that the State’s request for a warrant was still

focused on D.H.’s dangerousness. Id. She acknowledged the serious concerns

about A.M.W.’s behavior but argued that A.M.W.’s actions posed individual safety

issues, not serious public safety threats under JuCR 7.16. Id. at 10.

Judge McKay orally ruled that a bench warrant could issue under JuCR 7.16.

Id. at 12-16. She noted that A.M.W. had continually violated her disposition

orders. Id. at 12-13. Stating that “I think that I can make [JuCR] 7.16 as well as

[RCW] 13.40[.040] work together,” Judge McKay ruled that A.M.W. posed a

7 State v. A.M.W., No. 103006-1

serious threat to public safety “based upon her attempt of suicide as well as the fact

that she was intoxicated at the time.” Id. at 14. The judge elaborated:

There is law enforcement. There is fire. There is EMS that responds to suicide situations, and they put themselves at risk every time they do that when making a response to this child’s actions. In addition to that, when they are assisting this child, they are not assisting other areas of this community which do need help. So, I can consider that a substantial and significant community safety risk.

Id. at 14-15. Judge McKay also ruled that A.M.W.’s drug and alcohol use and her

failure to take prescribed mental health medication—both violations of the

disposition order—“also puts society as a whole at risk and it is substantial in

nature.” Id. at 15. In other words, the court did not rely on A.M.W.’s alleged

assaults on the first responders.

Judge McKay issued a bench warrant. CP at 68-69. In a separate order, the

judge entered findings that A.M.W. met the JuCR 7.16 “serious threat to public

safety” standard for the following reasons:

“[1] Based on not complying with the court’s orders and is thereby not available for rehabilitation, [2] Her suicidal tendencies put other community members at risk, [3] Youth has untreated mental health and substance issues that put the community at risk.”

CP at 64 (Ord.).

8 State v. A.M.W., No. 103006-1

II. Appeal

A.M.W. appealed. 1 In a split, published opinion, the Court of Appeals first

ruled that—as both parties by then agreed—the facts supporting the bench warrant

ruling did not meet JuCR 7.16’s “serious threat to public safety” standard because

the connection between A.M.W.’s hypothetical future suicide attempts and the

strain it could put on first responders was “too attenuated.” A.M.W., 30 Wn. App.

2d at 480. (Neither the parties nor the appellate court mentioned A.M.W.’s alleged

assaults on the first responders, which the State never asserted as a threat to public

safety and which the judge never identified as a threat to public safety.)

But the majority also ruled that JuCR 7.16 irreconcilably conflicted with

RCW 13.40.040. That presented the question of which one controlled—the court

rule or the conflicting statute. The general rule used to answer this question is that

based on constitutional separation of powers principles and statutes implementing

those principles, court rules control on matters of procedure but statutes control on

matters of substantive law. State v. Gresham, 173 Wn.2d 405, 428-29, 269 P.3d

207 (2012) (quoting Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974,

980, 216 P.3d 374 (2009)). Applying that rule, the Court of Appeals’ majority

1 The Court of Appeals ruled that the bench warrant order was not appealable as a matter of right, but it accepted discretionary review under RAP 2.3(b)(4). Comm’r’s Ruling, State v. A.M.W., No. 39113-2-III (Wash. Ct. App. Sept. 29, 2022). 9 State v. A.M.W., No. 103006-1

accurately reasoned that it had to determine whether JuCR 7.16 was substantive or

procedural. A.M.W., 30 Wn. App. 2d. at 483.

The appellate court majority, however, concluded that JuCR 7.16 was

substantive. It began by interpreting JuCR 7.16 as creating “a categorical bar to the

issuance of warrants that would otherwise be proper under RCW 13.40.040” and

concluded that this bar stopped courts from “comprehensive enforcement of the

Juvenile Justice Act as to all juvenile offenders as contemplated by RCW

13.40.010.” Id. It continued that the “restrictions placed on a judge’s statutory

warrant authority by JuCR 7.16 render the Juvenile Justice Act a voluntary system

for all but the most serious offenders.” Id. at 482-83.

Because JuCR 7.16 “restrict[ed] courts from holding juveniles accountable

as contemplated by the Juvenile Justice Act unless the juvenile presents a serious

threat to public safety,” the court ruled that JuCR 7.16 constituted a policy decision

by the Washington Supreme Court that “conflicts with the legislature’s policy

choice that the Juvenile Justice Act should apply to all juveniles who violate

criminal statutes, not just those who pose grave risks to the community.” Id. at 484.

Based on this perceived conflict, the court concluded that JuCR 7.16 “is a

substantive rule that cannot be enforced in the face of the Juvenile Justice Act.” Id.

at 488.

10 State v. A.M.W., No. 103006-1

One judge dissented. He agreed with the majority that the rule conflicted

with the statute. But he would have held that the court rule controlled over the

statute because arrest warrants are procedural matters under this court’s control,

rather than substantive matters under the legislature’s control. Id. at 510 (Fearing,

C.J., dissenting). He disagreed with the majority’s conclusion that a procedural

court rule’s big effect on substantive law makes the rule itself substantive—he

noted that most procedural rules have some effect, sometimes a very big effect, on

the application of substantive law. Id. at 490.

A.M.W. petitioned for review, which this court granted. Ord., State v.

A.M.W., No. 103006-1 (Wash. July 15, 2024). King County Department of Public

Defense and the Washington State Office of Public Defense filed an amicus brief

in support of review. Following acceptance of review, a group of retired

Washington Superior Court Judges and Juvenile Court Administrators filed an

amicus brief arguing for affirmance of the Court of Appeals decision and also

urging this court’s members to recuse themselves from this case. 2

2 This case was initially consolidated with State v. J.M.H., No. 102658-7. The consolidation was severed November 25, 2024. 11 State v. A.M.W., No. 103006-1

ANALYSIS 3

I. This court has inherent, constitutional, and statutory authority to adopt rules governing court procedure

This court’s “power to prescribe rules for procedure and practice” is

inherent, constitutional, and statutory. State v. Smith, 84 Wn.2d 498, 501, 527 P.2d

674 (1974) (collecting cases).4 As we have stated many times, it is “an inherent

power of the judicial branch and flows from article IV, section 1 of the Washington

Constitution.” Gresham, 173 Wn.2d at 428 (citation omitted) (citing Smith, 84 Wn.

2d at 501; State v. Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975)); see also State

3 This case is moot because this court can no longer provide effective relief to the parties. In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004). However, we may take review of a moot case if it presents issues of continuing and substantial public interest. Id. The constitutionality and application of JuCR 7.16 is precisely this type of issue. Further, the issue will inevitably recur, and this court’s authoritative guidance will help provide future guidance to public officers. Westerman v. Cary, 125 Wn.2d 277, 286-87, 892 P.2d 1067 (1994). Review of this moot case is warranted. 4 The dissent asserts that our “claim” that “rule making is an ‘inherent’ authority of the court . . . is not supported by history or our case law spanning many decades.” Dissent at 11. In direct contradiction to that assertion, the dissent later acknowledges that in “numerous” controlling decisions spanning the past 50 years, we have held that this court possesses inherent authority to promulgate rules governing Washington court procedures. Id. at 16 n.2 (collecting cases); see also id. at 22-23 (stating that this court possesses “inherent power” to “prescrib[e] rules” governing court procedure). The dissent opines that we should now overrule that controlling precedent. Id. at 21-23. But the dissent is the only voice to make that call. It fails to mention that the parties have not asked us to overrule that precedent; amici have not asked us to overrule that precedent; and we do not take the drastic step of overruling precedent unless we are convinced that the precedent is both incorrect and harmful. We are not convinced of that; apparently, the parties to this case were not convinced of that, either.

12 State v. A.M.W., No. 103006-1

ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 3, 267 P. 770

(1928).

This court’s power to create procedural court rules has also been recognized

by the legislature in RCW 2.04.190 and RCW 2.04.200. Gresham, 173 Wn.2d at

428. In RCW 2.04.190, the legislature acknowledged that

[t]he supreme court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of giving notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts, and district courts of the state.

(Emphasis added.) The legislature also recognized that when this court adopts such

rules, “all laws in conflict therewith shall be and become of no further force or

effect.” RCW 2.04.200.

To be sure, we recognize that “[t]he legislature may also adopt, by statute,

rules governing court procedures.” Gresham, 173 Wn.2d at 428. In our system of

separation of powers, “[o]ne branch of government may engage in functions that

intervene in or overlap with the functions of another branch, so long as it does not

undermine the operation of that other branch ‘or undermine the rule of law which

all branches are committed to maintain.’” In re Int. of Mowery, 141 Wn. App. 263,

13 State v. A.M.W., No. 103006-1

281, 169 P.3d 835 (2007) (quoting In re Salary of Juv. Dir., 87 Wn.2d 232, 243,

552 P.2d 163 (1976)).

But in accordance with those separation of powers principles, the

Washington Constitution places the final say on issues of court procedure in the

hands of this Court—even if our procedural rules “contradict rules established by

the legislature.” Marine Power & Equip. Co. v. Dep’t of Transp., 102 Wn.2d 457,

461, 687 P.2d 202 (1984) (citing WASH. CONST. art. IV, § 1; Fields, 85 Wn.2d

126).

II. JuCR 7.16 is a rule governing court procedure—the issuance of bench warrants—so its adoption falls squarely within this court’s inherent, constitutional, and statutory authority

With this framework in mind, we consider the difference between

substantive rules and procedural rules. Substantive law “prescribes norms for

societal conduct and punishments for violations thereof. It thus creates, defines,

and regulates primary rights.” Smith, 84 Wn.2d at 501 (citing State v. Pavelich,

153 Wash. 379, 383-84, 279 P. 1102 (1929); In re Fla. Rules of Crim. Proc., 272

So. 2d 65 (Fla. 1972) (per curiam memorandum)).

By contrast, procedural laws “pertain to the essentially mechanical

operations of the courts by which substantive law, rights, and remedies are

effectuated.” Id. Procedure includes “‘all steps and proceedings in a cause from its

commencement to its conclusion.’” Fields, 85 Wn.2d at 130 (quoting Mobley v.

14 State v. A.M.W., No. 103006-1

Jackson, 40 Ga. App. 761, 766, 151 S.E. 522 (1930)). Most notably, procedure

encompasses “‘any form of order, writ, summons or notice given by authority of

law for the purpose of acquiring jurisdiction of a person or bringing him into court

to answer.’” Id. at 129 (emphasis added) (quoting Cutler v. Cutler, 28 Misc. 2d

526, 528, 217 N.Y.S.2d 185 (Sup. Ct. 1961)).

A bench warrant is issued precisely for the purpose of “‘bringing [the

person] into court to answer.’” Id. (quoting Cutler, 28 Misc. 2d at 528). Therefore,

court rules like JuCR 7.16 that relate to the issuance of bench warrants must be

considered procedural under this controlling precedent.

In fact, in Fields, we explicitly held that search warrants are procedural, not

substantive. Id. at 129-30. In that case, the trial court quashed a search warrant that

was authorized by court rule on the ground that it was not authorized by statute. Id.

at 127. We reversed. We held that the warrant was valid despite the lack of

statutory authorization because the “search warrant is part of the criminal process”

and was thus properly controlled by the court rule. Id. at 129-30.

While Fields dealt with search warrants, our opinion made clear that arrest

warrants also fall within this court’s procedural authority because procedure

includes “‘any . . . writ . . . given by authority of law for the purpose of acquiring

jurisdiction of a person or bringing him into court to answer.’” Id. at 129 (emphasis

added) (quoting Cutler, 28 Misc. 2d at 528). And if there is any question about

15 State v. A.M.W., No. 103006-1

whether an arrest warrant is a writ, the arrest warrant in this case explicitly states,

“Herein fail not, and have you then and there this writ.” CP at 68 (emphasis

added).

Thus, under controlling precedent, JuCR 7.16 is clearly procedural in nature.

JuCR 7.16 deals with warrants; warrants are writs; writs are procedural matters;

and the court has inherent, constitutional, and statutory authority over procedural

matters. It necessarily follows that this court had the authority to adopt JuCR 7.16.

The State argues that although court rules might generally be considered

procedural, JuCR 7.16 has such a big impact on the court’s ability to enforce the

Juvenile Justice Act that JuCR 7.16 must be considered substantive (and, hence,

outside of this court’s rule making authority). The State explains that no matter

how procedural JuCR 7.16 might look, it limits the State’s ability to bring juveniles

into court and proceed against them, so it threatens to undermine the enforcement

of the entire Juvenile Justice Act. The State provides no empirical support for this

assertion.5

5 Amici King County Public Defenders et al. state that in King County, only 0.01 percent of youth charged in King County Juvenile Court were on “Failure to Appear Status” between 2020 and 2023. Mem. of Amici Curiae of King County Dep’t of Pub. Def. & Wash. State Off. of Pub. Def. in Supp. of Pet. for Rev. at 10. JuCR 7.16 has been in effect since February 1, 2021. Thus, “in this charging period, at least 98.3 percent of the King County juveniles who remained in the system appear not to have needed arrest warrants to compel their presence.” Suppl. Br. of Pet’r A.M.W. at 31. 16 State v. A.M.W., No. 103006-1

But even more importantly, the State (and the Court of Appeals) provides no

support for its claim that a procedural rule that has a big effect on the

enforceability of a substantive law must be considered substantive, even though it

regulates a matter of procedure. We find no support for that claim, either.

In fact, controlling case law holds to the contrary. In Smith, we analyzed a

statute that prohibited release on bail of any defendant appealing from conviction

of a capital crime. 84 Wn.2d at 500. But a court rule mandated bail for such

appellants unless they were a flight risk or posed a “‘substantial danger to another

or to the community.’” Id. at 500-01 (quoting former CrR 3.2(h) (1973)). We

concluded that the court rule trumped the contrary statute. We reasoned, “Since the

inherent power to fix bail is grounded in the power to hold a defendant, and thus

relates to the manner of ensuring that the alleged offense will be heard by the

court, we believe it to be implicit that the right to bail is essentially procedural in

nature.” Id. at 502.

The court rule in Smith is comparable to the court rule in this case. The

Smith court rule could have a big effect on the enforceability of substantive law: a

person convicted of a capital crime who is released on bail could flee, undermining

the State’s ability to enforce the conviction. But in Smith, the mere possibility of

this negative outcome did not transform the procedural nature of the bail rule into

substantive law. Likewise, the fact that JuCR 7.16 limits juvenile arrest warrants

17 State v. A.M.W., No. 103006-1

more than RCW 13.40.040 does cannot transform the inherently procedural nature

of an arrest warrant rule into substantive law.

We have come to the exact same conclusion concerning court rules on other

procedural subjects that conflicted with statutes on those same subjects. For

example, we have held that rules of evidence are procedural—even though rules

pertaining to the admission of evidence have significant and often outcome-

determinative effects on the State’s ability to prosecute violations of substantive

law. In Gresham, the legislature passed a statute that permitted the introduction of

character evidence in certain criminal cases—evidence that would be inadmissible

under Evidence Rule 404(b). 173 Wn.2d at 429. We held that the statute conflicted

with ER 404(b) and that the two could not be harmonized. We continued that

because the Evidence Rules are procedural in nature—since “admission of

evidence is simply the means by which . . . substantive law is effectuated”—they

trumped the conflicting statute on the same topic. Id. at 431-32 (citing Smith, 84

Wn.2d at 501; Foster-Wyman Lumber Co., 148 Wash. at 14). We therefore ruled

that the statute was invalid. Id. at 432; see also Putman, 166 Wn.2d at 983 (statute

that required medical malpractice plaintiffs to file an additional document not

required by court rule irreconcilably conflicted with CR 8, and CR 8 as a

procedural rule trumped the statute).

18 State v. A.M.W., No. 103006-1

Finally, the State’s assertion that a procedural rule that has a big effect on

the enforceability of a substantive law must be considered substantive, even though

it regulates a matter of procedure, is foreclosed by numerous recent, controlling

cases discussing the retroactivity of State v. Houston-Sconiers, 188 Wn.2d 1, 21,

391 P.3d 409 (2017), on collateral review. In Houston-Sconiers, we announced a

substantive constitutional rule: that the Eighth Amendment bars “adult standard

SRA 6 ranges and enhancements that would be disproportionate punishment for

juveniles who possess diminished culpability.” In re Pers. Restraint of Ali, 196

Wn.2d 220, 237, 474 P.3d 507 (2020) (citing Houston-Sconiers, 188 Wn.2d 1);

U.S. CONST. amend. VIII. Houston-Sconiers also laid out two mandates that we

said were “necessary to effectuate that substantive rule”: first, that sentencing

courts “must consider the mitigating qualities of youth” and second, that such

courts must “have discretion to impose sentences below what the SRA mandates.”

Ali, 196 Wn.2d at 237-38 (citing Houston-Sconiers, 188 Wn.2d at 19). Later cases

held that these “dual mandates” are procedural, not substantive, and thus are not

independently retroactive on collateral review. In re Pers. Restraint of Williams,

200 Wn.2d 622, 632, 520 P.3d 933 (2022).

In other words, although we explicitly recognized the immense impact that

the procedural rules have on the protection of children’s constitutional right to be

6 Sentencing Reform Act of 1981, ch. 9.94A RCW. 19 State v. A.M.W., No. 103006-1

free of cruel and unusual punishment, we declined to hold that this impact

transformed the procedural rules into substantive rules. See In re Pers. Restraint of

Hinton, 1 Wn.3d 317, 330-31, 525 P.3d 156 (2023) (citing Ali, 196 Wn.2d at 239);

In re Pers. Restraint of Domingo-Cornelio, 196 Wn.2d 255, 474 P.3d 524 (2020);

In re Pers. Restraint of Carrasco, 1 Wn.3d 224, 525 P.3d 196 (2023); Williams,

200 Wn.2d at 622.

Based on this controlling precedent, we must conclude that JuCR 7.16 is

procedural in nature and that the rule thus falls within this court’s inherent,

constitutional, rule making authority. The next question is whether JuCR 7.16 and

RCW 13.40.040 conflict—in which case JuCR 7.16 controls—or whether they can

be harmonized.

III. JuCR 7.16 can be harmonized with RCW 13.40.040 because the trial court can apply both sets of prerequisites before issuing a warrant

As discussed above, JuCR 7.16 is clearly procedural. It would control over

the statute if the two stood in conflict. Putman, 166 Wn.2d at 980.

But before declaring that they conflict, we must “‘first attempt to harmonize

them and give effect to both’” if possible. Gresham, 173 Wn.2d at 428-29 (quoting

Putman, 166 Wn.2d at 980). Only if we cannot harmonize the rule and the statute

do we invalidate the impermissible statutory provision. Wash. State Council of

County & City Emps. v. Hahn, 151 Wn.2d 163, 168-69, 86 P.3d 774 (2004).

20 State v. A.M.W., No. 103006-1

The parties both argue that the rule and the statute cannot be harmonized.

The State argues that the two can’t be harmonized because JuCR 7.16 bars courts

from issuing warrants that they could otherwise issue under RCW 13.40.040.

Suppl. Br. of Resp’t at 14-15. A.M.W. essentially argues that because JuCR 7.16 is

a procedural rule, it automatically controls over the statute. Suppl. Br. of Pet’r

A.M.W. at 15.

We disagree that the statute stands in irreconcilable conflict with the court

rule. We begin by interpreting the language of each provision, then determining

whether the provisions can be harmonized. State v. Thomas, 121 Wn.2d 504, 512-

13, 851 P.2d 673 (1993); Gresham, 173 Wn.2d at 428-29.

“The meaning of a statute is a question of law reviewed de novo.” Dep’t of

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

objective in statutory interpretation “is to ascertain and carry out the Legislature’s

intent.” Id. If a “statute’s meaning is plain on its face,” then we “give effect to that

plain meaning as an expression of legislative intent.” Id. at 9-10 (citing State v.

J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). And we derive a given statute’s

plain meaning “from the ordinary meaning of the language at issue, . . . the context

of the statute in which that provision is found, related provisions, and the statutory

scheme as a whole.” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)

(citing Wash. Pub. Ports Ass’n v. Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d

21 State v. A.M.W., No. 103006-1

462 (2003); Campbell & Gwinn, 146 Wn.2d at 10-12). We apply the same

interpretive principles to court rules. In re Disciplinary Proceeding Against King,

168 Wn.2d 888, 899, 232 P.3d 1095 (2010) (quoting State v. Chhom, 162 Wn.2d

451, 458, 173 P.3d 234 (2007)).

As stated, RCW 13.40.040(1)(a) provides in relevant part that “[a] juvenile

may be taken into custody…[p]ursuant to a court order if a complaint is filed with

the court alleging, and the court finds probable cause to believe, that the juvenile

has committed an offense or has violated terms of a disposition order or release

order.” JuCR 7.16, on the other hand, bars the court from issuing a warrant based

on a juvenile’s violation of a court order or failure to appear unless the court makes

a finding that the “individual circumstances” of the alleged violation or failure to

appear “pose[] a serious threat to public safety.” JuCr 7.16(a), (b).

JuCR 7.16 and RCW 13.40.040(1)(a) can be harmonized by treating them as

distinct but equally valid prerequisites to issuance of a bench warrant. Under the

statute, the court must find “probable cause to believe[] that the juvenile has

committed an offense or has violated terms of a disposition order or release order.”

RCW 13.40.040(1)(a). Under the rule, the court must find that the violation in

RCW 13.40.040(1)(a) poses a “serious threat to public safety.” JuCR 7.16(a)-(b). It

is possible for the court to make both findings. If it does, then it can issue the

bench warrant.

22 State v. A.M.W., No. 103006-1

We followed this approach in Thomas, a case that also dealt with apparently

conflicting statutory- and rule-based warrant requirements. 121 Wn.2d 504. In

Thomas, the court analyzed a statute that said a search warrant must be returned

“‘within three days’” and a court rule that said a warrant “‘shall command the

officer to search, within a specified period of time not to exceed 10 days.’” Id. at

507-08 (emphasis omitted) (quoting RCW 69.50.509 and CrR 2.3). The defendant

argued that the statute controlled over the rule and so the warrant should be both

executed and returned within 3 days of issuance. Id. at 508. We disagreed; we held

that “search warrants for controlled substances must be executed within 10 days of

issuance” under the court rule “and returned within 3 days of execution pursuant”

to the statute. Id. at 513 (emphasis added). With those interpretations of the

triggering date for execution and return—triggering dates that were not necessarily

apparent from the language of the statute—we were able to harmonize the two

provisions. The same approach applies here.

And, even if the court rule and the statute did irreconcilably conflict, the

procedural court rule would control over the procedural statute, as discussed in Part

I above. Gresham, 173 Wn.2d at 428-29.

IV. Under JuCR 7.16, the “individual circumstances” of the given violation must pose a “serious threat to public safety” before a warrant can issue

Both parties agreed on appeal that the juvenile court erred in its application

of JuCR 7.16 because the State provided insufficient evidence to find A.M.W. 23 State v. A.M.W., No. 103006-1

posed a “serious threat to public safety.” Answer to Pet. for Rev. at 3. The Court of

Appeals agreed: “The juvenile court in this case reasoned A.M.W.’s suicidal

ideation met the requirements of JuCR 7.16 because of the possible need for first

responders to assist in her care. We find this concern too attenuated to qualify as a

‘serious’ threat to public safety.” A.M.W., 30 Wn. App. 2d at 480.

We agree with the Court of Appeals’ holding on this issue as framed. But we

take this opportunity to provide further guidance on the application of JuCR 7.16.

We begin by looking again at the relevant phrases in JuCR 7.16. That rule

provides that a warrant may issue only if the “individual circumstances” of the

juvenile’s failure to appear or violation of a court order pose a “serious threat to

public safety.” JuCR 7.16(a), (b).

We agree with A.M.W. that a “serious threat to public safety” does not

encompass a threat that endangers only an individual’s personal safety. If the

drafters of the rule had meant to include that type of individual threat, they would

have used different language. Compare, e.g., RCW 13.40.040(2)(a)(ii), with (iii)

(the Juvenile Justice Act uses the contrasting language “protect[ing] the juvenile

from himself or herself” and protecting the public when “[t]he juvenile is a threat

to community safety” to convey different meanings); and RCW

71.05.020(37)(a)(i), with (ii) (the Involuntary Treatment Act uses the contrasting

language, the risk that “[p]hysical harm will be inflicted by a person upon his or

24 State v. A.M.W., No. 103006-1

her own person” and the risk that “physical harm will be inflicted by a person upon

another” to convey different meanings). While a youth’s threats or attempts to self-

harm clearly pose a serious threat to the youth’s safety—and require immediate

attention and treatment—the language of the rule requires a serious threat to public

safety.

The “individual circumstances” of the juvenile’s alleged court order

violation or failure to appear are what the court must examine when determining if

the juvenile’s actions pose a serious threat of imminent harm to the community.

The use of present-tense forms of the verb “pose” in JuCr 7.16(a) and (b)

reinforces the time-bounded nature of the court’s factual inquiry: “The use of the

present tense in a statute strongly suggests it does not extend to past actions.”

Crown W. Realty, LLC v. Pollution Control Hr’gs Bd., 7 Wn. App. 2d 710, 738,

435 P.3d 288 (2019) (citing Carr v. United States, 560 U.S. 438, 449, 130 S. Ct.

2229, 176 L. Ed. 2d 1152 (2010)).

Thus, “individual circumstances” are the distinct facts surrounding the

alleged violation or failure to appear—in this case, the facts surrounding the

alcohol consumption and other violations—not facts from before the violation or

speculation about what might happen in the future. Putting all of these terms

together, the language of JuCR 7.16 means that the facts surrounding the specific

25 State v. A.M.W., No. 103006-1

violation or failure to appear must currently present an indication of impending

danger to the community as a whole, not just danger to the individual juvenile.

In this case, the juvenile court’s rulings (both oral and written) largely failed

to consider the “individual circumstances” of A.M.W.’s alleged violations of the

disposition order. The court mentioned several times the concerns arising out of

A.M.W.’s association with D.H., although the disposition order had never been

modified to forbid her from associating with him. The court focused on A.M.W.’s

prior violations of her supervision conditions and discussed her current pending

charges in another case to reach general conclusions that A.M.W. had “some

serious issues with drug[s] and alcohol” and “mental health issues.” VRP at 12-14.

With the exception of a discussion of A.M.W.’s suicide attempt (discussed below),

the court did not provide any further analysis about why these all constituted

violations or whether the ones that did constitute violations posed a current serious

threat to public safety. See id. at 14-15.

The court engaged in a closer analysis of the individual circumstances of

A.M.W.’s attempted suicide. It noted that the attempt occurred while A.M.W. was

allegedly intoxicated. Id. at 14. But the court’s reasoning as to why the attempt

posed a serious threat to public safety was erroneous. The court’s focus was on the

possibility that first responders might need to assist A.M.W. in the future should

any further attempts at self-harm occur and that such response would take

26 State v. A.M.W., No. 103006-1

resources away from other emergencies. Id. at 14-15. As the Court of Appeals

held, this concern is “too attenuated to qualify as a ‘serious’ threat to public

safety.” A.M.W., 30 Wn. App. 2d at 480.

But neither the parties nor the court mentioned the juvenile’s alleged assaults

on the first responders as a threat to public safety. It is certainly possible that the

threat of future serious assaultive conduct could meet JuCR 7.16’s standard.

Further, neither the parties nor the court mentioned a different, predictable

consequence of A.M.W.’s suicide attempt. It is certainly predictable that a child’s

suicide attempt in a public place at a roadway would prompt more caring members

of the public to try to rescue and restrain that child and, hence, could also meet

JuCR 7.16’s “serious threat to public safety” standard. The alleged circumstances

of this tragic incident threatened not only A.M.W.’s life but potentially also the

safety of community members and valuable first responders who could have been

harmed while trying to help. We mention these details to emphasize that in

applying JuCR 7.16, courts must carefully consider all relevant facts presented and

articulate how and why they support the finding of serious threat to public safety.

Finally, JuCR 7.16 also requires the court to find that the serious threat

remains at the time it is asked to issue an arrest warrant. Here, the court issued the

bench warrant on July 19, over a month after A.M.W.’s June 1 suicide attempt.

There was no substantive discussion on this record about whether, even if the

27 State v. A.M.W., No. 103006-1

individual circumstances of A.M.W.’s violation posed a serious threat to the public

on June 1, those circumstances continued to pose such a threat on July 19.

Under JuCR 7.16, the court must carefully consider whether the juvenile’s

violation or failure to appear poses a serious threat of harm to the community, not

just to the juvenile—a threat that must be ongoing at the time the court issues a

warrant.

V. We decline to recuse ourselves from hearing this case

A group of retired juvenile court judges and administrators filed a friend-of-

the-court brief asking all the justices who voted on whether to adopt JuCR 7.16 to

recuse themselves from—that is, to decline to hear—this case. Amicus Curiae Br.

of Retired Wash. Super. Ct. Judges & Juv. Ct. Adm’rs in Supp. of Recusal &

Affirmance (Amicus Br. of Retired Judges) at 10 (citing SAR 21). They have not

framed this as a motion to recuse. Id. at 10 n.2. Instead, they ask us to recuse on

our own on the ground that we have already voted on this rule: specifically,

because we have rejected proposed amendments to JuCR 7.16 that criticized the

rule for the reasons that the Court of Appeals used to invalidate it. Id. at 17-20.

We decline this request.

The Code of Judicial Conduct (CJC) governs the ethical duties of judges and

justices in Washington, in our personal and professional lives, with the goal of

“maintain[ing] and enhanc[ing] confidence in the legal system.’ CJC pmbl. Canon

28 State v. A.M.W., No. 103006-1

2 governs how judges should fulfill their official duties. CJC Rule 2.7 imposes on

judges a “responsibility to decide” and states, “A judge shall hear and decide

matters assigned to the judge, except when disqualification or recusal is required

by Rule 2.11 or other law.” (Emphasis added.) The comment to Rule 2.7 reinforces

this responsibility to “hear and decide matters” absent a “require[ment]” to recuse:

Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence . . . judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification or recusal to avoid cases that present difficult, controversial, or unpopular issues.

(Emphasis added.) This CJC rule and its comment thus mandate that judges and

justices hear and decide pending cases, unless recusal is required, not just possible.

Rule 2.2 supports this conclusion; it states, “A judge shall uphold and apply

the law, and shall perform all duties of judicial office fairly and impartially.” CJC

Rule 2.2 (asterisk omitted).

It is certainly true that CJC Rule 2.11 states that a judge must disqualify or

recuse herself when “the judge’s impartiality might reasonably be questioned.” See

also Amicus Br. of Retired Judges at 15 (citing In re Disciplinary Proceeding

Against Sanders, 159 Wn.2d 517, 524, 145 P.3d 1208 (2006)). And we have not

explicitly considered the exact argument that a sitting justice cannot review the

29 State v. A.M.W., No. 103006-1

validity of an administrative decision, in this case a court rule, that the justices

voted to adopt in their administrative capacity.

But we have implicitly considered this argument—and rejected it—by

continually hearing challenges to court rules and ruling in those cases without

recusal. E.g., Hanson v. Carmona, 1 Wn.3d 362, 525 P.3d 940 (2023); Gresham,

173 Wn.2d 405; Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010); Putman, 166

Wn.2d 974; City of Fircrest v. Jensen, 158 Wn.2d 384, 143 P.3d 776 (2006)

(plurality opinion); Hahn, 151 Wn.2d 163; Zylstra v. Piva, 85 Wn.2d 743, 539

P.2d 823 (1975); Fields, 85 Wn.2d 126.

There’s a good reason for this. We develop court rules in our administrative,

quasi-legislative capacity rather than in our judicial capacity. Thus, adopting a rule

is not like sitting on a case and then later issuing a decision on that same case. See

N.Y. State Ass’n of Crim. Def. Laws. v. Kaye, 95 N.Y.2d 556, 562, 744 N.E.2d 123,

721 N.Y.S.2d 588 (Ct. App. 2000) (per curiam).

Our sister state courts have squarely dealt with this argument and have

explicitly rejected it. Those courts hold that they can rule on the legal validity of

their own administrative decisions, and that they have a duty to do so in their

adjudicative capacity. Id. (rejecting motion to disqualify judges on the basis that

they had voted on an administrative decision that was the subject of the lawsuit);

Lorenz v. N.H. Admin. Off. of Cts., 151 N.H. 440, 442, 858 A.2d 546 (2004)

30 State v. A.M.W., No. 103006-1

(“Courts in other jurisdictions have routinely declined to recuse themselves merely

because a litigant challenges a court directive.” (citing N.Y. State Ass’n of Crim.

Def. Laws., 95 N.Y.2d 556; Ky. Utils. Co. v. S.E. Coal Co., 836 S.W.2d 407, 408

(Ky. 1992); Off. of State Ct. Adm’r v. Background Info. Servs., Inc., 994 P.2d 420,

425-26 (Colo. 1999); Berberian v. Kane, 425 A.2d 527, 527-28 (R.I. 1981))).

In line with this weight of authority, we decline amici’s recusal request.

CONCLUSION

We hold that JuCR 7.16 fully complies with the Washington State

Constitution. It is a procedural rule regarding juvenile arrest warrants that

represents a valid exercise of this court’s inherent, constitutional, and statutory

authority to promulgate rules of court procedure.

We further hold that JuCR 7.16 can be harmonized with RCW 13.40.040.

JuCR 7.16 certainly adds another prerequisite to issuance of an arrest warrant for a

juvenile that RCW 13.40.040 lacks. But the juvenile court can, and must, comply

with both provisions at the same time. Further, even if the provisions stood in

conflict, JuCR 7.16 would control over the statute because it is a procedural rule.

Finally, we decline the retired judges’ request that we recuse ourselves from

hearing and deciding this case.

31 State v. A.M.W., No. 103006-1

WE CONCUR:

32 State v. A.M.W., No. 103006-1 (Yu, J., concurring)

No. 103006-1

YU, J. (concurring) — I fully concur with the majority’s sound legal

analysis adhering to our precedent and reversing in this case. It is well established

that court rules concerning court processes, such as arrest warrants, are procedural

and properly within this court’s rule-making authority. Simply because a

procedural rule touches on or has an effect on substantive law does not transform it

into substantive law.

I write nevertheless to express my agreement with Judge Fearing’s astute

observations regarding the incarceration of youth of color. See State v. A.M.W., 30

Wn. App. 2d 472, 508-10, 545 P.3d 394 (2024) (Fearing, C.J., dissenting).

Reliable studies clearly refute the presumptions of both the trial court and the

Court of Appeals that placing A.M.W. (and other similarly situated juveniles) in

detention is beneficial to them. The overwhelming evidence is that detention

1 State v. A.M.W., No. 103006-1 (Yu, J., concurring)

intended to keep a juvenile safe from themselves actually causes more harm to that

youth.

In 2021, this court received the Second Report and Recommendations of the

Task Force on Race in Washington’s Criminal Legal System, which focused on the

juvenile legal system. Among the report’s many findings and recommendations, it

concluded that young people who enter our juvenile legal system actually have

worse outcomes “in their health, education, housing, employment, future

involvement in the criminal legal system, and other measures of wellness.” Task

Force 2.0 Juv. Just. Subcomm., Race in Washington’s Juvenile Legal System: 2021

Report to the Washington Supreme Court, 57 GONZ. L. REV. 636, 650 (2021).

Thus, contrary to the belief that we as judges can offer better services if we

incarcerate youth at risk, the report solidly concludes just the opposite: We are not

helping the people we hope to help. Without adequate funding and staffing to hire

professional social and health service providers, judges do more harm than good

when they incarcerate youth.

The harms of incarcerating youth are well documented, as described in

Section IV of the Task Force’s report. The experience of incarceration alone has

been shown to have a negative impact on juveniles’ mental health, physical well-

being, and educational outcomes, with large portions of incarcerated youth

developing mental health difficulties after their incarceration began. The limited

2 State v. A.M.W., No. 103006-1 (Yu, J., concurring)

or lost educational opportunities for incarcerated youth, coupled with the onset of

new or worsening mental health conditions, also places them at increased risk of

suicide and self-harm, and impairs their ability to obtain future employment in

comparison to their peers. These harms are enormously consequential and cannot

so easily be dismissed by unsubstantiated public safety concerns.

Finally, in deciding whether to incarcerate a young person, judges should

consider how youth of color are overrepresented in the juvenile legal system and

seek out the diversionary options provided by our legislature. See A.M.W., 30 Wn.

App. 2d at 509-10 (Fearing, C.J., dissenting). As detailed by amici, the

disproportionate impact of arrest and detention on youth of color has long been

known to be devasting in these communities. See Mem. of Amici Curiae King

County Dep’t of Pub. Def. & Wash. State Off. of Pub. Def. in Supp. of Pet. for

Rev. at 5-9. Yet, the Task Force recently found that “race still matters in ways that

are not fair, that do not advance legitimate public safety objectives, that produce

racial disparities in the juvenile legal system, and that undermine public confidence

that our system is intended to do justice.” Task Force 2.0 Juv. Just. Subcomm.,

supra, at 698-99.

These findings should cause each one of us to closely examine and change

our practices and policies. The call to commit and to develop a legal system that

genuinely protects public safety while addressing the rehabilitative needs of all

3 State v. A.M.W., No. 103006-1 (Yu, J., concurring)

youth has been delivered to us a number of times. We should now pay heed. For

these reasons, I respectfully concur.

______________________________

4 State v. A.M.W.

MADSEN, J. (dissenting)—Washington’s legislature determined that juveniles

who do not appear in court or otherwise violate court orders are subject to bench

warrants. RCW 13.40.040. A court rule, JuCR 7.16, sets a stricter standard for issuing

bench warrants than the statute, and therefore narrows the group of juveniles subject to

RCW 13.40.040 and undermines the legislature’s policy of holding juveniles accountable

for their conduct. Changing the class of individuals subject to a law is a substantive

decision on policy that falls to the legislature, not the courts. A juvenile court cannot

comply with the both JuCR 7.16 and RCW 13.40.040, therefore the rule and statute

cannot be harmonized. As a substantive matter, the statute must prevail. Because the

majority arrives at the opposite conclusion, that these court rules are procedural, I

respectfully dissent.

I also write separately because, contrary to the majority’s assertion that this court

has the inherent authority to adopt court rules, the history of rule making in Washington

reflects authority over court practices and procedures that has been shared by lawmakers

and judges. History also reveals that what began as a gradual delegation of rule making No. 103006-1 Madsen, J., dissenting

power from the legislature to the judiciary ended abruptly when this court, for the first

time, asserted inherent authority in State v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674

(1974), which subsequent decisions interpreted as the complete and final say on

procedural issues. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS

55 (6th ed. 1921) (warning that some conceptions of law “once fixed, are pushed to their

logical conclusions with inexorable severity”).

In my view, Smith is a case of judicial overreaching. Roon v. King County, 24

Wn.2d 519, 531, 166 P.2d 165 (1946) (Mallery, J., concurring specially) (“Only self

restraint stands between the judicial branch and the exercise by it of legislative functions

granted to the legislative branch.”). We should recognize this overreach and restore the

historical equilibrium pre-Smith in which the legislature statutorily delegated and

therefore shares rule making power with the courts. More importantly, the inherent

authority this court possesses is limited to regulating internal business and whatever is

necessary to maintain the independence and integrity of the judicial branch, and certainly

does not extend to setting sentencing policy through court rules that contradict the

legislature’s statutory dictates.

DISCUSSION

Though I would take the opportunity presented in this case to reexamine and

reformulate our approach to rule making, I depart from the majority’s interpretation of

our rule making precedent as currently expressed.

2 No. 103006-1 Madsen, J., dissenting

A. Separation of Powers

The doctrine of separation of powers recognizes that each branch of government

controls its own sphere of activity. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494,

504, 198 P.3d 1021 (2009). It is the legislature’s role to set policy and enact laws. Id. at

506. The judicial branch interprets and applies those laws. Id. at 505. Courts are wary

not to “arrogate to themselves any undue powers, lest they disturb the balance of power.”

Wash. State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674-75, 763 P.2d 442

(1988).

Yet the separation of powers doctrine does not create “exclusive spheres” of

governmental competence. Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975).

“‘The compartmentalization of governmental powers among the executive, legislative

and judicial branches has never been watertight.’” Id. (quoting In re Salaries for Prob.

Officers of Bergen County, 58 N.J. 422, 425, 278 A.2d 417 (1971)). Harmony in

cooperation between the branches is “fundamental” to the success of our government. Id.

When this cooperation breaks down, the judiciary necessarily exercises its power to

sustain its own, separate integrity. Id. On the other hand, “[t]he judicial branch violates

the doctrine when it assumes ‘tasks that are more properly accomplished by [other]

branches.’” Hale, 165 Wn.2d at 507 (alteration in original) (internal quotation marks

omitted) (quoting Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994)). “The

question to be asked is not whether two branches of government engage in coinciding

3 No. 103006-1 Madsen, J., dissenting

activities, but rather whether the activity of one branch threatens the independence or

integrity or invades the prerogatives of another.” Zylstra, 85 Wn.2d at 750.

The legislature and the court determine rules of procedure. See RCW 2.04.190;

State v. Gresham, 173 Wn.2d 405, 428, 269 P.3d 207 (2012). This does not implicate

separation of powers concerns so long as it does not “undermine the operation of another

branch” or the rule of law. In re Salary of Juv. Dir., 87 Wn.2d 232, 243, 522 P.2d 163

(1976). When a court rule and statute conflict, the subject matter of the laws determines

which controls. See State v. W.W., 76 Wn. App. 754, 758, 887 P.2d 914 (1995). If

substantive, the statute prevails; if procedural, the court rule controls. RCW 2.04.190,

.200.

JuCR 7.16(a) states that warrants issued for violation of a court order related to

juvenile proceedings must be quashed unless the court makes a finding that the juvenile is

a “serious public safety threat.” In addition, a warrant issued for a juvenile who “[f]ail[s]

to [a]ppear” at a proceeding must be quashed unless supported by a finding that the

juvenile is a “serious public safety threat.” JuCR 7.16(b).

RCW 13.40.040 concerns the grounds for taking a juvenile into custody. A

juvenile may be taken into custody if the court has probable cause to believe the juvenile

has committed an offense or violated the terms of a disposition or release order. RCW

13.40.040(1)(a). A juvenile may also be taken into custody pursuant to a court order as a

material witness or when the juvenile’s parole has been suspended. RCW

13.40.040(1)(c)-(d). A juvenile may not be held in detention unless probable cause exists

4 No. 103006-1 Madsen, J., dissenting

to believe that the juvenile committed an offense or violated the terms of a disposition

order and, among other things, the juvenile “will likely fail to appear” at other

proceedings; detention is required to protect the juvenile from themselves; the juvenile is

a threat to the safety of the community, will intimidate a witness or interfere with the

administration of justice, or has committed a crime during the pendency of another case.

RCW 13.04.040(2)(a).

Though the line between substance and procedure can sometimes be vague and

indistinct, we can draw a clear line in this case. JuCR 7.16 sets a stricter standard than

the statute for a court to issue bench warrants for juveniles who violate court orders or

violate parole conditions. That is, the court rule narrows the legislatively determined

group of individuals who will be subject to the Juvenile Justice Act of 1977, ch. 13.40

RCW. See Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d 442

(2004) (“A rule is substantive rather than procedural if it alters the range of conduct or

the class of persons that the law punishes.” (emphasis added)). As a substantive matter, it

falls to the legislature to set policy and enact the law, and to prescribe criminal penalties.

Hale, 165 Wn.2d at 506; In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 591,

520 P.3d 939 (2022) (stating that setting penalties and punishments for criminal offenses

is a legislative function). Here, the legislature made the policy determination that

juveniles who fail to appear or otherwise violate a court order should be held

accountable. By prohibiting a trial judge from issuing a warrant to bring the juvenile

before the court through issuance of a bench warrant, JuCR 7.16 thwarts that policy and

5 No. 103006-1 Madsen, J., dissenting

contradicts the statutory provisions. RCW 13.40.040(1), .010(2)(c) (“[T]he legislature

declares the following to be equally important purposes of this chapter: . . . Make the

juvenile offender accountable for his or her criminal behavior.”).

Moreover, JuCR 7.16 says nothing about procedures for the conduct of court

business. For example, RCW 13.40.040(1)(c) provides that by court order, a juvenile

may be taken into detention to be held as a material witness, but if the juvenile violates

that order, JuCR 7.16 requires the order to be quashed unless there is a finding that the

juvenile is a serious public safety threat. The rule does not concern a court’s manner of

issuing a warrant (on a particular day), its form (using a certain approved form), or

mechanism to be used for bringing the juvenile into court (writ of habeas corpus,

subpoena, material witness warrant). See State v. Pavelich, 153 Wash. 379, 381, 279 P.

1102 (1929) (“‘form, manner and order of carrying on and conducting suits or

prosecutions’” constitutes court procedures (quoting 31 CYC. Practice 1153 (1909)).

Rather, the rule depends on a juvenile’s behavior. The behavior of failing to

appear constitutes the crime of bail jumping. RCW 13.40.040(5). Regulating behavior

through criminal statutes and fixing the punishments for their violation is a plenary

legislative function. Forcha-Williams, 200 Wn.2d at 591. Thus, JuCR 7.16 prevents

holding juveniles accountable for the separate and legislatively determined offense of bail

jumping, and it reduces the authority of the executive branch to carry out its duty to

prosecute that offense. Colvin v. Inslee, 195 Wn.2d 879, 892, 467 P.3d 953 (2020) (“The

legislative branch writes laws, the executive branch faithfully executes those laws.”

6 No. 103006-1 Madsen, J., dissenting

(citations omitted)). This impedes the executive branch and intrudes into the legislature’s

sphere of influence. Zylstra, 85 Wn.2d at 750 (a branch violates the separation of power

when “the activity of one branch threatens the independence or integrity or invades the

prerogatives of another”).

The majority concludes that JuCR 7.16 is procedural. It hangs its hat on the

notion that process is “‘any form of order, writ, summons or notice given by authority of

law” for “‘bringing [someone] into court to answer.” Majority at 14-15 (quoting State v.

Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975)). On this point, I agree. If the rule and

statute at issue here (and in Fields) concerned the form of a writ—required that the

warrant to be printed on purple paper or using only Comic Sans font—they would

undoubtedly qualify as process and fall under this court’s purview. See Smith, 84 Wn.2d

at 501 (procedural rules “pertain to the essentially mechanical operations of the courts.”);

Pavelich, 153 Wash. at 381 (“[W]hat constitutes practice and procedure in the law is . . .

‘the form, manner and order of carrying on and conducting suits or prosecutions.’”

(quoting 31 CYC. Practice, supra, at 1153)).

The rule in this case does substantially more. JuCR 7.16 restricts the grounds on

which a warrant may issue at all. JuCR 7.16 prevents courts from utilizing the remedy

provided by law for holding juveniles accountable. RCW 13.40.040; Smith, 84 Wn.2d at

501 (remedies are substantive law). The majority would recognize this distinction if it

followed Fields’ reasoning that the mechanics of bringing a defendant to court such as

7 No. 103006-1 Madsen, J., dissenting

form and timing is procedural; who decides the procedure and who is subject to it is

substantive. See RCW 2.04.190; Fields, 85 Wn.2d at 129.

The unique status of the juvenile court is also worth noting. The juvenile court as

a separate division of the superior court was created by the legislature. State v. Posey,

174 Wn.2d 131, 136-37, 272 P.3d 840 (2012). We have recognized the central role

lawmakers have played in regulating juvenile courts. E.g., State v. S.J.C., 183 Wn.2d

408, 419, 352 P.3d 749 (2015) (“The legislature has always set policies specifically

regarding and restricting the openness of juvenile court records”). Indeed, the legislature

substantially restructured juvenile courts in 1977. Id. at 420. The legislative branch’s

significant presence in creating and regulating the juvenile courts belies the idea that the

juvenile court’s authority to issue bench warrants resides in this court’s rule making

power. The majority’s discomfort with the notion that the legislature directly governs a

juvenile court’s issuance of warrants does not make it a violation of separation of powers.

See Colvin, 195 Wn.2d at 892 n.5; Wash. State Bar Ass’n v. State, 125 Wn.2d 901, 912-

13, 890 P.2d 1047 (1995) (Dolliver, J., dissenting) (“[S]eparation of powers must be

viewed . . . [as] overlapping functions that permit[] even some direct control by one

branch over another.”).

Even assuming the majority is correct that JuCR 7.16 is procedural, the rule’s

effect on the Juvenile Justice Act tells a different story. The majority dismisses this

concern out-of-hand, concluding that an effect cannot transform a procedural rule into a

substantive one. Majority at 19 (citing cases). I disagree.

8 No. 103006-1 Madsen, J., dissenting

Justice Brandeis observed that the function of court rules “embraces, among other

things, the regulation of the forms, operation and effect of process.” Wash.-S. Navigation

Co. v. Balt. & Phila. Steamboat Co., 263 U.S. 629, 635, 44 S. Ct. 220, 68 L. Ed. 480

(1924) (emphasis added). In Marsin v. Udall, 78 Ariz. 309, 312, 279 P.2d 721 (1955),

the Arizona Supreme Court recognized that procedural rules can affect substantive law,

with constitutional consequences. Marsin concerned the right to a fair and impartial trial

before a fair and impartial judge. Id. The Arizona high court observed that any court

rule “that operates to lessen or eliminate [a substantive] right is of no legal force.” Id.

The United States Supreme Court has held “that under some circumstances a procedure

that had such effect offended the due process clause of the Federal constitution.” Id.

(citing Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)).

The Court of Appeals below recognized that “[m]any rules live in a ‘borderland

where procedure and substance are interwoven.’” State v. A.M.W., 30 Wn. App. 2d 472,

484, 545 P.3d 394 (2024) (quoting Flaminio v. Honda Motor Co., 733 F.2d 463, 471 (7th

Cir. 1984)). The separation of powers doctrine asks not whether “two branches of

government engage in coinciding activities, but rather whether the activity of one branch

. . . invades the prerogatives of another.” Zylstra, 85 Wn.2d at 750. Properly understood,

rule making is a shared activity between the legislature and the judiciary. See Sackett v.

Santilli, 146 Wn.2d 498, 506, 47 P.3d 948 (2002) (stating that RCW 2.04.190 recognizes

the “coextensive authority” of the legislature and judiciary to prescribe procedural rules).

9 No. 103006-1 Madsen, J., dissenting

The effects of such an activity can invade the prerogatives or substantive authority of

another branch. Id.; Marsin, 78 Ariz. at 312.

JuCR 7.16 deprives a judge of what is often the only tool available to them to

bring a juvenile into court unless that juvenile poses a serious threat to public safety.

A.M.W., 30 Wn. App. at 482. If a juvenile ignores a summons, the judge has no ability to

enforce the Juvenile Justice Act. RCW 13.40.010(2)(c) (“[T]he legislature declares the

following to be equally important purposes of this chapter: . . . Make the juvenile

offender accountable for his or her criminal behavior.”).

Here, the majority dismisses the effects of procedure pursuant to our juvenile

sentencing cases. Majority at 18-19. The majority explains that some of the juvenile

sentencing cases announced a “substantive constitutional rule” and others laid out

mandates “‘necessary to effectuate that substantive rule.’” Id. (quoting In re Pers.

Restraint of Ali, 196 Wn.2d 220, 237, 474 P.3d 507 (2020), and citing State v. Houston-

Sconiers, 188 Wn.2d 1, 18-19, 391 P.3d 409 (2017)). Later cases characterized these

mandates as procedural, rather than substantive. Id. at 19 (citing In re Pers. Restraint of

Williams, 200 Wn.2d 622, 632, 520 P.3d 933 (2022)). According to the majority, these

later cases recognized the effect of procedural rules on children’s constitutional right to

be free of cruel and unusual punishment, but that effect did not “transform” them into

substantive rules. Id. (citing cases).

Contrary to such reasoning, our juvenile sentencing cases provide no guidance on

the matter at hand. First, the substance-procedure dichotomy is relevant here under the

10 No. 103006-1 Madsen, J., dissenting

separation of powers doctrine and not for purposes of retroactivity on collateral review—

the concern of many of our juvenile sentencing cases cited by the majority. Whether

legislation is retroactive may bring up separation of powers concerns, for example, ex

post facto laws. E.g., Hale, 165 Wn.2d at 507. But this case does not ask whether a law

is retroactive. Further, the juvenile sentencing cases cited by the majority involved a new

constitutional right and the procedural mechanisms to effectuate it, both announced by

this court. The present case deals with the interaction between a statute enacted by one

branch of the government and a rule enacted by another on the same topic. Simply put,

the juvenile sentencing cases are inapposite, and it is concerning that the majority

attempts to use them as support.

JuCR 7.16 overrides and changes RCW 13.40.040’s requirements for a court to

issue bench warrants for juveniles. The majority concludes this is a procedural matter

and within the court’s power. But when a court rule decides what class of people is

subject to a warrant, it is a rule about judicial policy preferences. It is not procedural; it is

substantive. As such, it falls to the legislative branch to decide. Because JuCR 7.16

concerns substantive matters, it violates the separation of powers doctrine.

B. Judicial Rule Making

1. Rule Making as a Shared Power

The majority claims that rule making is an “inherent” authority of the court, but

that claim is not supported by history or by our case law spanning many decades—cases

decided at a time much closer to the adoption of our Washington State Constitution. In

11 No. 103006-1 Madsen, J., dissenting

fact, the history of making rules for court operations is complicated, as it has bounced

between the courts and the legislative authority even before Washington became a state.

The early history of rule making in America centered in the courts. Charles H.

Paul, The Rule-Making Power of the Courts, 1 WASH. L. REV. 163, 164 (1926).

American courts, like their English cousins, developed process and procedure on a case-

by-case basis with occasional insertions by lawmakers seeking to mitigate the rough

edges of common law pleading. Id.; Hugh Spitzer, Court Rulemaking in Washington

State, 6 U. PUGET SOUND L. REV. 31, 45 (1982). By the 19th century, these court-made

procedures had become overly technical, and the courts were slow to correct them. Paul,

supra, at 167. To resolve this situation, American lawmakers took matters into their own

hands. See id. New York, for example, transferred the majority of its “procedural

regulation from the courts to the legislature.” Id.

Washington followed suit. In 1854, the territorial legislature dispensed with

common law and adopted the code approach, in which the legislature enacted most court

rules, including procedural regulations. Spitzer, supra, at 45-46. This court

acknowledged legislative primacy in matters of procedure in State ex rel. King County v.

Superior Court, 104 Wash. 268, 273-74, 176 P. 352 (1918). 1

The code system, like the common law, proved to be a less than ideal solution. As

the size and complexity of the procedural code grew, it became rigid and challenging to

1 Cf. Charles H. Paul, The Rule-Making Power of the Courts, 1 WASH. REV. 223, 227 (1926) (“So that at the birth of Washington Territory the rule-making power was apparently dual.”). 12 No. 103006-1 Madsen, J., dissenting

amend. Paul, supra, at 168-69; Spitzer, supra, at 46. In response, Washington’s 1925

legislature voted to “delegate[] most of its power over procedure to the supreme court.”

Spitzer, supra, at 46; LAWS OF 1925, 1st Ex. Sess., ch. 118, § 1 (codified at RCW

2.04.190) (“An Act . . . authorizing the Supreme Court to make rules relating to pleading,

procedure and practice in the courts of this state.” (emphasis added)). Reformers justified

this move not as a delegation of exclusively legislative power but as a power shared with

the judiciary. Spitzer, supra, at 49.

The court adopted that view in State ex rel. Foster-Wyman Lumber Co. v. Superior

Court, 148 Wash. 1, 4-5, 267 P. 770 (1928). At issue in that case was whether the 1925

act was an impermissible delegation of legislative power. Id. at 9. Foster-Wyman held

that it was not. Though the court noted some legal and historical authority for viewing

rule making as a “purely” judicial function, it did not decide the case on that ground. Id.

at 4, 5 (“The point here in controversy can be decided upon a far more stable

foundation.”). Foster-Wyman reasoned that while the legislature had functioned since

statehood as the source for court procedure and practice, rule making was not exclusively

legislative. Id. at 4. As such, power to set court rules could properly be delegated to the

court, which is always in session and without the delays of law making. Id. at 7-8.

2. Claiming Inherent and Constitutional Power over Rule Making

For four decades, Washington courts discussed rule making as a power statutorily

delegated to the judiciary. E.g., Pavelich, 153 Wash. at 381 (“Much learned argument is

devoted by appellants to the rule-making power of this court, by virtue of Laws of

13 No. 103006-1 Madsen, J., dissenting

1925.”); In re Welfare of Messmer, 52 Wn.2d 510, 511-12, 326 P.2d 1004 (1958) (“RCW

2.04.190 gives the supreme court the power to prescribe the forms and procedure

regarding writs, ‘and generally to regulate and prescribe by rule . . . pleading, practice

and procedure to be used in all suits.’” (quoting RCW 2.04.190)); Ashley v. Superior

Court, 82 Wn.2d 188, 197, 509 P.2d 751 (1973) (“The courts are permitted by statute to

adopt rules from time to time.”).

The language changed abruptly in Smith, 84 Wn.2d at 502. At issue in Smith was

a trial court’s refusal to grant bail to a defendant appealing their conviction. A statute

mandated bail on appeal with limited exceptions while this court’s rule allowed courts to

deny bail based on a defendant’s flight risk or substantial danger. Id. at 501. Smith

decided the case pursuant to court rule. Id. Invoking the court’s “limited inherent

powers” to set procedural rules, Smith stated that in its opinion, the power to grant bail is

a function of the judicial branch and “implicit[ly]” procedural. Id. at 501-02. Smith also

offered an “alternative” rationale: the legislature’s delegation of power to make

procedural rules via RCW 2.04.190. Id. at 502. Importantly, however, Smith did not

discuss the origin of the court’s inherent power. See id. at 501 (citing cases from other

jurisdictions); Spitzer, supra, at 50.

The court provided an ostensible source for this authority in Fields, 85 Wn.2d at

129. There, defendants were charged with misdemeanors and moved to suppress

evidence obtained by a search warrant issued under the court’s criminal rules. Id. at 126-

27. The trial court quashed the warrant, reasoning that warrants were limited by statute

14 No. 103006-1 Madsen, J., dissenting

to investigating felonies while the court rule impermissibly expanded the grounds for

warrants to all crimes, including misdemeanors. Id. at 127. Fields disagreed and

reversed, upholding the warrant pursuant to court rule.

Noting “several grounds” for its holding, Fields relied on RCW 2.04.190 and

inherent authority. Id. at 128-29 (“[p]roceeding under either the statutory authority or the

inherent power of the court”). The court also provided a source for this claimed

authority—article IV, section 1 of Washington’s constitution. Fields, 85 Wn.2d at 129.

Article IV, section 1 states that “[t]he judicial power of the state shall be vested in a

supreme court, superior courts . . . and such inferior courts as the legislature may

provide.” But Fields did not explain how the provision expresses any specific, inherent

judicial power over rule making. See Bellingham Bay Improvement Co. v. City of New

Whatcom, 20 Wash. 53, 57-58, 54 P. 774 (1898) (“Section 1 of article 4 of the

constitution . . . is more in the nature of a declaration of the names of courts than it is of a

definition of judicial power.”).

Section 24, on the other hand, specifically calls out the authority of the superior

courts of this state to establish rules for their governance but is entirely silent on rule

making authority of the Supreme Court. WASH. CONST. art. IV, § 24. Foster-Wyman

interpreted this provision not as a constitutional grant of power but as a means of

ensuring uniform rules of procedure. 148 Wash. 10. Nevertheless, section 24 is the only

constitutional provision that speaks to any court’s authority to prescribe procedural rules.

Section 24 empowers superior courts to set rules limited to procedures necessary to keep

15 No. 103006-1 Madsen, J., dissenting

the system running and resolving cases. We have recognized that the express mention of

one thing implies the exclusion of the other. Yelle v. Bishop, 55 Wn.2d 286, 295, 347

P.2d 1081 (1959). The specific language in section 24 and the general language of

section 1 highlight the constitution’s silence on this court’s claimed inherent authority

over rule making. Rather, as Foster-Wyman recognized, this court received delegated

authority from the legislature to promulgate procedural rules. 148 Wash. at 9; In re

Messmer, 52 Wn.2d at 511-12; RCW 2.04.190.

3. Further Confusing the Court’s Rule Making Authority

The year Fields was decided, Chief Justice Hale warned of the “still ill-defined

concepts of inherent power” in rule making. State v. Williams, 85 Wn.2d 29, 35, 530

P.2d 225 (1975) (Hale, C.J., dissenting). The Chief Justice presumed that the authority

would be “narrow” and “rarely applied.” Id. Our subsequent decisions demonstrate just

the opposite 2 and have further confused our rule making authority.

2 Far from being rarely applied, the concept of rule making as an inherent power has appeared in numerous cases in this court since Fields and Smith were decided. E.g., State v. Templeton, 148 Wn.2d 193, 213-18, 59 P.3d 632 (2002); City of Fircrest v. Jensen, 158 Wn.2d 384, 393-98, 143 P.3d 776 (2006) (plurality opinion); Gresham, 173 Wn.2d at 428; City of Seattle v. Hesler, 98 Wn.2d 73, 80-81, 653 P.2d 631 (1982); State v. Stump, 185 Wn.2d 454, 458-59, 374 P.3d 89 (2016); Sackett, 146 Wn.2d at 504-07; Marine Power & Equip. Co. v. Dep’t of Transp., 102 Wn.2d 457, 461, 687 P.2d 202 (1984); City of Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 727, 585 P.2d 784 (1978); Banowsky v. Backstrom, 193 Wn.2d 724, 740, 445 P.3d 543 (2019); Putnam v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974, 984, 216 P.3d 374 (2009); Wash. State Council of County & City Emps. v. Hahn, 151 Wn.2d 163, 168-69, 86 P.3d 774 (2004); Wash. State Bar Ass’n v. State, 125 Wn.2d at 908; City of Spokane v. County of Spokane, 158 Wn.2d 661, 679-81, 146 P.3d 893 (2006); In re Salary of Juv. Dir., 87 Wn.2d 232, 243, 552 P.2d 163 (1976); State v. Blilie, 132 Wn.2d 484, 490, 939 P.2d 691 (1997); City of Seattle v. State, 100 Wn.2d 16, 22, 666 P.2d 359 (1983). 16 No. 103006-1 Madsen, J., dissenting

In Gresham, 173 Wn.2d at 428, we stated that the power to promulgate procedural

rules is inherent and constitutional pursuant to Smith and Fields. “The legislature

recognized this power in RCW 2.04.190.” Id. The lawmakers who enacted .190 in 1925

would no doubt be surprised to hear it. At that time, lawmakers and judges recognized

their shared authority to prescribe court rules. See Pavelich, 153 Wash. at 381; Ashley,

82 Wn.2d at 197; Gresham, 173 Wn.2d at 442 (Madsen, C.J., dissenting) (“Historically,

both the legislature and this court have frequently adopted procedural rules . . . there is no

constitutional mandate prohibiting the legislature from doing so.”). It was not until Smith

and Fields, which were decided more than 40 years later, that this court proclaimed its

inherent, constitutional authority over rule making. In other words, our legislature

delegated rule making power to the courts because it was “practical, sensible, and

efficient—not because of a suddenly discovered ‘inherent power.’” Spitzer, supra, at

59. 3

Perhaps the best example of this confused area of the law is the shifting source of

authority for the supremacy of court rule. RCW 2.04.200 states rules adopted by the

Supreme Court supersede conflicting statutory provisions. Courts have traditionally

relied on the statute for this proposition. E.g., Larson v. Union Inv. & Loan Co., 168

Wash. 5, 7, 10 P.2d 557 (1932); In re Messmer, 52 Wn.2d at 512; State v. Striker, 87

Wn.2d 870, 875, 557 P.2d 847 (1976). After Smith and Fields, this court eschewed .200

3 One might ask why an “inherent” authority was “delegated” by the legislature. Better, and more faithful to history and case law, is because the rule making authority has been a shared power throughout history. 17 No. 103006-1 Madsen, J., dissenting

in favor of our inherent and constitutionally derived power. E.g., Marine Power &

Equip. Co. v. Dep’t of Transp., 102 Wn.2d at 457, 461, 687 P.2d 202 (1984) (citing

WASH. CONST. art. IV, § 1; Fields, 85 Wn.2d 126) (“It is within the power of this court to

dictate, under the constitutional separation of powers, its own court rules, even if they

contradict rules established by the Legislature.”); Sackett, 146 Wn.2d at 504. But even

then, it seems we cannot decide whether the true source of court rule supremacy is

inherent or statutory—opting, apparently out of an abundance of caution, to rely on both.

State v. Johnson, 105 Wn.2d 92, 96, 711 P.2d 1017 (1986) (citing RCW 2.04.200; Smith,

84 Wn.2d 498).

4. Problems with Smith and Fields

Smith and Fields are marked departures from the court’s rule making precedent.

Previous decisions had recognized the legislature as the source of procedural rules. State

ex rel. King County, 104 Wash. at 273-74. Later, after the legislature had statutorily

delegated power, case law acknowledged that rule making was neither inherently

legislative nor inherently judicial. Foster-Wyman, 148 Wash. at 8-9. Rule making was

power shared between the two branches. E.g., id.; Pavelich, 153 Wash. at 381. Smith

ignored this balance of power and declared, without analysis or supporting authority, rule

making an “inherent attribute of the Supreme Court” and the principal rationale for its

holding. 84 Wn.2d at 502.

Fields provided the same level of analysis as Smith to conclude that a search

warrant is procedural. That is to say, very little. Fields cited but did not examine three

18 No. 103006-1 Madsen, J., dissenting

cases for the “well established” notion that issuance of a search warrant is part of the

criminal process. 85 Wn.2d at 129 (citing State v. Noah, 150 Wash. 187, 272 P. 729

(1928); Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97 (1950); Dunn v. State, 40 Okla.

Crim. 76, 267 P. 279 (1928)). These cases deserve a harder look.

In Noah, the only Washington case cited, a defendant argued that a search warrant

was void because the application for the warrant was presented to a justice of the peace

outside the boundaries of the office. 150 Wash. at 189. This court upheld the warrant,

explaining that under the applicable statute, the jurisdiction of a justice of the peace is

countywide yet the justice may “‘issue process in any place in his county.’” Id. (quoting

REM. COMP. STAT. § 48); see also State ex. rel. Hodge v. Gordon, 95 Wash. 289, 292-93,

163 P. 772 (1917) (discussing a search warrant as “initiat[ing] legal process” pursuant to

Laws of 1915, ch. 2, § 11). Noah held a search warrant qualified as “legal process” under

the statute. 150 Wash. at 292.

Brooks, a nonbinding case from Mississippi, asserted without analysis or

supporting authority that “[i]t is true that search warrants are in the nature of criminal

process.” 209 Miss. at 162. Dunn, another nonbinding case out of Oklahoma, stated that

“[a] search warrant is ‘process.’” 40 Okla. Crim. at 78 (quoting McAdoo v. State, 36

Okla. Crim. 198, 253 P. 307, 308 (1927)). Dunn concerned whether a search warrant

could be issued by a federal prohibition officer or a private person. Id. The court

answered no. Under the state legislative code regulating criminal procedure, only certain

law enforcement officers could serve warrants. Id. (citing art. 19, ch. 7 (COMP. OKLA.

19 No. 103006-1 Madsen, J., dissenting

ST. 1921)). McAdoo cited the Oklahoma constitution and state statute, specifically a

statute providing a “‘substantial form for a search warrant’” enacted by the Oklahoma

legislature. 36 Okla. Crim. at 200 (quoting Attorney General George F. Short’s

confession of error). McAdoo concluded “‘[t]here can be no doubt but that a search

warrant is a “process” as contemplated by the Oklahoma Constitution and the

corresponding sections of our statutes.’” Id. (emphasis added) (quoting Attorney

General George F. Short’s confession of error).

These cases, with the exception of Brooks, involved search warrants in the context

of legislative codes on procedure. 4 Fields ignored this context and categorized the cases

as recognizing search warrants as part of the general legal process in order to apply a

definition of process from yet another case (from another jurisdiction) having nothing in

common with the laws at issue in Noah and Dunn. 85 Wn.2d at 129. In other words,

Fields relied on cases where statute regulated legal process to conclude that the courts

alone could regulate legal process. See id. at 129-30. 5

4 As did Cutler v. Cutler, 28 Misc. 2d 526, 528, 217 N.Y.S.2d 185 (Sup. Ct. 1961), on which Fields relied for the statement that “legal process” includes “‘any form of order, writ, summons or notice given by authority of law for the purpose of . . . bringing [a person] into court.’” 85 Wn.2d at 129 (quoting Cutler, 28 Misc. 2d at 528). In Cutler, the defendant argued the service of process for a show cause hearing on contempt was illegal under state penal code. 5 Fields applied the definition of legal process in its “‘broadest sense,’” but provides no justification for selecting the maximalist definition of the term. 85 Wn.2d at 129 (quoting Cutler, 28 Misc. 2d at 528). Nor does Fields meaningfully engage with its handpicked definition. Process includes any “‘form of order, writ, summons or notice’” and “‘may include all steps and proceedings in a cause from its commencement to its conclusion.’” Id. (emphasis added) (quoting Cutler, 28 Misc. 2d at 528; Mobley v. Jackson, 40 Ga. App. 761, 766, 151 S.E. 522 (1930)). Fields does not explain how the grounds for issuing a search warrant qualifies as the form of a writ and treats Mobley’s permissive “may” as mandatory. Cf. Spokane County ex 20 No. 103006-1 Madsen, J., dissenting

Smith and Fields did not need to be decided on constitutional grounds. Ohnstad v.

Tacoma, 64 Wn.2d 904, 907, 395 P.2d 97 (1964) (“We have consistently held that we

will not pass on constitutional issues unless absolutely necessary to a determination of the

appeal.”). Both opinions discussed RCW 2.04.190 as an alternative rational. Smith, 84

Wn.2d at 502; Fields, 85 Wn.2d at 128. But by resolving the case on the court’s inherent,

constitutional authority, Smith and Fields have made RCW 2.04.190 meaningless,

contrary to this court’s precedent on statutory interpretation. City of Seattle v. State, 136

Wn.2d 693, 698, 965 P.2d 619 (1998) (“‘Statutes must be interpreted and construed so

that all the language used is given effect, with no portion rendered meaningless or

superfluous.’”).

In sum, Smith and Fields offer an insupportable foundation on which to assert this

court’s inherent authority. See Spitzer, supra, at 50. Smith proclaimed authority by

judicial fiat. Fields tied that authority to article IV, section 1, yet this too amounts to

simple fiat because Fields did not offer any meaningful analysis of its claimed

constitutional source.

As appellate judges, we must do more than declare a point of law. We must show

our work. See Stein v. Kaiser Found. Health Plan, Inc., 115 F.4th 1244, 1248 (9th Cir.

2024) (Forrest, J., concurring). Neither Smith nor Fields does so. Indeed, by resolving

the case on constitutional rather than statutory grounds, Smith and Fields ignored our

rel. Sullivan v. Glover, 2 Wn.2d 162, 169, 97 P.2d 628 (1940) (“As a general rule . . . the word ‘may’ is permissive only and operates to confer discretion.”). 21 No. 103006-1 Madsen, J., dissenting

traditional principle of judicial restraint, and, in doing so, both rendered RCW 2.04.190

meaningless and failed to provide a believable constitutional basis.

Smith and Fields pronounce broad holdings built on problematic reasoning.

Unfortunately, this court is now using these decisions to arrogate more power to this

branch than lawmakers could have conceived when enacting RCW 2.04.190 or the

drafters of our state constitution intended. Compare Gresham, 173 Wn.2d at 431-32

(holding that the rules of evidence are procedural), with Jensen, 158 Wn.2d at 394

(“[The] rules of evidence may be promulgated by both the legislative and judicial

branches.”), with Pavelich, 153 Wash. at 382 (“Rules of evidence are substantive law”).

It is time to bring history to bear on our rule making precedent. N.Y. Tr. Co. v.

Eisner, 256 U.S. 345, 349, 41 S. Ct. 506, 65 L. Ed. 963 (1921) (“[A] page of history is

worth a volume of logic.”). History reflects that rule making is a power delegated to this

court by the legislature, and therefore both branches wield it coextensively. While this

court has repeatedly asserted inherent, constitutional authority over rule making, our

analysis amounts to conclusory statements. E.g., Smith, 84 Wn.2d at 501-02; Fields, 85

Wn.2d at 129. I would therefore decline to follow those cases.

5. A Different Approach to Inherent Authority

I also urge the court to formulate a more reasoned approach to rule making.

Mindful that we share rule making authority with the legislature, separation of powers

concerns will always be present when prescribing court rules. As one commentator has

noted, in order that government branches operate effectively and protect the integrity of

22 No. 103006-1 Madsen, J., dissenting

their boundaries, “each division must maintain some exclusive ‘trumps’ to play against

the others when pressed.” Spitzer, supra, at 52. One such trump is our inherent

constitutional power. Though I disagree with the court’s prior interpretation of that

inherent constitutional power, I agree that it plays an important role in defining the

boundaries of judicial responsibilities. In my view, the role of inherent power is limited

to prescribing rules to regulate internal court business and protecting the judiciary “in the

performance of its constitutional duties.” Juv. Dir., 87 Wn.2d at 245.

JuCR 7.16 requires a finding that juveniles constitute substantial public threat that

RCW 13.40.040 lacks, thus the rule narrows the group of individuals who may be subject

to bench warrants. By requiring this heightened showing, the rule also invades the

prerogatives of the legislative branch, which made the policy decision to hold juveniles

accountable for their offenses. JuCR 7.16 also frustrates the executive branch from

carrying out its duty to prosecute cases such as a juvenile who fails to appear at a court

proceeding and therefore commits the offense of bail jumping. These intrusions into the

legislative and executive branches violate the separation of powers. Because both the

statute and rule concern substantive matters, the statute prevails. See RCW 2.04.190,

.200. I would therefore affirm the Court of Appeals.

I would also take the opportunity to reexamine our rule making precedent, retract

the seemingly limitless power this court has claimed to set procedural rules, and adopt a

23 No. 103006-1 Madsen, J., dissenting

more principled view of that power limited to regulating internal court business and

protecting the judiciary in the performance of its constitutional duties.

With these considerations in mind, I respectfully dissent.

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24 State v. A.M.W., No. 103006-1 (Stephens, C.J., concurring in dissent)

STEPHENS, C.J. (concurring in dissent)—I largely concur with Part A of the

dissent. There is a conflict between JuCR 7.16 and RCW 13.40.040 with respect to

the circumstances under which a juvenile may be taken into custody by court order.

While aspects of the court rule may be procedural, the provisions that clash with the

statute fall squarely within the ambit of substantive law, and the rule must yield to

the statute. I would end the analysis there.

Distinguishing procedural and substantive provisions is not always easy, but

here the court rule establishes new standards that qualitatively change the class of

people for whom a warrant can issue. The majority is correct that for some

juveniles, a court will be able to make the requisite findings under both the court rule State v. A.M.W., No. 103006-1 (Stephens, C.J., concurring in dissent)

and statute, and issue a valid warrant. Majority at 22. But the majority is incorrect

in concluding that there is no conflict. For a different group of juveniles—those

who have failed to appear in court or violated a court order but are not found to pose

a serious threat to public safety—a court would not be able to issue the warrant

authorized under the statute without violating the court rule.

This clash distinguishes the situation from State v. Thomas, 121 Wn.2d 504,

851 P.2d 673 (1993), which concerned the requirements for execution and return of

a search warrant. There, as the majority acknowledges, the “triggering dates” for

the time limits in both the statute and court rule were “not necessarily apparent” from

the plain language. Majority at 23. We were able to insert triggering events to

harmonize the statute and court rule, resulting in a scheme that allowed law

enforcement to comply with the requirements of both the statute and the court rule

in all cases. In other words, absent unforeseen circumstances, law enforcement

should always be able to execute a warrant within 10 days of issuance and return

that warrant within 3 days of execution. In contrast, JuCR 7.16 is unambiguous and

there is no missing language. It states that “[n]o new warrants shall issue” unless

the requisite finding is made of a “serious threat to public safety.” JuCR 7.16(a)-

(b). The statute, on the other hand, authorizes a warrant without such a finding.

See RCW 13.40.040(1)(a). Thus, when a court finds probable cause that a juvenile

has violated a court order but is unable to make a finding that the individual State v. A.M.W., No. 103006-1 (Stephens, C.J., concurring in dissent)

circumstances of the court order violation or failure to appear pose a serious threat

to public safety, the court cannot issue a warrant that comports with both the statute

and the court rule. The statute and court rule cannot be harmonized under that set

of facts, meaning there is a conflict.

True, bench warrants are a form of court process, but it does not follow that

all standards governing the requirements for issuing a warrant are necessarily

procedural. See majority at 13 (quoting RCW 2.04.190), 15 (quoting State v.

Fields, 85 Wn.2d 126, 129-30, 530 P.2d 284 (1975)). The dissent persuasively

explains the distinction. A rule that concerns the form or timing of issuing a warrant

and bringing the defendant into court would be undoubtedly procedural. For

example, a court rule could allow a warrant to be issued electronically or require

execution of a bench warrant within a particular time frame. But a court rule that

concerns “the grounds on which a warrant may issue at all” is undoubtedly

substantive in that it defines the requirements for bringing a person into custody.

Dissent at 7. The “serious threat to public safety” requirement in JuCR 7.16 is no

less substantive than a rule changing the standard from probable cause to clear and

convincing evidence in order for a warrant to issue. 1

1 I would not reach the issue of whether the real-world effects of a rule can “transform” an otherwise procedural one into a substantive one. See dissent at 8-10; majority at 17-19. State v. A.M.W., No. 103006-1 (Stephens, C.J., concurring in dissent)

Moreover, the requirement that JuCR 7.16 adds for issuance of a warrant

requires a factual finding based on the effects of the juvenile’s conduct and behavior.

Attaching legal consequences to a person’s conduct and behavior is quintessential

substance. This is true whether that consequence is punishment itself or merely

being brought into court to face potential punishment. Cf. Schriro v. Summerlin,

542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) (“A rule is substantive

rather than procedural if it alters the range of conduct or class of persons that the law

punishes.”). Based on the majority’s broad definition of procedure, one might

ponder whether a court rule could add additional requirements for imposing certain

sentences authorized by the legislature.

Both the majority and dissent discuss the origins and boundaries of inherent

judicial authority and court rule making power, but I do not believe that discussion

is necessary to resolve this case.2 Judicial restraint should be at its highest when

deciding the validity of a rule we ourselves adopted. I would hold that the statute

and the court rule here conflict and that the court rule is substantive because it

2 In the course of their discussion, both the majority and dissent go beyond the parties’ arguments and raise issues sua sponte—the majority asserting the court rule and statute can be harmonized and the dissent questioning the source of the court’s rulemaking power. Contrast majority at 20 (acknowledging “[t]he parties both argue that the rule and the statute cannot be harmonized”) with id. at 22-23 (concluding there is no conflict). See also dissent at 18-22 (calling to disavow precedent cited by both parties). I would stick to the issue presented by the parties and decide this case solely on the basis of the conflict between substantive provisions of the statute and court rule. State v. A.M.W., No. 103006-1 (Stephens, C.J., concurring in dissent)

qualitatively changes the class of juveniles for whom a warrant can issue based on

their conduct and behavior. Therefore, the court rule violates the separation of

powers as described in our precedent and must yield to the statute. I respectfully

concur in the dissent.

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