PRESS Memorandum of Law to Gov - AG Re Tim Rasmussen

8/10/2019 PRESS Memorandum of Law to Gov - AG Re Tim Rasmussen

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Memorandum

of

Law in Support

of

First Amendment Criminal Complaint

CrRU 2.2(a) and

CrR

2.2(a)

Black's Law Dictionary 6

th

Ed. Defines "Complaint" In criminal law, a charge preferred before a

magistrate having jurisdiction (no oath

=

no authority

=

no jurisdiction

=

no immunity) that a person

named

(or an unknown person)

has committed a specified offense,

with

an

offer to

prove

the

fact,

to

the end

that

a prosecution may be instituted. The complaint can be "taken out"

by the

victim, the police

officer, the district attorney,

or

other interested party. Although the complaint charges

an

offense, an

indictment or information may be

the

formal charging document.

Black's

Law

Dictionary 6

th

Ed. Defines "Complainant"

One

who applies to the court for legal

redress by filing complaint (i.e. plaint iff). Also, one who instigates prosecution or who prefers accusation

against suspected person.

Fair Warning

Fair warning of Constitutionally protected Rights as interpreted by the united States supreme

court, see U.S.

v.

Lanier (1997) 117

S

Ct. 1219, 520 U.S. 259, 137 L

Ed.2d

432, on remand 114 F.3d 84,

on remand 120 F.3d 640, on remand 123 F.3d 945.

The first amendment Right to file a criminal complaint with a reasonable

basis

is well settled in

United States

v.

Hilton, 710 F.2d 1106 (1983) and Bill Johnson Restaurants, Inc.

v.

NLRB 461 U.S. 731,

743, 103 S. Ct. 2161, 76 L Ed.2d 277 (1983), when they stated, "Although Bill Johnson's Restaurants

appears to

be

the most definitive statement on this issue, other cases have impliedly, if not expressly,

held that the first amendment right to petition

is

broad enough to protect an individual's right to file a

suit with reasonable

basis

in a state or federal tribunal. See Gregory v. City

of

Chicago, 394 U.S. 111,

89

S.

Ct.

946, 948, 22

L. Ed.2d

134 (1969)."

The courts are bound

by

all decisions of the supreme court of the United States. See

Agostini

v.

Felton, 521 U.S. 203, 237-288 1997); State

Oil

Co.

v.

Khan, 522

U.S.

3, 2

(1997)

...

, it is this Court's prerogative alone

to

overrule one

of

its precedents.

I

The Washington supreme court has also ruled as to these interpretations.

State v. Laviollette,

118

Wn.2d 670, 826 P.2d 685 [No. 58076-0 En. Banc March 19,

1992J State courts must follow interpretations of federal constitution

m de

by the

United States Supreme Court.

I

State

v.

Pavelich, 150 Wash. 411, 273 P 182 1928) - The court has no authority to

abrogate by rule

a

right guaranteed by the constitution. I

The above case law confirms every Citizen has a Right

to

file a criminal complaint in any state or

federal tribunal, under the interpretation given by the United States Supreme Court

of

the First

Amendment Right

"to

petition the Government for a redress of grievance." In Bill Johnson's Restaurants,

Inc. v. NLRB 461 U.S. 731, 734, 103 S. Ct. 2161, 76 L.

Ed.2d

277 (1983), when they stated, " ... the first

Memorandum of Law in Support of First Amendment Criminal Complaints

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amendment

right

to

petition

is

broad enough

to

protect an individual's right

to

file

a

suit with reasonable

basis

in

a

state

or federal tribunal. See Gregory

v

City

of

Chicago, 394

U S 111, 89 S Ct 946, 948, 22 L

Ed.2d 34

(1969)

A complaint is not the same thing as

an

information or indictment , a complaint can be taken

out

by the victim, prosecutor, police officer or an interested party. See Black's Law Dictionary 6

th

Ed.

Former

RCW

10.16.010 was superseded, not repealed in 1984 by JCrR 2.02.

When portions

of a statute in

conflict with court rule are superseded

by the

rule, other

portions of the same

statute

dealing with mat ters upon which the comparable rule is

silent are not overruled

and

remain in effect. Malott

v

Randell

(1974)

11 Wash. App.

433,

523 P.2d 439.

This case confirms

th t

it

is

still the duty of the judge to write the complaint and then have the

complainant sign it.

See - Author's Comments

-

CrRU 2.2

2

History of CrRU 2.2

CrRU

2.2

was adopted

in

987 as part of

a

new

set of criminal rules for courts of limited

jurisdiction.

[FN

117J When

CrRU 2.2

was first proposed to the Supreme Court

in 1986,

the proposed was

accompanied by the following drafter's comment. Task

Force

Comment

to

Rule 2.2.

This

rule is similar to

CrR 2.2

incfuding several of the

amendments

proposed

by

the Court Rules and

Procedures Committee and recentlv adopted bv the Supreme Court. It replaces existing JCrR 2.02.

CrRU 2.1 c) only applies

to

misdemeanors upon which the prosecutor has discretionary authority,

whereas under CrRU 2.2 and

CrR

2.2 he has only ministerial duties.

The next case relates directly to the words may and shall as used in Court

Rules

CrRU 2.2 a) and CrR

2.2

a).

May should

be

construed as must or shall , where public interest or rights are

concerned, and

the

public or private persons have de jure right which can be protected

only by such construction. Buell

v

City

of

Toppenish,

24 P 431, 174

Wash.

79 (1933).

When right

of

anyone under a statute depends upon giving word shaff an imperative

construction, shaff

is

presumed

to

have been used

in

reference

to

that

right or benefit,

and it receives mandatory interpretation. Jordan

v

O'Brien, 486 P.2d 290,

70

Wash.

d

406 (1971).

One final note on filing an information or indictment, neither can be filed without some type of

sworn statement by witness, Complainant .

Memorandum

of

Law in Support

of

First Amendment Criminal Complaints

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No

Immunity

Neither defacto, nor criminal usurpers at any level of government have

immunity

from civil or

criminal liability. Only past acts of defacto officers are considered as valid, for the protection of innocent

third parties, but does not protect a defacto officer or criminal usurper, when acting with knowledge,

from civil or criminal liability.

The people as complainants are presenting these Criminal Complaints and sworn declarations

in support as natural born men and women according to their

1s

t

Amendment protected Rights as

defined in United States

v

Hilton, 710 U S 1101 (1983), former RCW 10.16.010 which

was

superseded,

not

repealed by Court Rules

CrR

2.2(a) and

CrRU

2.2(a},

and

interpreted

by:

Malott v Randall (1974) 11 Wash. App. 433, 523 P 2d 439 - When portionsof a statute

are superseded by the rule, other portions of the same

statute

dealing with matters upon

which the comparable rule is silent are

not

overruled and remain in effect.

Since

the United States supreme court has interpreted the 1st Amendment Right to redress of

grievance

as

being able

to

file criminal charges

with

a reasonable basis in any State

or

Federal tribunal in

United States

v

Hilton, 710 U S 1102 (1983), this case controls.

Rulings of the United States Supreme Court construing the

First

Amendment are binding

upon the state courts. Orians

v James

(1974) 84 Wash.2d 819, 529

P 2d

1063.

State courts must follow interpretations

of

federal constitution

made by

the United

States Supreme Court. State v Laviollette, 118 Wn.2d 670, 826 P 2d 685 [No. 58076-0

En Bane March 19, 1992].

Now, since both

CrR

2.2 and

CrRU

2.2 allow the filing of a complaint, and a complaint is defined

in law in Black's 6

t

as:

In criminal law, a charge preferred before a magistrate having jurisdiction,

that

a

person named (or an unknown person)

has

committed a specified offense, with an offer

to

prove the fact,

to

the end

that

a prosecution may be instituted. The complaint can be

taken out by the victim, the police officer, the district attorney, or other interested

party.

The Washington supreme court has

ruled

as to

which controls, the Constitution or a statute.

The court has no authority to abrogate by rule a right guaranteed by the constitution.

State

v

Pavelich, 150 Wash. 411,273

P

182 (1928).

The federal supreme court

has

also ruled regarding conflicts between the federal

constitutionally protected rights and state law.

The assertion

of

federal rights, when plainly and reasonably made, is not

to

be defeated

under the name of local practice.

Davis v Wechsler, 263 U S

22

at 24

With

regard t the U S Constitution, it is elementary

that

a right secured or protected

by that document cannot be overthrown or impaired by any state police authority.

Memorandum

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Law in Support of First Amendment Criminal Complaints

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Connolly

v.

Union Sewer Pipe Co., 184

U.S.

540; Lafarier

v.

Grand Tryck R.R.

Co.,

24

A.

848; O'neil v. Providence Amusement

Co.,

108

A.

887.

These complaints and declarations are submitted under penalty

of

perjury and stands as truth

until rebutted by evidence of equal standing.

Indeed no more than affidavit

is

necessary

to

m ke

a prima facie case.

U.S.

v. Kis,

658

F.2d

536

CA7

1981) cert. den., 50 U.S.L.W. 2169 (1982); however

a

declaration may be

used instead of

an

affidavit. Summers

v. U.S.

Dept. of Justice, 776

F.

Supp. 575, 577

D.C. 1991) 99.

The Washington legislature and the courts ruled

as to what

constitutes a crime.

RCWA

9A.04.030 - For purposes

of RCW

9.01.050(1) (now 9A.04.030), which permits

the

punishment

of any person

committing

any crime

in whole or in part within the

state,

a crime is committed in part when any essential element of it

as

opposed to

mere preliminaries is committed within the state.

State

v.

Swanson (1976) 16

Wn.App. 179, 554

P.2d

364.

RCWA 9A.04.040

In

part - 1)

An

offense defined by this

title

or by any other statute of

this state,

for

which a sentence of imprisonment is authorized constitutes a crime.

To

constitute a crime, the act or omission must be forbidden by law and punishable on

conviction. State v. Truak (1924) 130 Wn. 69, 226 P. 259, 33 ALR 1206.

Attempt to commit crimes constitutes act or omission forbidden by law, within ambit

of

this statute. State

v.

Garman (1969) 76 Wn.2d 637, 458

P.2d

292.

Definition

of

crimes and their elements, within constitutional perimeters,

is

a matter

within the sound discretion

of

the legislative branch.

State v. adam (1974) 83 Wn.2d

541, 520 P.2d 152, cert. den. 419 U.S. 1013,42 L Ed.2d 287, 95 S. Ct. 333.

Whether or not

an

event

is

a crime within the meaning

of

RCW

9.01.020 (now

9A.04.040)

is

a question

of

law and

is

unaffected by policy considerations, age

of

the

statute, or the frequency

of

enforcement

of

it. Helland

v.

King County Civil Service

Com.

(1975) 84 Wn.2d 858, 529

P.2d

1058.

See

also RCW 9A.04.070 - Who amendable to criminal statutes; and RCW 9A.40.080 Limitations

of

actions - (Public officers ten years).

Black's Law Dictionary 6

t

Ed. Defines Criminal malversion A broad category

of

corrupt official

practices.

Black's

6

th

defines Dulocracy A government where servants and slaves have

so

much license

and privilege

that

they domineer.

RCW 10.16.010 - Complaint - Arrest - Witnesses.

Memorandum of

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Upon complaint being made

to

any justice of the peace, or judge of superior court, in open

court, or in vacation, that a criminal offense has been committed, he shall examine on oath the

complainant, and any witness provided by him, and shall reduce the complaint to writing, and shall

cause

the same

to

be subscribed by the complainant, and if it shall appear

that

any offense has been

committed of which the superior court has exclusive jurisdiction, the magistrate shall issue a warrant

reciting the substance

of

the accusation and requiring the office

to

whom

it

shall

be

directed

forthwith

to take the person accused and bring him before the person issuing the warrant, unless he shall be

absent or unable

to

attend thereto, then before some other magistrate of the county, to be dealt with

according

to

law, and in the same warrant may require the officer

to

summons such witnesses as shall

be therein named, to appear and give evidence on the examination. Rules of court:

This section superseded by

JCrR

2.02 - (1984).

See: (1983 Ed.) Part V JCrRO, Vol. 0 RCW - p. 428) comment under Rule 2.02 Warrant or

Summons upon complaint - (Supersedes

RCW

10.04.010, .030, 10.16.110)

4B WAPRAC CrRU 2.2

4B Wash. Prac.

Rules

Practice CrRU 2.2 7th

Ed.)

p. 3

Author s Comments

2. History of CrRU 2.2

CrRU was adopted in 1987 as part of a new set of criminal rules for courts of limited jurisdiction

F 117). When CrRU was first proposed to the Supreme Court in 1986, the proposed rule was

accompanied by the following drafter s comment:

Task

Force Comment to Rule 2.2

This rule is similar

to

CrR 2.2 including several of the amendments proposed by the Court Rules

and

Procedures Committee and recently adopted

by

the Supreme Court. t replaces existing JCrR 2.02.

Now that it has been established and supported by court rule and case law

that

it

is

a first

amendment Right for a private Citizen

to

file criminal charges with a reasonable basis, even felony

charges, we wi ll address the ministerial duties

of

the prosecutor and sheriff.

RCW 36.27.020 Duties. The prosecuting attorney shall:

(6) Institute and prosecute proceedings before magistrates

for

the arrest

of

persons

charged with or reasonably suspected of felonies when the prosecuting attorney has

information that any such offense has been committed and the prosecuting attorney

shall for that purpose attend when required by them if the prosecuting attorney is not

then in attendance upon the superior court:

As shown above the duty of the prosecuting attorney regarding the institution and prosecution

of

felony charges

is

a ministerial

duty

and not a discretionary act.

Memorandum of Law

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"Discretionary acts involve the establishment of policy, while ministerial acts implement

established policy." Hoquiam v. Grays Harbor County, 24 Wn.2d 533/ 540 (1946); Burg v.

Seattle,

32

Wash. App. 286 (1982).

A prosecuting attorney can file an information without a judge/s permission, but then a judge

can

dismiss the information if he believes that there is not enough probable cause to proceed. But, on

the other hand, RCW 9.94A.411 (Evidentiary sufficiency - (1) Decision not

to

prosecute) allows the

prosecuting attorney discretion as

to

prosecution on misdemeanors and gross misdemeanors, but as in

the defined duties under

RCW

36.27.020(6)/ section (2) Decision

to

prosecute states in part-

(a) Standard:

Crimes against persons will e filed if sufficient admissible evidence exists, when

considered with the most plausible, reasonably foreseeable defense that could

be

raised

under the evidence, would justify conviction by a reasonable and objective fact finder.

Crimes against property/other crimes

will e

filed....

The section following (2) (a) above details the police investigation and the prosecuting attorneys

further duty

to

ensure that a thorough investigation has been conducted, and Per-Fling Discussions with

Victims:

Now,

if RCW

36.27.020(6) and RCW 9.94A.411 leave any doubt as

to it

being a ministerial

(mandatory) duty on the prosecuting attorney

to

institute and prosecute all felonies that come

to

his

attention with a reasonable basis, RCW 10.16.110 leaves no room for doubt.

RCW 10.16.110

Statement of prosecuting attorney if no information filed - Court action.

t shall be the duty of the prosecuting attorney of the proper county to inquire into and

make full examination of all the facts and circumstances connected with any case of

preliminary examination, as proVided by law, touching the commission of any offense

wherein the offender shall

be

committed to jail, or become recognized or held to bail;

and if the prosecuting attorney shall determine in any

such

case that an information

ought not to be filed, he or she shall make, subscribe, and file with the clerk of the court

a statement in writing containing

his

or her reasons, in fact and in law, for not filing an

information in such case, and

such

statement shall

be

filed at and during the session of

court at which the offender shall be held for his or her appearance: PROVIDED, That in

such case such court may examine such statement, together with the evidence filed in

the case, and if upon such examination the court shall

not

be

satisfied with such

statement, the prosecuting attorney shall be directed by the court

to

file the proper

informat ion and bring the case to trial.

The duties defined above are almost word fOi word as when enacted in 1890, and the words

used cannot legally be twisted and distorted by corrupt and incompetent persons assuming the offices

of

judges and prosecutors.

Memorandum

of Law

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Also,

RCW

10.16.010 was enacted in 1881

as

territorial law, and continued almost unchanged

until it was superseded (again,

not

repealed) in 1984, and since this RCW relates to the exercise of a

Constitutionally protected Right, its conversion

to a cour t rule cannot diminish

that

Right.

State ex reI. Brown v. Warnock, 12 Wn.2d 478, If a prosecuting attorney refuses to

perform a duty which

is

enjoined upon him by law, performance may be compelled

by

mandamus. When it

is

sought by mandamus to compel a prosecuting attorney to

institute an action, the petition must disclose

that

sufficient facts were laid before the

prosecuting attorney to warrant his instituting the action, and that he failed to do so. If

a prosecuting attorney is vested with discretion in determining whether in any particular

instance he will perform the act in question, mandamus may not issue

to

compel him to

do so; however, when the statute under which the prosecuting attorney

is

required to

commence

an

action provides that the action may be instituted at the instance of the

prosecuting attorney or

at

the direction of the court,

ultimate

discretion in

the

matter

is

vested in the court and not in the prosecuting attorney, who may, on refusal to act,

be compelled by order

of

the court

to

perform his duty. 5 Bancroft's

Code

Practice, p.

5103, 3824; Rem.

Rev.

Stat., 1014, 1034, 1035; State

ex

reI. Gilbert v. Prosecuting

Attorney, 92 Wash. 484, 159

Pac.

761; State

ex

reI. Cummings

v.

Johnson, 105 Wash.

93,

177

Pac.

699; 38 C.

J

623, 656; State

ex

reI. Cummings v. Blackwell, 91 Wash. 81, 157

Pac.

223; Thomas

v.

Fuller, 166

La.

847, 118 So. 42.

Doubtless the legislature in enacting the statute Rem. Rev. Stat., 1035) contemplated

a situation, like

that

in

the case

at bar, in which the prosecuting attorney might not

deem it his duty

to

file the information, yet a case, as stated in State ex reI. Gilbert v.

Prosecuting Attorney, 92 Wash. 484, 159 Pac. 761,

in which the rights involved might be

of

such public moment

as

to make it essential

that they

be

determined by the court after a full trial on the law and the facts. Hence

the legislature provided

that

the information may

be

filed by the prosecuting attorney,

not only whenever he deems it his duty

to

file it, but also whenever he 'shail be directed

by the court or other competent authority.' Appellant argues that the use of the word

'may' in the opening line of the statute has a permissive significance and vests a final

discretion in the prosecuting attorney. But this cannot

be

so unless we strike from the

statute the clause last quoted.

On

the contrary, when that clause is considered it

is

clear

that

the word 'may'

is

used, not in the permissive, but in the alternative sense. That is

to

say, the information may be filed either at

the

instance of the prosecuting attorney or of

the court. Clearer terms than those

of

the statute could hardly be framed

to

deny a final

discretion

to

the prosecuting attorney and vest

an

ultimate discretion in the courts. The

statute neither says

nor

implies that the court may direct the prosecuting attorney

to

act only when that officer has fraudulently or

corruptly

refused to act. It distinctly

reposes the final discretion in

the

court, regardless of the attitude or motives of the

prosecuting attorney.

Romano

v. Yakey,

43 Wash. 15, Upon this proposition there

is

an irreconcilable conflict

in the decisions

of

the courts of the different states. In Maine, Massachusetts,

Pennsylvania, Michigan, and California, they fully support the position of respondents,

and hold that to entitle a private citizen to move for and prosecute the writ, he must

show that he has some private or special interest to

be

subserved, or some particular

Memorandum of Law in Support of First Amendment Criminal Complaints Page 7 of 10


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right to be pursued or protected, independent

of that

which he holds in common with

{*19} the public at large, and that it is for the public officers to apply when public rights

alone are

to

be subserved.' (Sanger v County Commissioners

of

Kennebeck,

25

Me.

291;

Heffner

v.

Commonwealth,

28 Pa. 108;

Wellington's Petitioners,

16 Pick. 87;

People

v.

Regents

of

University,

4

Mich.

98; 45

Cal.

607.)

But we think the better and

more reasonable rule

is

established by the decisions

of

the courts

of

New

York,

Ohio,

Indiana, Illinois, and Iowa, which hold the opposite doctrine, and maintain that when

the question is one of public right, and the object

of

the mandamus to procure the

enforcement

of

a public duty, the relator is

not

required

to

show that he

has

any legal

or

special interest in the result, it being sufficient i f he shows

that

he is interested, as a

citizen, in having the laws executed and the right enforced. (People v.Collins, 19 Wend.

56;

People v. Halsey,

37

N Y

344;

State exrel. Huston

et

al. v. Commissioners

of

Perry

County,S Ohio

497;

The County

of

Pike v. The State, 11 III.

202;

City

of

Ottawa v.The

People, 48 Id. 233; Hall ex reI. v. People, 52 Id. 307; Hamilton v. The State, 3 Ind. 452;

State

v.

County Judge

of

Marshall County, 7 Iowa 186.)

Section

6695, Bal.

Code (P.e., 3114L permits any person

to

make complaint

that

a

criminal offense

has

been committed, and

if

the magistrate

to

whom the complaint

is

made wrongfully refuses

to

act in the matter,

we

think the

party

applying for the

warrant has a sufficient interest in the performance

of

the public

duty to

compel

action

by mandamus. This

is

especially true where

it is

made to appear that the

prosecuting attorney

is

resisting the application.

The second objection is that it does

not

appear from the petition

that

the respondent

refused to hear or give proper consideration to the evidence presented.

The

duty of

every magistrate

to

whom complaint

is

made

is

plain and specific: He shall examine

on

oath the complainant, and any witness provided by him, and shall reduce the complaint

to writing, and shall cause the same to be subscribed by the complainant; and if it shall

appear

that

any offense

has

been committed

of

which the superior court

has

exclusive

jurisdiction, the magistrate shall issue a warrant reciting the substance { 20} of the

accusation, etc. Bal. Code, 6695

P.e.,

3114). It is the duty of every magistrate to

see

that

false charges are not preferred against the innocent, and that criminal process

is

not

resorted to,

to

subserve personal or private ends, but

it

is equally his duty to see

that the guilty are brought

to

judgment. He may consult and advise with the prosecuting

attorney, and it is proper that he should do so, especially where questions of law are

involved, but, in the end, he must determine

for

himself whether an offense has been

committed of which the superior court has exclusive jurisdiction, and,

if

he so finds,

he

must issue his warrant, whether the prosecuting attorney assents

or

dissents.

The magistrates

of

the state are conservators

of

the peace, in fact

as

well

as

in name,

and, in the discharge

of

their duties, they are under the direction and supervision of no

other officer. Their orders may

be

reviewed on habeas corpus, [Bal. Code,

5827 P.e.

1377)], or

upon the statement filed by the prosecuting attorney containing his reasons

in fact or in law for

not

filing an information, [Bal. Code, 6835 P.e. 2082)], but not

otherwise.

In

this state where grand juries are the exception and

not

the rule, i t is

of

the

highest importance

that

every charge

of

violation

of

the criminal laws

of the

state

should be carefully, conscientiously, and fearlessly investigated by the officers charged

with that duty, and the theory that the prosecuting attorneys

of

the several counties

Memorandum of Law in Support

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First Amendment Criminal Complaints Page 8 of 10


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must determine first and finally who sh ll be prosecuted and who shall not finds no

support in the law. In the light of what we have said, did the magistrate to whom the

application

in

question

was

made perform or attempt to perform the duties enjoined

upon him by law? Manifestly he did not.

He

simply determined that

it was

the duty

of

the prosecuting attorney

to

make the investigation, and

th t he

would not interfere

with the duties

or

doings

of

that officer.

The

respondent's brief states

th t he

took the

matter under advisement {*21} and determined the application

on

its merits, and in

disposing

of

the question,

said

many things and gave many reasons which do

not

appear

in the application before us.

These

facts,

if

true, should appear in the return to the writ

and not in argument. This court must accept the record as it finds

it,

and all defenses to

the application must

be

interposed

t

the same time.

State ex reI Murphy v. Taylor,

101

Wash.

148,

The statute relating to the procedure

in

justices' courts in cases of persons accused

of

crime provides SS

1925

that, whenever a

complaint on oath in writing

is

filed with a justice of the peace charging any person with

the commission of a crime or misdemeanor of which he

has

jurisdiction, the justice shall

issue a warrant

for

the arrest of such person and cause such person

to

be brought

forthwith

before him

for

trial.

By 1926

and

1927,

it

is

provided that, in all trials

for

offenses within the jurisdiction of the justice, the defendant

or

the state,

if

either

so

desires, may demand a jury/ and

if

the defendant is found guilty the jury

or

the justice

as

the

case

may be shall

assess

the punishment; or

[SS 1928]

if,

in

their opinion, the

punishment they are authorized to

assess is not

adequate to the offense, they may

so

find, and in

such case

the justice shall order

such

defendant

to

enter

into

recognizance

to appear in the superior court of the county, and shall recognize the witnesses, and

proceed as in proceedings by a committ ing magistrate. Section

1949/

relating to the

examination

of persons charged with crime, reads as follows:

Upon complaint being made

to

any justice

of

the peace, or judge

of

the superior court/

that a criminal offense

has

been committed,

he

shall examine

on

oath the complainant,

and any witness provided by him, and shall reduce the complaint to writing, and shall

cause

the same

to be

subscribed by the complainant;

and if it

shall appear

th t

any

offense

has

been committed

of

which the superior court

has

exclusive jurisdiction, the

magistrate shall issue a warrant reciting the substance of the accusation, and requiring

the officer to whom

it

shall

be

directed forthwith to take the person accused and bring

him before the person issuing the warrant, unless he shall be absent or unable to attend

thereto, then before some other magistrate

of

the county, to be dealt with according to

law, and in the same warrant may require the officer to summon such witnesses as shall

be therein named, to appear and give evidence on the examination.

Stating the substance of these statutes in a more succinct form,

it

is therein provided,

1)

that justices

of

the peace have concurrent jurisdiction with the superior courts over

all

cases

of gross misdemeanor;

(2)

that, when a complaint is made before a justice

of

the peace charging a person with a gross misdemeanor, it

is

the duty of the justice to

issue a warrant for the arrest of the accused and cause the accused

to

be brought

before him for trial;

3) th t

when the accused is brought before the justice

for

trial for

an

offense within the concurrent jurisdiction

of

the superior court

he

is entitled

as of

right to

be

tried by a jury, and entitled

as of

right to have the jury determine whether

the

acts

constituting the offense

of

which

he

is accused

can be

sufficiently punished by

Memorandum

of Law in

Support

of


Page

9

of 1


10/10

the penalties the justice's court is empowered

to

inflict;

4) that

a justice

of

the peace

or

judge

of

the superior court when acting

as

a magistrate,

is

empowered

to

issue a

warrant

for

the arrest and examination

of

a person charged with crime only when the

crime charged is within the exclusive jurisdiction of the superior court; and (5) that a

magistrate

is

only empowered to transfer a

cause

for trial before a justice of the

peace

when the offense with which the accused

is

charged

is

within the exclusive jurisdiction

of

the superior court, and he finds during the course

of

the examination

that

the offense

actually committed is one within the jurisdiction of a justice

of

the peace and one which

would be sufficiently punished by the penalties a justice of the

peace

is empowered to

inflict.

b y

I

espectfully submitted this

e tday of

2014 by the people on Stevens County.

Memorandum

of

Law in Support

of


Page

10 of 1

Documents

PRESS Memorandum of Law to Gov - AG Re Tim Rasmussen