In Re The Petition To Convene A Grand Jury, Barnes Michael Ware

Filed
Washington State
Court of Appeals
Division Two

June 26, 2018

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
In the Matter of the Petition of No. 50285-2-II
BARNES MICHAEL WARE to Convene a (Consolidated with:
Grand Jury. No. 50877-0-II)

In the Matter of the Application of
PUBLISHED OPINION
ERIKA JOHNSON for a Citizen’s Complaint.

LEE, J. — Following the Lewis County Prosecuting Attorney’s Office’s decision to not file

charges in an animal abuse case, two private citizens separately sought to independently initiate

criminal charges. In the first case, Erika Johnson filed a petition in district court, requesting

authorization to file a citizen’s complaint. After the district court denied Johnson’s petition,

Barnes Michael Ware filed a petition to summon a grand jury in superior court, based on the same

set of facts underlying Johnson’s petition. The superior court similarly denied Ware’s petition. In

these consolidated appeals, the appellants argue that the lower courts erred in finding that granting

their petitions would unconstitutionally violate the separation of powers. Johnson also argues that

the superior court, on review of the district court’s decision, erred in finding that the prosecutorial

standards did not warrant the filing of criminal charges through her petition.

We hold that the district court did not abuse its discretion in denying Johnson’s petition.

We also hold that the superior court did not abuse its discretion in denying Ware’s petition.

Accordingly, we affirm the district court’s dismissal of Johnson’s petition for issuance of a
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No. 50877-0-II

citizen’s complaint, and we affirm the superior court’s dismissal of Ware’s petition to summon a

grand jury.

FACTS

A. THE INCIDENT

On April 28, 2016, the Centralia Police Department responded to a report of animal abuse

at a Centralia apartment complex. The reporting party, Samantha Riggen, told officers that her

neighbors had tortured and killed her mother’s cat by throwing a rock at the cat and stabbing the

cat with a knife.

Officer William D. Phipps of the Centralia Police Department arrived on scene and was

met by a large group of residents from the apartment complex. Officer Phipps interviewed four

witnesses to the incident—one adult and three children. The adult, Alicia Schroeder, told Officer

Phipps that her daughter had come to her and told her that two men “were going to stab the cat.”

Clerk’s Papers (CP) at 29. Schroeder then ran to the back of the apartment complex and saw a

man she identified as Kyle Burke stab the cat in the neck and attempt to push the cat under a chain

link fence.

The three juvenile witnesses who witnessed the incident told Officer Phipps that Emily

Miller, another juvenile who lived in the apartment complex, had squeezed the cat, refused to let

go, and twice threw the cat up toward her mother, who was standing on a second floor balcony.

The girls informed Officer Phipps that at some point Burke threw a rock at the cat. After the cat

fell to the ground, the girls reported seeing Burke and a man identified as Richard Allshouse

running toward the cat with a knife. According to the girls, the two men were arguing about who

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would get to kill the cat first. The girls told Officer Phipps that Burke stabbed the cat and then

shoved its body under a fence.

Based on this information, Officer Phipps determined that there was probable cause to

arrest Burke for first degree animal cruelty. Officer Phipps placed Burke under arrest and had him

transported to Lewis County Jail.

Officer Phipps then went to the back of the apartment building and discovered that the cat’s

body had been removed from the fence and placed in a plastic garbage bag. Officer Phipps

removed the cat’s body from the bag and photographed its remains. Officer Phipps reported that

“[t]he only injury to the cat appeared to be to its head due to bleeding from the mouth and ears,”

and “[b]ecause of the blood I could not tell if there was a stab wound in its ears or not.” CP at 30.

Officer Phipps filled out an incident report detailing the facts set out above. His report

requested that this case be forwarded to the Lewis County Prosecuting Attorney’s Office.

B. PROSECUTOR’S OFFICE DECLINES TO FILE CHARGES

On April 29, the Lewis County Prosecuting Attorney’s Office sent a letter to the Centralia

Police Department, informing them that the prosecutor’s office was declining to file charges in

this case. In the letter, the prosecutor’s office explained that Burke’s “actions related to the

animal’s death are unclear, at best, and he denied even causing the death.” CP at 62. The letter

further explained that, “One account is that Mr. Burke stabbed the cat in the neck; however, when

Officer Phipps examined the cat’s body, he was not able to locate any stab wounds.” CP at 62.

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The letter also stated that the prosecutor’s office found the accounts of the three juvenile

witnesses to be the most credible and unbiased. However, those witness accounts “related that

another juvenile female caused the cat a substantial amount of suffering prior to Mr. Burke ever

becoming involved.” CP at 62. Specifically, the three juvenile witnesses stated that before Burke

arrived on scene, “the cat had been brutally squeezed, had been thrown or dropped from a second

story balcony at least twice, and had a stone dropped upon or thrown against its head.” CP at 62.

The prosecutor’s office stated that given these facts, it did not believe it would be possible to prove

to a jury beyond a reasonable doubt that Burke committed first degree animal cruelty.

The prosecutor’s office also cited the evidentiary issues in the case; namely, that the cat’s

body was not collected at the scene. Without the body, the prosecutor’s office would be unable to

show how the cat died. The letter explained that any effort to recover the cat’s body at this point

in the investigation would be fruitless because the cat’s body could have been tampered with since

the incident occurred.

The letter concluded, “What happened to this animal was deplorable, inhumane, and

without justification. Nevertheless, I cannot charge Mr. Burke with causing these harms without

solid evidence that he is the individual who caused them.” CP at 63.

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C. SUBSEQUENT INVOLVEMENT OF PRIVATE PARTIES

1. Barnes Michael Ware

Barnes Michael Ware is a retired police officer. His wife, Mary Ware,1 followed the

incident involving the cat on Lewis County Sirens.2 When Mary discovered that the cat’s body

had not been taken into evidence, she offered to take the cat and have him cremated.

On April 29, Ware and Mary went to the apartment complex to retrieve the cat’s body.

There, the two discovered that the cat’s body had already been removed from the trash and placed

into a garbage bag inside a cardboard box.3 Neither opened the box, but Ware had Schroeder

initial and date the box to show when he took charge of the box. Ware and Mary returned to their

residence and placed the box inside a spare refrigerator in their garage.

The next day, Ware met with Erika Johnson of Thurston County Animal Services at an

animal hospital in Olympia. Ware signed and dated the box when he released it into Johnson’s

custody.

2. Erika Johnson

Johnson is a former police officer and deputy sheriff in the State of Oregon. At the time

of this incident, Johnson worked as an animal services officer with Thurston County.

1
For clarity, this opinion refers to Barnes Michael Ware by his last name and Mary Ware by her
first name. We intend no disrespect.
2
Lewis County Sirens is an online “independent local news provider,” which provides news of
“crime, police, fire and courts” in greater Lewis County, Washington. LEWIS COUNTY SIRENS,
http://www.lewiscountysirens.com/ (last visited June 18, 2018).
3
The record does not show who removed the cat’s body from the trash, nor does it show when this
occurred. CP at 32.

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After Ware gave Johnson the box containing the cat’s body, Johnson took the box and

turned it over to an animal hospital to conduct a necropsy.4 The report following necropsy stated,

“To summarize the injuries, the cat suffered severe head and neck trauma. The exact cause of

death is either skull fracture, penetrating brain trauma, cervical spinal fracture or possibly choking,

due to the deep contusions and hemorr[h]age within the wall of the trachea and cervical deep

tissues.” CP at 33.

On June 28, Johnson met with the prosecutor’s office and the Centralia Police Chief. The

purpose of the meeting was to discuss the prior charging decision in the case. At the meeting, the

prosecutor’s office told Johnson that it did not believe there was sufficient evidence to prove

Burke’s intent. The prosecutor’s office also informed Johnson that it had referred Miller to the

Juvenile Division. The prosecutor’s office reiterated that it would not be filing charges in this

case.

3. Animal Legal Defense Fund

On November 22, the Animal Legal Defense Fund (ALDF)5 sent a letter to the prosecutor’s

office, urging the prosecutor’s office to bring charges against Burke. In the letter, the ALDF

outlined charging theories that it believed the prosecutor’s office could pursue. The letter then

explained how the necropsy report supported those charging theories.

4
Necropsy is an autopsy performed on an animal. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1511 (2002).
5
The ALDF is a nonprofit attorney organization dedicated to protecting and advancing the
interests of animals through the legal system. ANIMAL LEGAL DEFENSE FUND,
http://aldf.org/about-us/ (last visited June 18, 2018).

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The prosecutor’s office responded to the letter, explaining that it had again reviewed the

results of the necropsy, but was still declining to file charges. The prosecutor’s office explained

that “[n]othing in the report leads to any reliable, admissible evidence that Mr. Burke’s actions

constitute a crime beyond a reasonable doubt. What he did is, frankly, horrific. However, the

report itself cannot pinpoint, with certainty, what caused the death in this case.” CP at 70.

The prosecutor’s office informed the ALDF that it takes animal cruelty cases very

seriously, but also “must be mindful of the admissible evidence, the mandates imposed by statutes

and the burden of proof.” CP at 70. The prosecutor’s office reiterated that it was declining to file

charges in this case.

D. PRIVATE CITIZEN PETITIONS

1. Johnson’s Petition

a. Filing in District Court

On December 20, Johnson filed a petition for issuance of a citizen’s complaint under CrRLJ

2.1 (c). Under CrRLJ 2.1(c):

Any person wishing to institute a criminal action alleging a misdemeanor or gross
misdemeanor shall appear before a judge empowered to commit persons charged
with offenses against the State, other than a judge pro tem.

....

In addition to probable cause, the court may consider:

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

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

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(3) Whether a criminal investigation is pending;

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

(5) The availability of witnesses at trial;

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

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

If the judge is satisfied that probable cause exists, and factors (1) through
(7) justify filing charges . . . the judge may authorize the citizen to sign and file a
complaint.

Johnson argued that probable cause existed for filing charges of second degree animal

cruelty,6 taking, concealing, injuring, and killing of a pet animal,7 third degree malicious mischief,8

6
A person is guilty of second degree animal cruelty “if, under circumstances not amounting to
first degree animal cruelty, the person knowingly, recklessly, or with criminal negligence inflicts
unnecessary suffering or pain upon an animal.” RCW 16.52.207(1).
7
Under RCW 9.08.070 (1)(c), a person is guilty of taking, concealing, injuring, killing a pet animal
if he or she “[w]illfully or recklessly kills or injures any pet animal, unless excused by law.”
8
Under RCW 9A.48.090(a), a person commits third degree malicious mischief by “[k]nowingly
and maliciously caus[ing] physical damage to the property of another, under circumstances not
amounting to malicious mischief in the first or second degree.”

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and criminal conspiracy.9 Johnson sought to have criminal charges filed against Allshouse, Burke,

Miller, and Miller’s mother, Tina Miller.10

In support of her petition, Johnson filed several declarations of witnesses to the event.

Johnson also filed a personal declaration in which she detailed her background in investigating

animal abuse cases and declared that probable cause existed for the criminal charges she proposed.

The State filed a response in which it explained that the Lewis County Juvenile Court had

exclusive jurisdiction over Miller because she was under 12 years old at the time of the incident.

As to the other proposed defendants, the State argued that there was not enough evidence to prove

criminal activity beyond a reasonable doubt.

On December 27, the district court entered an oral ruling denying Johnson’s petition to

issue a citizen’s complaint. The district court ruled, “I don’t need to hear from any witnesses . . .

the matters were briefed very well by both sides.” CP at 141. The court stated, “I have looked at

the rule, I have read all the briefing, made an evaluation of probable cause for all the suggested

crimes put forth by [Johnson’s trial counsel] and Ms. Johnson, weighed the petition against any

prosecutorial standards under 9.94A.411, both to prosecute and not to prosecute.” CP at 141.

The district court further explained that it had “entertained other equitable considerations

such as the motivation of the complaining party” and “taken into consideration the professional

9
Under RCW 9A.28.040(1), “A person is guilty of criminal conspiracy when, with intent that
conduct constituting a crime be performed, he or she agrees with one or more persons to engage
in or cause the performance of such conduct, and any one of them takes a substantial step in
pursuance of such agreement.”
10
For clarity, this opinion refers to Emily Miller by her last name and Tina Miller by her first
name. We intend no disrespect.

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determination of the Lewis County Prosecutor’s Office.” CP at 141. The district court found that

there was “no willful disregard on behalf of the state of their oath or their duties, that this matter

was fully investigated both by the government and the assistance of private citizens.” CP at 142.

As a result, the district court ruled that it was “not going to allow the petition to proceed or sign

the complaint.” CP at 142.

b. Appeal to Superior Court

Johnson appealed the district court’s denial of her petition for issuance of a citizen’s

complaint to the superior court under RALJ 2.2 and RALJ 2.6. In her appeal, Johnson stated the

assigned errors “include, but are not limited to, the court’s undifferentiated and nonspecific

conclusion denying Ms. Johnson the right to file any charge against any of the potential defendants

under any of those statutes.” CP at 265-66. Johnson argued that “[w]hile the superior court

conducts de novo review, Ms. Johnson nonetheless alleges that Judge Buzzard committed clear

error and abused his discretion.” CP at 266. Johnson also argued that “nothing presented by Ms.

Johnson or [the prosecutor’s office] warranted denial of the petition.” CP at 285. She further

argued that prosecutorial standards under RCW 9.94A.411(2)(a)11 “mandated filing in this

instance.” CP at 286.

In response, the State filed a motion to dismiss Johnson’s RALJ appeal, arguing that there

was no appealable order because the district court ruling was made orally. The State also argued

11
Under RCW 9.94A.411(2)(a), “Crimes against property/other crimes will be filed if the
admissible evidence is of such convincing force as to make it probable that a reasonable and
objective fact finder would convict after hearing all the admissible evidence and the most plausible
defense that could be raised.”

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that Johnson was not the party in interest and could not appeal the decision because she was not

an aggrieved party under RALJ 2.1(a).12 Finally, the State raised for the first time a constitutional

challenge to CrRLJ 2.1(c). Specifically, the State argued that if the superior court were to overturn

the district court’s ruling, then it would be “overstepping into the exclusive authority vested by the

Washington State Constitution in the county prosecutor” and violate the separation of powers. CP

at 292-93.

The superior court found that the district court’s order denying Johnson’s complaint was a

final order because the decision terminated the case. The superior court further held that Johnson

was an aggrieved party and, therefore, had standing to proceed under RALJ.

The superior court then applied de novo review to the district court’s ruling, finding that

there was probable cause to believe that the individuals Johnson named had committed second

degree animal cruelty, taking, concealing, injuring or killing a pet, and third degree malicious

mischief. In considering the other factors enumerated in CrRLJ 2.1(5)(c), the superior court held

that nothing in the record suggested that an unsuccessful prosecution would subject the State to

costs or damage claims and that Johnson may or may not have alternative recourse under the laws.

The superior court also found that it did not appear that other criminal charges would be disrupted

by allowing a citizen’s complaint to be filed.

However, the superior court held that the most persuasive factor was consideration of the

prosecution standards under RCW 9.94A.411, which provides that crimes “will be filed if the

admissible evidence is of such convincing force as to make it probable that a reasonable and

12
Under RALJ 2.1(a), “Only an aggrieved party may appeal.”

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objective fact finder would convict after hearing all the admissible evidence and the most plausible

defense that could be raised.” The superior court agreed that “considering the multiple persons

who inflicted injury to the animal, the varying witness statements which a competent defense

attorney could discredit, and the inexact determination of which wound or wounds contributed to

the suffering and death of the cat,” the evidence was not of such convincing force to make it

probable that a reasonable and objective fact finder would convict. CP at 322.

The superior court also ruled, “Additionally, in that CrRLJ 2.1(c) allows the District Court

to authorize the filing of criminal charges by a party other than the prosecuting attorney, it

unconstitutionally violates the separation of powers doctrine.” CP at 322. The superior court

relied on State v. Rice, 174 Wn.2d 884, 279 P.3d 849 (2012) to hold that another branch of

government “cannot interfere with the core function that essentially defines a prosecuting attorney:

the exercise of broad charging discretion on behalf of the local community.” CP at 322.

Accordingly, the superior court affirmed the district court’s denial of Johnson’s petition for

issuance of a citizen’s complaint.

2. Ware’s Petition

The same day the district court denied Johnson’s petition for issuance of a citizen

complaint, Ware filed a petition to summon a grand jury under RCW 10.27.030. Ware’s petition

contained the identical 10 pages of factual background as Johnson’s petition.

Under RCW 10.27.030:

No grand jury shall be summoned to attend at the superior court of any
county except upon an order signed by a majority of the judges thereof. A grand
jury shall be summoned by the court, where the public interest so demands,
whenever in its opinion there is sufficient evidence of criminal activity or

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corruption within the county or whenever so requested by a public attorney,
corporation counsel or city attorney upon a showing of good cause.

In his petition, Ware argued that “the public interest demands convening of a grand jury”

and that “[t]he Lewis County Prosecuting Attorney’s Office’s decision not to charge Kyle Bobby

Burke raises a question of grave public concern.” CP at 2. Ware further argued that there was

sufficient evidence of criminal activity to warrant submission to a grand jury. Specifically, Ware

argued that there was sufficient evidence that Burke committed first degree animal cruelty13

because there was evidence that Burke inflicted substantial pain and caused physical injury to the

cat. In support, Ware attached declarations of the five witnesses to the incident, which showed

that Burke stabbed the cat and that the cat was seen moving following the stabbing.

The State filed a response, arguing that the superior court should not convene a grand jury

and should dismiss Ware’s petition. The State noted that Ware filed his petition within an hour of

the district court’s ruling dismissing Johnson’s petition for the issuance of a citizen’s complaint.

The State also argued that Ware’s petition was contrary to the purpose of grand juries, which are

“to serve law enforcement in combating crime and corruption.” CP at 85 (quoting RCW

10.27.010). The State reiterated that it did not believe that there was sufficient admissible evidence

in this case to sustain a criminal conviction.

13
RCW 16.52.205(1) states that “[a] person is guilty of animal cruelty in the first degree when,
except as authorized by law, he or she intentionally (a) inflicts substantial pain on, (b) causes
physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting
extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an
animal.”

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The State also argued that Ware did not have standing to bring the petition because there

was no evidence he owned the cat or that he lived in Lewis County. Though Johnson was not a

petitioner in this case, the State also challenged Johnson’s standing to bring a petition to summon

a grand jury.

In reply to the State’s response, Ware asserted that he had standing to bring the claim

because he “has paid local sales tax.” CP at 106. He further argued that RCW 10.27.030 does not

require he show residency in the county he seeks to file charges. CP at 106-07. Ware further

argued that “[t]he use of the phrase ‘public interest’ in RCW 10.27.030 contemplates that any

member of the general public may petition the court.” CP at 107.

Two days after Ware filed his reply to the State’s response, the State filed a supplemental

brief in opposition to a grand jury. There, the State argued that RCW 10.27.030 does not allow

private citizens or private attorneys to petition the court to convene a grand jury. The State then

asserted, for the first time, a constitutional challenge to Ware’s petition. The State argued that

Ware’s petition “constitute[ed] an unauthorized intrusion into the constitutional powers of the

elected prosecutor.” CP at 113. The State further argued that convening a grand jury by the

superior court at the request of a private citizen, without involvement of the county prosecutor,

was “an improper encroachment of the judicial branch on the executive branch.” CP at 113.

Ware filed a surreply, and, in addition to addressing the State’s arguments, asserted that

the State was not a party to this action and, therefore, had no right to file either its responsive brief

or its supplemental brief in superior court. Ware asked the court to disregard both of the State’s

responsive briefings.

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On April 21, 2017, the superior court entered an order denying Ware’s petition to summon

a grand jury. The superior court found that

Ware does not specifically allege corruption within the county, but rather focuses
on the criminal activity of one particular individual: Kyle Bobby Burke. Thus, we
focus our inquiry on whether Burke was involved in criminal activity within the
county, and whether the public interest demands that a grand jury be summoned to
investigate this criminal activity.

CP at 129.

The superior court acknowledged that “the death of [the cat] involved criminal conduct is

not disputed.” CP at 129. The superior court then considered the involvement of the prosecutor’s

office in investigating case and its reasons for declining to file charges. The superior court ruled

that “Ware . . . asks us to summon a grand jury, with the obvious objective of indicting Burke on

criminal charges. We decline this invitation because doing so would invade the Prosecuting

Attorney’s Office’s discretion, vested by the Washington State Constitution.” CP at 130.

The superior court further ruled, “Mindful that our Supreme Court continues to recognize

the unique and exclusive power vested in the prosecuting attorney to exercise discretion as to

which individuals are charged and with which offenses, we hereby determine that to usurp this

executive power does not serve the public.” CP at 131. The superior court concluded that its

ruling did not shield the elected prosecutor from public review because “prosecuting attorneys are

accountable to the voting public—a bedrock of Democracy, as is the fundamental principal of

separation of powers, which underlies our decision.” CP at 131.

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E. APPELLATE HISTORY

Ware filed a notice of appeal to this court, seeking review of the superior court’s denial of

his petition to summon a grand jury. Johnson filed a petition for review with the Washington

Supreme Court, seeking review of the district court’s order denying her petition and the superior

court’s order affirming the district court’s denial of her petition for the issuance of a citizen’s

complaint.

The State filed a motion in the Supreme Court to consolidate Johnson’s appeal with Ware’s

appeal under RAP 3.3(b). The court granted the motion to consolidate and ordered this court to

consider both appeals.

ANALYSIS

A. JOHNSON’S PETITION TO FILE A CRIMINAL CITIZEN’S COMPLAINT14

Johnson assigns error to the superior court’s ruling affirming the district court’s dismissal

of her petition to file a citizen’s complaint. Johnson contends that the superior court erred in (1)

declaring CrRLJ 2.1(c) unconstitutional facially and as applied, and (2) finding that the statutory

prosecutorial factors did not warrant the filing of criminal charges in this case. We hold that the

district court did not abuse its discretion in denying Johnson’s petition to file a citizen’s complaint.

14
On appeal, the State challenges both Johnson and Ware’s standing to appeal the superior court
order as aggrieved parties. In Johnson’s case, the State challenged Johnson’s standing for the first
time on appeal. In affirming the district court’s ruling, the superior court held that Johnson was
an aggrieved party and had standing to appeal denial of her petition. In Ware’s case, the superior
court never addressed the State’s standing argument, but instead decided the case on the merits.
Ware argues that the State waived its standing challenge. We exercise our discretion to review
this appeal on its merits. RAP 1.2(a).

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1. Standard of Review

“Appellate review of a district court’s ruling, here and in the superior court, is governed by

the standards contained in the Rules for Appeal of Decisions of Courts of Limited Jurisdiction

(RALJ).” State v. Thomas, 146 Wn. App. 568, 571, 191 P.3d 913 (2008), review denied 165

Wn.2d 1046 (2009). On review, this court “shall accept those factual determinations supported by

substantial evidence in the record (1) which were expressly made by the court of limited

jurisdiction, or (2) that may reasonably be inferred from the judgment of the court of limited

jurisdiction.” RALJ 9.1(b).

We find that the applicable standard in reviewing the denial of a petition to file a citizen’s

complaint under CrRLJ 2.1(c) is abuse of discretion. In interpreting a court rule, we “must ‘give[]

effect to the plain language of a court rule, as discerned by reading the rule in its entirety and

harmonizing all of its provisions.’ ” State v. Otton, 185 Wn.2d 673, 683, 374 P.3d 1108 (2016)

(alteration in original) (quoting State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007). “

‘Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on

review except on a clear showing of abuse of discretion.’ ” In re Parentage of T.W.J., 193 Wn.

App. 1, 6, 367 P.3d 607 (2016) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d

775 (1971)).

The plain language of CrRLJ 2.1(c) unambiguously vests the district court with discretion

to authorize a citizen to file a citizen complaint. The rule states that the judge “may require the

appearance to be made on the record,” “may consider any allegations on the basis of an affidavit

sworn to before the judge,” and “may also require the presence of other potential witnesses.”

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CrRLJ 2.1(c) (emphasis added). The rule further states that “[i]n addition to probable cause, the

court may consider” the seven factors outlined in the court rule. CrRLJ 2.1(c) (emphasis added).

Finally, the rule provides that “[i]f the judge is satisfied that probable cause exists, and factors (1)

through (7) justify filing charges,” then the judge “may authorize the citizen to sign and file a

complaint.” CrRLJ 2.1(c) (emphasis added). Thus, we conclude that the plain language of CrRLJ

2.1(c) warrants an abuse of discretion review. 15

A superior court abuses its discretion if its decision “ ‘ “is manifestly unreasonable or based

upon untenable grounds or reasons.” ’ ” Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230

15
On appeal to the superior court, the superior court applied de novo review to the district court’s
ruling. The superior court applied de novo review “[b]ecause the ruling below was based on the
pleadings and declarations.” CP at 321. Johnson argued to the superior court that de novo review
applied based on In re Estate of Bowers, 132 Wn. App. 334, 339, 131 P.3d 916 (2006). Though
the court in In re Estate of Bowers held that “[d]ecisions based on declarations, affidavits, and
written documents are reviewed de novo,” this holding was made in the context of reviewing a
court’s decision to admit a will to probate based exclusively on the written record. 132 Wn. App.
at 339. The In re Estate of Bowers court further held that “[c]ourts have also recognized that
probate proceedings are equitable in nature and reviewed de novo on the entire record.” Id. Here,
proceedings under CrRLJ 2.1(c) are not equitable in nature. Thus, we do not apply de novo review
based on In re Estate of Bowers.

CrRLJ 2.1(c) is a court rule governing the procedure for filing a complaint in the courts of
limited jurisdiction of the State of Washington. CrRLJ 1.1. De novo review arguably should apply
“[b]ecause the application of a court rule to a particular set of facts is a question of law.” Thomas,
146 Wn. App. at 571. However, we decline to apply the Thomas court’s reasoning to this case
because the Thomas court interpreted a district court’s application of Washington’s time-for-trial
rule under CrRLJ 3.3(b)(2), (c)(1). Id. at 572. CrRLJ 3.3(b)(2) provides that a defendant “shall
be brought to trial” within a certain time frame, and (c)(1) provides that the initial commencement
date “shall be the date of arraignment.” Thus, neither court rule at issue in Thomas contained the
discretionary language present in CrRLJ 2.1(c). 146 Wn.2d at 572. Further, neither court rule at
issue in Thomas gave the district court judge discretion to determine whether the facts of a
particular case and applicable factors “justify filing charges.” CrRLJ 2.1(c). Therefore, we find
that the Thomas court’s application of de novo review is not controlling here.

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P.3d 583 (2010) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert.

denied, 523 U.S. 1008 (1998)). A lower court’s decision is manifestly unreasonable if the court “

‘adopts a view “that no reasonable person would take.” ’ ” Id. at 669 (quoting In re Pers. Restraint

of Duncan, 167 Wn.2d 398, 402-03, 219 P.3d 666 (2009)). A court’s decision is based on

untenable grounds or for untenable reasons if the court “ ‘applies the wrong legal standard or relies

on unsupported facts.’ ” Id. (quoting Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115

(2006).

2. The District Court did not Abuse its Discretion

Johnson argues that the district court erred in denying her petition to file a citizen’s

complaint because the prosecutorial standards outlined in RCW 9.94A.411(2)(a)16 “mandated”

filing in this case. We disagree.

Johnson’s reliance on the prosecutorial standards of RCW 9.94A.411(2)(a) is misplaced,

as nothing in CrRLJ 2.1(c) mandates that the district court allow a citizen complaint to proceed if

the court finds that RCW 9.94A.411(2)(a) justifies filing charges. Instead, CrRLJ 2.1(c) states that

the judge reviewing the petition “may” consider the prosecution standards. Even if the reviewing

judge determines that criminal charges are warranted, CrRLJ 2.1(c) still does not compel the court

to allow the citizen’s complaint. Instead, the rule provides that the judge “may” then allow the

16
Under RCW 9.94A.411(2)(a), “Crimes against property/other crimes will be filed if the
admissible evidence is of such convincing force as to make it probable that a reasonable and
objective fact finder would convict after hearing all the admissible evidence and the most plausible
defense that could be raised.”

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citizen to sign and file a complaint. CrRLJ 2.1(c).17 Thus, the superior court was not required to

grant Johnson’s petition based on RCW 9.94A.411(2)(a).

Here, the district court applied the standard outlined in CrRLJ 2.1(c) and considered the

evidence presented in support of Johnson’s petition. The district court looked at the rule, read the

briefing, evaluated probable cause for all the suggested crimes in Johnson’s petition, and weighed

the petition against the prosecutorial standards under RCW 9.94A.411. The district court also

“entertained other equitable considerations” required by the rule, including the motivation of the

complaining party and whether anyone had been held accountable for any culpable acts in this

case. CP at 141. The district court then concluded that “there [was] no willful disregard on behalf

of the state” and that “this matter was fully investigated.” CP at 142.

Based on these considerations, the district court ruled that prosecution was not in the best

interest in this particular case and dismissed Johnson’s petition. In its ruling, the district court did

not “ ‘adopt[] a view “that no reasonable person would take.” ’ ” Salas, 168 Wn.2d at 668 (quoting

In re Pers. Restraint of Duncan, 167 Wn.2d at 402-03). Further, the district court did not apply

the wrong legal standard or rely on unsupported facts. Thus, we hold that the district court’s denial

of Johnson’s petition was not based on untenable grounds or for untenable reasons, and the district

17
Johnson erroneously interprets RCW 9.94A.411(2)(a) as requiring a prosecutor to file charges
every time a prosecutor finds that it is probable that a reasonable and objective fact finder would
convict. Johnson bases her argument here on the statutory language “will be filed.” Br. of
Appellant at 46. In Rice, the court held that a statute stating that prosecutors “shall” file a special
allegation of sexual motivation when sufficient admissible evidence exists was nonetheless
directory because the statute did not attach any consequences if the prosecutor failed to comply.
State v. Rice, 174 Wn.2d 884, 896, 279 P.3d 849 (2012).

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court did not abuse its discretion. Accordingly, we affirm the district court’s dismissal of

Johnson’s petition for issuance of a citizen’s complaint.18

B. WARE’S PETITION TO CONVENE A GRAND JURY

Ware asserts that the superior court ruled that allowing his petition to continue was

unconstitutional because it violated the separation of powers. In support, Ware quotes the portion

of the superior court’s ruling finding that petitioning a grand jury in this case would “usurp [the

prosecuting attorney’s] executive power” and that “the fundamental principal of separation of

powers” underlies its ruling. Br. of Appellant at 34. Though inartfully worded, we hold that the

superior court never ruled that allowing private citizens to convene grand juries was

unconstitutional. Thus, we reject Ware’s challenge on this basis.

1. The Superior Court’s Ruling

Ware filed a petition to convene a grand jury under RCW 10.27.030. This statute governs

the summoning of grand juries and provides:

No grand jury shall be summoned to attend at the superior court of any
county except upon an order signed by a majority of the judges thereof. A grand
jury shall be summoned by the court, where the public interest so demands,
whenever in its opinion there is sufficient evidence of criminal activity or

18
The State raised a constitutional challenge to CrRLJ 2.1(c) for the first time on appeal to the
superior court. Even though, on review, the superior court agreed with the State and ruled, “in that
CrRLJ 2.1(c) allows the District Court to authorize the filing of criminal charges by a party other
than the prosecuting attorney, it unconstitutionally violates the separation of powers doctrine,” we
need not address the State’s constitutional challenge. CP at 322. “A reviewing court should not
pass on constitutional issues unless absolutely necessary to the determination of the case.” State
v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981). Likewise, even though appellant assigns error
to the superior court’s determination of the case based on constitutional grounds, it is not necessary
for this court to address the constitutional error to resolve this case. Therefore, we decline to
address both appellant’s assignment of error to the superior court’s constitutional ruling, as well
as respondent’s argument based on constitutional grounds.

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corruption within the county or whenever so requested by a public attorney,
corporation counsel or city attorney upon showing of good cause.

Here, in its ruling, the superior court specifically stated that its inquiry under RCW

10.27.030 focused on “whether Burke was involved in criminal activity within the county, and

whether the public interest demands that a grand jury be summoned to investigate this criminal

activity.” CP at 135. In considering these statutory requirements, the superior court found that it

was undisputed that the death of the cat was the result of criminal conduct. However, in further

assessing evidence of criminal activity, the superior court considered the Lewis County

Prosecuting Attorney’s Office’s decision to decline to file charges. Specifically, the superior court

considered that the prosecutor’s office had twice declined to file criminal charges against Burke,

even in light of new evidence.

After outlining the evidence of criminal activity in this case, the superior court then

weighed the public interest in summoning a grand jury, as required by RCW 10.27.030. In

assessing the public interest in summoning a grand jury in this particular case, the superior court

noted the authority vested in the prosecuting attorney’s office to make charging decisions and the

doctrine of separation of powers.

The superior court denied Ware’s petition, finding that it would not serve the public interest

to second guess the prosecutor’s charging decision in this case, especially in light of the

prosecutor’s inherent charging discretion.19 In denying Ware’s petition, the superior court ruled,

19
Our Supreme Court has held that “the legislature cannot usurp the inherent charging discretion
of prosecuting attorneys; as an executive officer, a prosecuting attorney necessarily has discretion
to forgo a supplemental charge even if sufficient evidence exists and regardless of whether the
charge would interfere with obtaining a conviction.” Rice, 174 Wn.2d at 890. Further, under

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“Mindful that our Supreme Court continues to recognize the unique and exclusive power vested

in the prosecuting attorney to exercise discretion as to which individuals are charged and with

which offenses, we hereby determine that to usurp this executive power does not serve the public.”

CP at 137.

The superior court never declared RCW 10.27.030 unconstitutional either facially or as

applied to this case. Instead, the superior court considered Ware’s petitions on the merits. The

superior court’s references to the principle of separation of powers and the inherent charging

discretion of the prosecutor’s office are not equivalent to ruling that a statute unconstitutionally

violates separation of powers as applied to private citizens. Thus, we hold that the superior court

never declared RCW 10.27.030 unconstitutional as to private citizens and reject Ware’s challenge

on this basis.

2. Ware’s Petition Decided on the Merits

Ware primarily challenges the superior court’s ruling that allowing a private citizen to

convene a grand jury unconstitutionally violates the separation of powers. As explained above,

Ware’s challenge on this basis fails.

However, on appeal, Ware also erroneously argues that the superior court “never reached

the merits” of his petition. Br. of Appellant at 38. Ware further argues that “[n]o legitimate

RCW 9.94A.411, “A prosecuting attorney may decline to prosecute, even though technically
sufficient evidence to prosecute exists, in situations where prosecution would serve no public
purpose, would defeat the underlying purpose of the law in question or would result in decreased
respect for the law.”

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authority exists to deny Mr. Ware or Ms. Johnson20 the right to petition the court.” Br. of Appellant

at 38. We hold that Ware’s argument fails because the superior court did decide Ware’s petition

on the merits and did not abuse its discretion in doing so.

a. Standard of review

To address whether the superior court erred in dismissing Ware’s petition on its merits, we

must first determine the appropriate standard of review. No court has yet determined the applicable

standard in reviewing a superior court’s denial of a petition to summon a grand jury under RCW

10.27.030. We adopt an abuse of discretion standard.

An abuse of discretion standard is appropriate

when (1) the trial court is generally in a better position than the appellate court to
make a given determination; (2) a determination is fact intensive and involves
numerous factors to be weighed on a case-by-case basis; (3) the trial court has more
experience making a given type of determination and a greater understanding of the
issues involved; (4) the determination is one for which “no rule of general
applicability could be effectively construed,”; and/or (5) there is a strong interest in
finality and avoiding appeals.

State v. Sisouvanh, 175 Wn.2d 607, 621-22, 290 P.3d 942 (2012) (internal citations omitted)

(quoting In re Parentage of Jannot, 149 Wn.2d 123, 127, 65 P.3d 664 (2003) (applying an abuse

of discretion standard in reviewing a trial court’s determination of whether a competency

evaluation had been conducted in a qualified manner). Further, “Where the decision or order of

the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing

20
For clarity, we note that Johnson never joined Ware in his petition to summon a grand jury.
Likewise, the superior court never denied Johnson the opportunity to petition the court to summon
a grand jury. Therefore, Ware’s references to Johnson’s petition in the context of Ware’s petition
to summon a grand jury are misplaced.

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of abuse of discretion.” In re T.W.J., 193 Wn. App. at 6 (quoting State ex rel. Carroll, 79 Wn.2d

at 26.).

These factors support an abuse of discretion standard in reviewing a superior court’s denial

of a petition to summon a grand jury under RCW 10.27.030. RCW 10.27.030 states that the

superior court shall convene a grand jury “where the public interest so demands, whenever in its

opinion there is sufficient evidence of criminal activity or corruption within the county.” Both the

sufficiency of the evidence and public interest at stake are fact intensive determinations, involving

numerous factors that must be weighed on a case-by-case basis. Sisouvanh, 175 Wn.2d at 621-22.

Further, “ ‘no rule of general applicability could be effectively construed’ ” when the statute

requires the superior court to determine “in its opinion,” whether “there is sufficient evidence of

criminal activity” and whether the public interest so demands convening a grand jury in a particular

case. RCW 10.27.030; Sisouvanh, 175 Wn.2d at 621-22 (quoting In re Parentage of Jannot, 149

Wn.2d at 127).

Also, there is a strong interest in finality and avoiding appeals here. RCW 10.27.030 states

that the superior court shall convene a grand jury at the request of a public attorney. Our Supreme

Court has recognized that “prosecuting attorneys have broad charging discretion” and “may

decline to prosecute, even though technically sufficient evidence to prosecute exists.” Rice, 174

Wn.2d at 898 (quoting RCW 9.94A.411(1)). Even here, Ware acknowledges that the practical

effect of convening a grand jury at the request of a private citizen would be for the prosecutor to

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terminate this case by filing a motion to dismiss. 21 Therefore, in light of the considerations

outlined in Sisouvanh, we review the superior court’s denial of Ware’s petition under an abuse of

discretion standard.

Affording the superior court discretion allows the superior court “to operate within a ‘range

of acceptable choices.’ ” Sisouvanh, 175 Wn.2d at 623 (quoting State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003)). A lower court abuses its discretion if its ruling is “manifestly

unreasonable or is based on untenable grounds or reasons.” State v. Rapozo, 114 Wn. App. 321,

323, 58 P.3d 290 (2002). A court’s decision is based on untenable reasons “if it is based on an

incorrect standard or the facts do not meet the requirements of the correct standard.” In re

Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

b. The Superior Court did not abuse its discretion

Ware contends that the superior court never addressed his petition on the merits because

the court never addressed whether Burke could be found guilty of first degree animal cruelty.

Specifically, Ware argues that the evidence showed that Burke, “without authorization of law,

intentionally caused physical injury to [the cat].” Br. of Appellant at 38. We hold that, while it

may have been inartfully worded, the superior court did address Ware’s petition on the merits.

21
To this point, Ware erroneously argues that “there has never been an instance where a trial judge
has refused the State’s motion [to dismiss].” Appellant Answer to Amicus Brief at 4. Recently,
Division Three of this Court held, as an issue of first impression, that a trial court may deny a
prosecutor’s motion to dismiss criminal charges “only when the prosecuting attorney offers an
inappropriate reason.” State v. Agustin, No. 34579-3-III, slip op. at 12 (Wash. Ct. App. Jan. 4,
2018), http://www.courts.wa.gov/opinions/pdf/345793_pub.pdf. In doing so, the Agustin court
reversed the appellant’s conviction and held that the trial court erred in denying the State’s pretrial
motion to dismiss the case. Agustin, slip op. at 12.

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In its ruling, the superior court specifically discussed the evidence of criminal activity in

this case, as required by RCW 10.27.030. The superior court found that it was “not disputed” that

the cat’s death involved criminal activity. CP at 135. The superior court did not determine whether

the evidence supported a first degree animal cruelty charge. But nothing in RCW 10.27.030

requires the court to state in its opinion what particular criminal activity was present in this

particular case.

After detailing the evidence of criminal activity, the superior court analyzed whether the

public interest demanded summoning a grand jury, which it was required to find by RCW

10.27.030. The superior court ruled that based on the facts of this case, the considerable

investigation conducted by the prosecutor’s office, and the unique and exclusive power vested in

the prosecuting attorney to exercise charging discretion, the public interest did not demand

summoning a grand jury in this particular case. Thus, the record shows that the superior court

considered Ware’s petition on its merits.

Also, the superior court’s decision was not based on untenable reasons or grounds. The

superior court properly considered the standard for convening a grand jury under RCW 10.27.030

and ruled that the public interest did not demand convening a grand jury in this particular situation.

This ruling was not untenable because the prosecutor’s office had already reviewed the evidence

twice and found that the evidence was insufficient to prove charges against Burke beyond a

reasonable doubt.

The superior court did not abuse its discretion in finding that the public interest did not

demand summoning a grand jury in a case where the prosecuting attorney had investigated the

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case, repeatedly assessed the evidence, and decided to not file charges because it determined that

it would not be able to convict Burke of first degree animal cruelty beyond a reasonable doubt.

Therefore, we affirm the superior court’s dismissal of Ware’s petition to summon a grand jury.

CONCLUSION

We hold that the district court’s denial of Johnson’s petition was not based on untenable

grounds or for untenable reasons, and therefore, the district court did not abuse its discretion. We

also hold that the superior court did not abuse its discretion in dismissing Ware’s petition.

Accordingly, we affirm the district court’s dismissal of Johnson’s petition for issuance of a

citizen’s complaint, and we affirm the superior court’s dismissal of Ware’s petition to summon a

grand jury.

Lee, A.C.J.
We concur:

Worswick, J.

Sutton, J.

28