(dissenting) — Article I, section 10, of the Washington Constitution mandates “Justice in all cases shall be administered openly, and without unnecessary delay.” The plain language of the section thus reveals the commitment of the framers to decide cases in a manner that is both just and swift. Accordingly, unnecessary delay in and of itself is an error of constitutional magnitude. Simply reinstating a criminal defendant’s appeal after an extended period of unnecessary delay does nothing to cure the error. Where there is a wrong the court should provide a remedy.4
The constitutional deprivation visited upon Mr. Stein is *249the six-and-one-half-year delay in his criminal appeal. The delay violates Stein’s right to a speedy trial. No remedy aside from dismissal of charges pursuant to CrR 8.3(b) makes sense:
On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order.
“Fairness to the defendant underlies the purpose of CrR 8.3(b).” State v. Koerber, 85 Wn. App. 1, 5, 931 P.2d 904 (1996). See also State v. Boldt, 40 Wn. App. 798, 801, 700 P.2d 1186 (1985) (“The purpose of the rule is to ensure that, once an individual is charged with a crime, he or she is fairly treated.”). Moreover, “[t]he rule is intended to protect against governmental misconduct or arbitrary action.” State v. Wilke, 28 Wn. App. 590, 596, 624 P.2d 1176 (1981). Dismissal of charges pursuant to CrR 8.3(b) is appropriate when the defendant shows (1) government misconduct and (2) prejudice. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997).
The government misconduct here is readily apparent. Mr. Stein was convicted of one count of burglary and three counts of attempted murder. The judgment and sentence was entered on September 1,1989, and five days later Stein filed a timely Notice of Appeal. However Division Two of the Court of Appeals dismissed Stein’s appeal on August 8, 1991. Stein continued to be imprisoned without the benefit of appeal until Federal District Judge Robert Bryan vacated the dismissal order on May 15, 1996. Judge Bryan determined, inter alia, misconduct by officers of the court caused excessive delay resulting in dismissal of Stein’s appeal.5 Stein’s appeal was not reinstated until June 10, 1996, five years after dismissal.
*250Even had Judge Bryan determined the government’s misconduct was mere oversight, the first prong of the test would still be satisfied: “Governmental misconduct. . . ‘need not be of an evil or dishonest nature; simple mismanagement is sufficient.’ ” Michielli, 132 Wn.2d at 239 (quoting State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993)).
The prejudice is apparent. Michielli, 132 Wn.2d at 240. “Such prejudice includes the right to a speedy trial. . . .”6 Id. The text of the Washington Constitution “expressly provides delay in and of itself is a constitutional evil against which we must guard: criminal justice must be prompt and not unnecessarily protracted.” State v. Head, 136 Wn.2d 619, 627, 964 P.2d 1187 (1998) (Sanders, J., dissenting). And the Washington Constitution article I, section 10, is mandatory by its terms: “Justice in all cases shall be administered openly, and without unnecessary delay.” (Emphasis added.)
How much time must pass before a delay in the administration of justice is deemed prejudicial? The majority apparently believes six-and-one-half years is not long enough. Is seven? Or eight? Or ten?
Our constitution simply mandates justice be administered “without unnecessary delay.” Unless this clause is mere surplusage we are not at liberty to ignore it. To the contrary, it is written in the imperative. When delay is unnecessary it violates the constitution.
Whatever retribution the State has exacted from Mr. Stein during the last six-and-one-half years is ill gotten and serves only to undermine the faith of the citizenry in its government. We must be ever mindful that “ ‘though unfair *251means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained is unjust and dangerous to the whole community.’ ” State v. Stentz, 30 Wash. 134, 140, 70 P. 241 (1902) (quoting Hurd v. People, 25 Mich. 405, 406 (1872)).
But here it is not even certain the use of unfair means has resulted in doing justice to this particular defendant. It is impossible to determine from the verdict whether the jury meant to convict Mr. Stein of burglary, attempted murder, or both. Majority at 247. Burglary 1 carries a seriousness level of VII for purposes of the Sentencing Reform Act of 1981 (SRA). RCW 9.94A.320. The standard sentencing range for a defendant with no prior convictions who is convicted of a level VII offense is only 18 months. RCW 9.94A.310. If on remand the jury determines Mr. Stein is guilty as an accomplice to burglary but not to attempted murder, a further injustice will have been worked upon him. Specifically, the duration of the unconstitutional delay in his appeal will have been more than three times longer than the maximum possible term of confinement permitted under the SRA.
Here the delay is clearly “unnecessary” as no satisfactory justification has been advanced. Judge Bryan’s oral ruling places at least part of the blame on officers of the court. Reinstatement of Stein’s appeal is not simply an inadequate remedy, it is no remedy at all. It does nothing to cure the delay or compensate for it.
This delay will persist for at least another year ere Mr. Stein’s case is finally resolved, and thus an already intolerable situation will only be exacerbated by yet further passage of time. Historically Washington Courts have dismissed cases where delay in a defendant’s appeal was much shorter than that suffered by Mr. Stein. For example Division One of the Court of Appeals imposed the “Draconian” penalty of dismissal with prejudice where government misconduct had unnecessarily delayed the defendant’s appeal for three years — a delay half as long as Stein has suffered. State v. Smith, 68 Wn. App. 201, 208-09, 842 P.2d 494 (1992).
*252I disagree with the majority’s decision to leave this remedy to the discretion of the trial court on remand. The constitution is mandatory, not discretionary: “The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” Const, art. I, § 29.
I therefore dissent.
Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803) (“ ‘[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.’.. . The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the *249laws furnish no remedy for the violation of a vested legal right.” (quoting 3 William Blackstonb, Commentaries *23)).
Judge Bryan found the official court reporter, the Clark County clerk’s office, *250and the prosecutor were all partially to blame for the dismissal because their actions impeded the process of compiling the official record for appeal.
Prejudice is limited to an impairment of the defense. It includes any threat to “ ‘an accused’s significant stakes — psychological, physical and financial — in the prompt termination of a proceeding which may ultimately deprive him of life, liberty or property.’ ” United States v. Dreyer, 533 F.2d 112, 115 (3d Cir. 1976) (quoting United States v. Roberts, 515 F.2d 642, 645 (2d Cir. 1975)).