(dissenting) — The majority holds that a defendant's motion to the court to correct an improper trial date may not be made ex parte. I disagree for two reasons. First, I believe once a court is notified it has set an improper trial date, the court has an absolute duty to correct its mistake. Second, I believe the defendant's motion is *104of a type we generally permit to be made ex parte, for granting the motion would not have resulted in prejudice to the opposing side.
JCrR 3.08(a) unequivocally imposes on the trial court the duty to set a trial date consistent with the speedy trial court rule: "It shall be the responsibility of the court to ensure a trial in accordance with this rule to each person charged with having committed a crime." The time limitations to which the court must adhere are set forth in JCrR 3.08(c)(1). Setting a case for trial ordinarily is not a matter for briefing or argument. The court selects a trial date and then notifies the parties of the date selected. The defendant is under no obligation to move for a trial date in the first instance; the burden is solely on the court.
As the majority notes, JCrR 3.08 was revised to place an obligation on the defendant to object when a trial date is set outside the limits prescribed by section (c)(1). See JCrR 3.08(f)(2). If the defendant does not object, by motion, to the improper date, she or he is held to have waived the speedy trial right accorded by the rule. However, the purpose of the revision was not to excuse the court from complying with section (c)(1) once it realizes a trial date is improper. Rather, the purpose was to avoid the situation in which defense counsel sits silently by, knowing the court had inadvertently set an improper trial date, and, when the prescribed time limit has expired, moves to dismiss. Ken-newick v. Vandergriff, 45 Wn. App. 900, 907-08, 728 P.2d 1071 (1986) (Munson, J., dissenting). In the instant case the court was promptly notified of its error, at a time when a rescheduling within the prescribed limits was still possible. The trial judge should have been made aware of the impending violation, reset the trial date within the limits prescribed by the rule, and notified the parties of the rescheduling.
The majority attempts to excuse the trial court's error by finding fault with the defendant's motion — specifically, the defendant's failure to serve the City. However, the court rules themselves do not expressly require notice to the *105opposing party for motions made pursuant to JCrR 3.08(f)(2). Cf. Townsend v. State, 215 Kan. 485, 524 P.2d 758 (1974). Furthermore, there is no evidence the revision to JCrR 3.08 requiring the defendant's timely objection was ever intended to transform the trial court's clerical task of setting a proper trial date into a substantive ruling requiring briefing and a hearing. Unlike a claim under the constitutional speedy trial right, which raises a number of issues upon which reasonable judges might differ, see State v. Wunderlich, 338 N.W.2d 658, 661 (N.D. 1983); see also Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), a claim brought under JCrR 3.08(f)(2) such as the defendant's is essentially unarguable. See Stokes v. State, 157 Ind. App. 272, 276, 299 N.E.2d 647 (1973). The language of JCrR 3.08 makes it clear that the trial court has no discretion in resetting an improper trial date. When the defendant is entitled to relief as a matter of right, the general rule requiring notice to the opposing party is in abeyance. See Howell v. Howell, 22 N.C. App. 634, 636, 207 S.E. 2d 312 (1974).
This is not to deny that notice to the opposing party is preferable to the absence of notice. In re Marriage of Wherley, 34 Wn. App. 344, 347, 661 P.2d 155, review denied, 100 Wn.2d 1013 (1983). However, our judicial system has always recognized that some motions may be made ex parte. See, e.g., Wherley; JCrR 10.01. Ex parte motions generally are permissible when no substantial rights of the opposing party are prejudiced. See State ex rel. McLeod v. Brown, 278 S.C. 281, 284, 294 S.E.2d 781 (1982); see also Wherley, at 347-48. In Wherley, for example, a couple petitioning for a dissolution of their marriage joined in a common prayer for relief. The court entered a decree following an ex parte hearing with one spouse. The Court of Appeals upheld the order.
Ordinarily, the protection afforded by notice and an opportunity to be heard is necessary because the parties are adversaries in the sense that one party opposes the relief sought by the other. Here, an unusual circumstance *106exists. The Wherleys joined in a common prayer for relief, as they were entitled to do. . . . Accordingly, there existed no contested issues. Under these circumstances, the risk of erroneous determination is negligible — provided the relief granted does not differ substantially from that sought in the petition.
Wherley, at 347.
In the instant case, too, "there existed no contested issues." The City, even more than the defendant, stood to benefit from a grant of the defendant's motion, for a timely trial date would ward off the risk of reversal based on a speedy trial rule violation. See JCrR 3.08(i); see also majority opinion, at 103 ("if the court fails to act on [a JCrR 3.08(f)(2)] motion, there may be a speedy trial rule violation mandating dismissal of this action"). The defendant's motion here was not for dismissal of the action; unquestionably, a motion for dismissal with prejudice would be adverse to the City's interests. See Barr v. Ehrlich, 301 So. 2d 147 (Fla. Dist. Ct. App. 1974); State v. Johnson, 182 Mont. 24, 594 P.2d 333 (1979). The defendant was merely seeking a trial date set in conformity with court rules. It makes little sense to require the defendant to give notice to the prosecution in order to enable the prosecution to join with the defendant in arguing the merits of the defendant's motion.
Moreover, the defendant's failure to serve notice on the City had nothing to do with the court's failure to set a proper trial date. The defendant's motion was effectively denied because of a clerical oversight, not because of any deliberation on the merits. See Stokes v. State, supra at 276. Had the trial judge's attention been drawn to the motion, he would not have been loath to grant it based on the perceived interests of the prosecution; on the contrary, the judge would have recognized that the City's interest in a proper trial date was congruent with the defendant's. This congruency of interests would only have made the judge more likely to grant the motion; it would have reassured him that "the risk of [an] erroneous determination" *107prejudicial to the City was negligible. See Wherley, at 347.
The majority latches onto an asserted inadequacy in the defendant's motion in order to justify a clerical mistake by the trial court. In the past we have opposed excusing speedy trial rule violations caused by administrative problems. See State v. Mack, 89 Wn.2d 788, 794-95, 576 P.2d 44 (1978); see also City of Bremerton v. Hoyt, 44 Wn. App. 135, 138-39, 721 P.2d 539 (1986); State v. Ramsay, 41 Wn. App. 380, 704 P.2d 657 (1985). We should not abandon that position now.
For these reasons I dissent.
Utter and Goodloe, JJ., concur with Pearson, C.J.