(As amended Dec. 27, 1946, eff. (2d). The jury in legal effect and consequence found in the criminal case that relator, ". New Trial on the Court's Initiative or for Reasons Not in the Motion. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. 429. v. Redman (1915), 183 Ind. The trial judge stated that he would decide all questions presented and would make a final determination as to the ouster proceeding on February 15, 1961, and the parties were directed to present any further pleadings or motions by that time. These long-standing and well-reasoned cases suggest no delusions as to the purpose and effect of Art. Washington State Court Ruleson the Washington Courts website. On February 2, 1961, the relator moved to dismiss the information, and on February 8, 1961, further moved to strike certain portions of the information. A criminal trial was held in the Superior Court for Snohomish County, and on November 9, 1960, a trial jury returned a verdict of guilty on two of the three counts charged. (2d). . ZEMPEL v. TWITCHELL. The only determination that the court was required to make in the quo warranto proceeding, aside from any constitutional question, was whether relator's conviction for knowing, willful neglect of duty amounted to a violation of his official oath or malfeasance under our statutes. . 26, 2009, eff. A motion for a new trial must be filed no later than 28 days after the entry of judgment.
See also Rule 60(b). (e) Motion to Alter or Amend a Judgment. You may be trying to access this site from a secured browser on the server. Judge Foster's reasoning in his concurring opinion in this respect is sound. On January 17, the prosecuting attorney for Snohomish County filed an information in quo warranto. I, 22. Dec. 1, 2009. ." Guthrie v. Chapman . ), "I, BOB TWITCHELL, do solemnly swear (or affirm) that, Jan. 1962] STATE EX REL. Therefore, I at once put aside all decisions from other states on both sides of the question because, under such circumstances, the legislature may deny any appeal. The relator's office was vacated by the trial court prior to the review by this court of the relator's appeal of his conviction. See Meisenholder, The Effect of Proposed RuLes 7 Through 25 on Present Washington Procedures, 32 Wash. L. Rev. En Banc. 
Subdivision (b). 711, 91 Pac. That judgment was self-executing and, by its own force and without the aid of process or further action of the court, accomplished the object sought to be obtained by the statute, which was the immediate and effectual, 432STATE EX REL. I, 22, of the state constitution. 5, 25, 26; Mich.Court Rules Ann. & Cas. This ground remains, however, as a basis for a motion for new trial served not later than 10 days after the entry of judgment. 1953). . Relator has been denied no constitutional rights; consequently, the trial court should be and is hereby affirmed. (2d) 67, 79 S. Ct. 46; State, Jan. 1962] STATE EX REL. (2d), divestiture of the relator of all official authority whatever." 344. If the relator's office is vacant and forfeited, it is the result of the operation of statutory law, and not the result of a resolution of the Snohomish County Board of Commissioners acknowledging that a vacancy existed. Co. of New York (C.C.A.8th, 1944) 146 F.(2d) 321, and makes clear that the district court possesses the power asserted in that case to alter or amend a judgment after its entry. The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. '/_layouts/15/itemexpiration.aspx'
584.". 1523, 59 S. Ct. 1047; Smith v. Noeppel (1953), 204 Misc. ZEMPEL v. TWITCHELL. Guthrie v. Chapman (1936), 187 Wash. 327, 60 P. (2d) 245, 106 A. L. R. 640; Becker v. Green Cy., supra. The ouster from office is a matter entirely unrelated to the criminal appeal, just as the loss of employment is unrelated to the appeal of any criminal defendant who is not a public officer. 903, 905 (1931); N.J.Sup.Ct. It is resolved by deleting the former Rule 59(c) limit. II, 24) and Utah (Art. Convicted criminal offenders may even lose their jobs - and probably will, if their employer chooses or feels forced by circumstances to discharge them. (2d) 849, 307 P. (2d) 279. motion for what it was, a motion for judgment on the pleadings. . The language of Rule 59 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. 1942); National Farmers Union Auto. Supreme Court January 12, 1962. RCW 42.12.010 and 9.92.120, which provide for the forfeiture of the office of any public official convicted of a crime involving a violation of his official oath or malfeasance, do not conflict with or infringe upon the right to appeal from criminal prosecutions guaranteed by Const. ." [9] Vacancy in, or removal from, office as a result of a conviction of a public officer is not a punishment. [1, 2] Clearly, the ten-day requirement is not absolute, but is subject to modification according to the discretion of the court. Ariz.Rev.Code Ann. the right to appeal in all cases .
Guthrie v. Chapman, supra. Finally, contention has been made that the determination in the criminal case cannot be res judicata in the quo warranto proceedings, and that RCW 42.12.010 and RCW 9.92.120 are inoperative, that is, can be of no legal effect until after a final determination by the state Supreme Court respecting relator's appeal from his criminal conviction, otherwise the statutes deny the right of appeal to defendant Twitchell in his capacity as a public office holder and therefore conflict with and are voided by Art. '/_layouts/15/docsetsend.aspx'
(f)); Md.Ann.Code (Bagby, 1924) Art. Signing and Drafting of Pleadings, Motions, and Legal Memoranda; Sanctions, Pretrial Procedure and Formulating Issues, New Trial, Reconsideration, and Amendment of Judgment, Mandatory Settlement Conferences in Domestic Relations Actions, Finalizing Family Law Cases (in Word Format), Guardian Ad Litem Disciplinary Procedure for CCCA Staff/Volunteers, Guardian Ad Litem Disciplinary Procedures, Application of Rules-Purpose and Definitions, Notice of Hearing-Time and Place-Continuance, Pre-Hearing Statement of Proof-Documents Filed With Court, Assignment of Contested Adoption/Termination Trials, Timing of Filing Documents in Dependency Proceedings, Electronic/Telephone Appearance in Dependency/Termination Proceedings. 598; People ex rel. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. 1, 22 (as amended) of the state constitution. + '?List={ListId}&ID={ItemId}'), JURY SERVICE POSTPONEMENT, EXCUSAL, AND DISQUALIFICATION, PRESIDING JUDGE IN SUPERIOR COURT DISTRICT AND LIMITED JURISDICTION COURT DISTRICT, WAIVER OF COURT AND CLERK'S FEES AND CHARGES IN CIVIL MATTERS ON THE BASIS OF INDIGENCY, LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS, SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS, SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS, PRETRIAL PROCEDURE AND MOTIONS [Updated Rule, September 3, 2021], NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS, NOTICE OF HEARING - TIME AND PLACE - CONTINUANCE, CONCURRENT JURISDICTION OVER FAMILY COURT, MANDATORY MEDIATION FOR PARENTING PLANS AND RESIDENTIAL SCHEDULES, ESTATES GUARDIANSHIP SETTLEMENT OF CLAIMS OF MINORS AND INCAPACITATED PERSONS, GUARDIAN AD LITEM APPOINTMENT PROCEDURES [Updated Rule, January 1, 2021], GAL REPORT REVIEW HEARING TITLE 26 [Updated Rule, January 1, 2021], GUARDIAN AD LITEM GRIEVANCE AND COMPLAINT PROCEDURES, GUARDIAN AD LITEM REGISTRIES [Updated Rule, January 1, 2021], CONTINUING REQUIREMENTS FOR TITLE 26 AND TITLE 11 RCW GUARDIANS AD LITEM [Updated Rule, January 1, 2021], SETTLEMENT AND PRETRIAL CONFERENCES FOR DEPENDENCY AND TERMINATION CASES, Contacting Superior Court Judges and Staff, Ordering a Copy of an Electronically Recorded Hearing, Ordering Transcripts (requesting the written record). The second sentence added by amendment to Rule 59(d) confirms the court's power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. (2d) 209, 47 P. (2d) 705; People v. Enlow (1957), 135 Colo. 249, 310 P. (2d) 539; Pineville v. Collett (1943), 294 Ky. 853, 172 S. W. (2d) 640. The answer admits that the relator was convicted of a willful neglect of duty as sheriff of Snohomish County in, Jan. 1962] STATE EX REL. Therefore, he was denied his right of appeal guaranteed by Art. (2d). 24 A. L. R. 1290, 106 A. L. R. 645, 119 A. L. R. 743, 71 A. L. R. (2d) 595; Am. Rather, they consistently articulate the sound and reasonably necessary public policy inherent in RCW 42.12.010 and RCW 9.92.120. (Searl, 1933) Rule 47, 2; Miss.Sup.Ct. declaring that a public office is vacated if the occupant thereof be convicted of specified crimes. . (b) Time to File a Motion for a New Trial. See State ex rel. In a quo warranto proceeding, the trial court properly held that a county sheriff's conviction for willful neglect of duty determined a violation of the sheriff's official oath of office and vacated the office under the provisions of RCW 42.12.010, where the jury, in the criminal case, found that the sheriff willfully and knowingly failed to perform a duty enjoined upon him by law, and the sheriff's oath included a promise to perform and discharge the duties of his office according to law. With the time for appeal to a circuit court of appeals reduced in general to 30 days by the proposed amendment of Rule 73(a), the utility of the original except clause, which permits a motion for a new trial on the ground of newly discovered evidence to be made before the expiration of the time for appeal, would have been seriously restricted. The criminal code of 1909 (Laws of 1909, chapter 249, 37, p. 900), which was adopted from the criminal code of New York, contains a similar provision (RCW 9.92.120), 434STATE EX REL. ZEMPEL v. TWITCHELL. (1921), 176 Wis. 120, 184 N. W. 715. Assuming, arguendo, that the trial court granted a summary judgment, findings and conclusions were unnecessary. Link to Court Forms referencedin Local Court Rules.
. This rule represents an amalgamation of the petition for rehearing of [former] Equity Rule 69 (Petition for Rehearing) and the motion for new trial of U.S.C., Title 28, 391 [see 2111] (New trials; harmless error), made in the light of the experience and provision of the code States. The apparent 20-day limit on extending the time to file opposing affidavits seemed to conflict with the Rule 6(b) authority to extend time without any specific limit. To do otherwise is to render Rule 12 (c), pertaining to judgments on the pleadings, totally useless. 1953); Bailey v. Slentz, 189 F.2d 406 (10th Cir. Just as the court has power under Rule 59(d) to grant a new trial of its own initiative within the 10 days, so it should have power, when an effective new trial motion has been made and is pending, to decide it on grounds thought meritorious by the court although not advanced in the motion. (Struckmeyer, 1928) 3852; Calif.Code Civ.Proc. (Italics ours.). I, 23) provides for a writ of error as of right in felony convictions,4 only two states besides Washington, Arizona (Art. 1959); Cooper v. Midwest Feed Products Co., 271 F.2d 177 (8th Cir. (concurring) - In our review of the instant judgment on the pleadings, we need look no further than the sufficiency of the answer to allege a defense. denied, 311 U.S. 667 (1940); but see Steinberg v. Indemnity Ins. Knabb v. Frater (1939), 198 Wash. 675, 680, 89 P. (2d) 1046, wherein the court commented and made these references: "`Evil doing; ill conduct: the commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which the person ought not to do at all; the doing of what one ought not to do; the performance of some act which ought not to be done: the unjust performance of some act which tee party bad no right, or which he had contracted not, to do.' The prayer was for a judgment of ouster declaring that the office was vacant. The latter rule does not require ritualistic detail but rather a fair indication to court and counsel of the substance of the grounds relied on.
. ZEMPEL v. TWITCHELL. These rules supplement the State Court Superior Court Rules and govern local practice. O'Hara v. Montgomery (1936), 275 Mich. 504, 267 N. W. 550; State ex rel. I think it does not allege a defense and that this court should so hold as a matter of law. It is interesting to note that after the conviction but before the opinion of the Supreme Court of Wisconsin in the Becker case, the statute was amended to provide: ". Jur., Public Officers 200. For this reason, I concur in the affirmance. (c) Time to Serve Affidavits. (2d) 211, 215, 339 P. (2d) 89, is appropriate and instructive at this point: "We cannot, however, pass without comment the . That the automatic forfeiture effect of the statute was argued and considered by the court is made obvious by these words from the opinion: "Contention is made that relator has appealed from the judgment of conviction in the criminal action, and that his appeal is now pending in this court. In the Guthrie case, the court said: ".
One such qualification is that a public official convicted of "any offense involving a violation of his official oath" shall not hold a position of public trust. Certainly, in the instant case we should not alter and revise qualifications established by the legislature for public officersqualifications which are so well recognized and of such long standing. [59 Wn. Rule 6(b) continues to prohibit expansion of the 28-day period. Relator's surveillance of houses of prostitution and warnings to them, not being a lawful method of law enforcement procedure, did not amount to a performance of duty at all. 1 The matter is now pending in the Supreme Court. Click the links belowto see the selected rule. The petition was denied, and application was made for certiorari. The conviction in the superior court was res judicata as to factual issues raised in relator's defense in the quo warranto proceeding. Both motions were heard on February 10, 1961, and were orally denied at that time. If this were an open question, a very strong argument could be made that the statutes involved conflict with Art. For the reasons indicated above, we adhere to the trial court's decision. Guthrie v. Chapman, 187 Wash. 327, 60 P. (2d) 245, 106 A. L. R. 640, and State ex rel.
Austin v. Superior Court (1940), 6 Wn. The relevant statutes are RCW 42.12.010, which states: "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer. Filing is an event that can be determined with certainty from court records. ), Notes of Advisory Committee on Rules1937.
ZEMPEL v. TWITCHELL. Under Rule of Pleading, Practice and Procedure 12 (a), which provides that "unless a different time is fixed by order of the court" a party is allowed 10 days to file a responsive pleading after the denial or postponement of certain motions, the 10-day requirement is not absolute, but is subject to modification according to the discretion of the court. ZEMPEL v. TWITCHELL. In three separate counts the indictment charged that Twitchell, while serving as the duly elected sheriff for Snohomish County willfully and knowingly failed and neglected to perform a duty enjoined upon him by law by permitting "the keeping of a house of prostitution and the practice of prostitution" within the county. (2d) 755, 264 P. (2d) 246, 42 A. L. R. 1379. The phrase "to the best of my ability", which was contained in the oath of office of a county sheriff following the promise to perform and discharge the duties of the office, was not a qualification of the standards expected of the sheriff, but was in the nature of a promise to devote unceasing effort toward performing and discharging those duties imposed by law and which the affiant, by virtue of the preceding portions of the oath, solemnly swore to uphold. Salisbury v. Vogel (1934), 65 N. D. 137, 256 N. W. 404; State ex rel. Art. By narrow interpretation of Rule 59(b) and (d), it has been held that the trial court is without power to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion but perceived and relied on by the trial court sua sponte. The court may permit reply affidavits. In all fairness, it should be acknowledged that courts in a few other jurisdictions have yielded to sentimentality or empathy for public officials and, accordingly, have construed comparable statutory or constitutional language to reach the result advocated by relator. Notes of Advisory Committee on Rules1966 Amendment. Removal from public office pursuant to RCW 42.12.010 and 9.92.120, which provide for the forfeiture of the office of any public official convicted of a crime involving a violation of his official oath or malfeasance, is not a punishment, but is a legislative expression of public policy, pursuant to Const. . . For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283 U.S. 494 (1931); Schuerholz v. Roach, 58 F.(2d) 32 (C.C.A.4th, 1932); Simmons v. Fish, 210 Mass. In this certiorari action the petitioner seeks to void a decree of the superior court in quo warranto proceedings ousting him from the office of county sheriff.
In these cases, as stated by Judge Foster, this court did not consider any conflict between the statutes (RCW 42.12.010 and RCW 9.92.120) and the constitutional guarantee of a. right of appeal. Adverse publicity, social stigma, and personal losses are commonplace - in fact, almost inevitable. Freid v. McGrath, 133 F.2d 350 (D.C.Cir. [No. The trial judge orally denied a demand for a jury. It also provided that the period could be extended for up to 20 days for good cause or by stipulation. We hold that the relator's status or office as Snohomish County Sheriff was vacated upon the relator's conviction of willful, knowing negLect of duty, and that there was no dispute of material fact requiring a trial in the quo warranto proceeding. [59 Wn. On February 15, written orders denying relator's motion to dismiss and motion to strike were signed and entered by the trial court, and an answer to the information was, Jan. 1962] STATE EX REL. +'?ID={ItemId}&List={ListId}', 'center:1;dialogHeight:500px;dialogWidth:500px;resizable:yes;status:no;location:no;menubar:no;help:no', function GotoPageAfterClose(pageid){if(pageid == 'hold') {STSNavigate(unescape(decodeURI('{SiteUrl}'))+ The only case cited to us, and the only one that we have been able to find, bearing any close similarity to the facts of this case is that of Becker v. Green County, 176 Wis. 120, 184 N. W. 715, 186 N. W. Rule 52.08W is therefore inapplicable. Since Rule 56 (c) does not apply to judgments on the pleadings, relator's contention is without merit. Basically, the statute is a legislative statement of qualifications for holding public office. The judgment vacating the relator's office prior to disposition of the appeal of his conviction should be reversed. [3] (2) According to Rule 52.04W, "The trial court shall make findings of fact in all cases tried before the court without a jury." State v. Ward, 163 Tenn. 265, 43 S. W. (2d) 217.". Since relator filed his answer on the date fixed by the court, it is obvious that he had sufficient time to prepare this pleading. There is language to the same effect in State ex rel. I, 12), constitutionally guarantee a right of appeal in all criminal cases. February 15 was selected so relator would have time to apply for a writ of prohibition in the Supreme Court. Removal from office is simply a consequence of a reasonable and sound public policy, and a condition imposed upon a public official in furtherance of the public interest in good government State ex rel. (1) It is implicit in Rule 12(a) that differing circumstances result in different time limits for preparing responsive pleadings. Accordingly the amendment of Rule 59(b) eliminates the except clause and its specific treatment of newly discovered evidence as a ground for a motion for new trial. Washington State Sportsmen's Council v. Coe, 49 Wn. New York has no constitutional provision guaranteeing a right of appeal from a conviction of a criminal offense. McKannay v. Horton, supra. State ex rel. +'?ID={ItemId}&List={ListId}'); return false;}}, null); javascript:SP.UI.ModalDialog.ShowPopupDialog('{SiteUrl}'+ ." However, an overwhelming majority of cases from other jurisdictions have taken the position that the term "conviction" appearing in constitutional or statutory provisions similar to RCW 42.12.010 and RCW 9.92.120 means simply conviction in a trial court. A judgment of ouster was entered; subsequently, the conviction in the criminal case was reversed. Rather, the phrase is in the nature of a promise to devote unceasing effort toward performing and discharging those duties of the office which are imposed by law and which the affiant (by virtue of the preceding portions of the oath) solemnly swears to uphold. (Italics ours.) There can be no proper defense predicated upon ability to act where there is an absence of any intention or attempt to act by way of a lawful performance of duty. "(Italics ours.). Linkto the For the effect of the motion for new trial upon the time for taking an appeal see Morse v. United States, 270 U.S. 151 (1926); Aspen Mining and Smelting Co. v. Billings, 150 U.S. 31 (1893). Changes Made after Publication and Comment. 433. that he knowingly permitted the keeping of a house of prostitution and the practice of prostitution. . People v. Gersewitz, supra. '/_layouts/15/expirationconfig.aspx' Knabb v. Frater. 484, 38 N. E. (2d) 660; Attorney General ex rel. U.S.C., Title 28, [former] 840 (Executions; stay on conditions) is modified insofar as it contains time provisions inconsistent with Subdivision (b). Additional time to prepare a responsive pleading was not sought at the time, and there is nothing to indicate that the answer would have been any different had a few more days been allowed. The jury determination that relator had willfully and knowingly failed and neglected to perform a duty enjoined upon him by law, therefore, necessarily included a determination of a violation of oath of office. It was not denied, nor could it have been, that a criminal conviction of relator had occurred in the superior court. ], THE STATE OF WASHINGTON, on the Relation of Arnold R. Zempel, Plaintiff, v. ROBERT TWITCHELL, Defendant and Relator, THE SUPERIOR COURT FOR SNOHOMISH COUNTY, William J. Wilkins, Judge, Respondent.*. [5] The information in quo warranto asserted three things: (a) that in a prosecution for a criminal offense relator had been convicted of knowing, willful neglect of duty; (b) that relator's office or status as sheriff had been vacated and forfeited; and (c) that relator had refused to relinquish and vacate the office of Snohomish County Sheriff. Co. v. Wood, 207 F.2d 659 (10th Cir. Under these circumstances, this court should not hesitate to overrule prior cases. did wilfully and knowingly fail and neglect to perform a duty enjoined upon him by law, in that he knowingly. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. New Trial; Altering or Amending a Judgment. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. In due course his appeal will come before this court in the same manner as thousands of other criminal appeals. Certiorari to review a judgment of the Superior Court for Snohomish County, No. 3 "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law. Thus, the statute is an expression of public policy by the legislature, clearly within the ambit of the constitutional prerogative of that branch of state government, pursuant to Art.