Vous êtes sur la page 1sur 10

MemorandumofLawinSupportof

FirstAmendmentCriminalComplaint
CrRU2.2(a)andCrR2.2(a)
Black's Law Dictionary 6
th
Ed. Defines "Complaint" In criminal law, acharge preferred before a
magistrate havingjurisdiction (no oath =no authority =no jurisdiction =no immunity) that a person
named (or an unknown person) has committed aspecified offense, withan offertoprove thefact, to
theend thataprosecution maybe instituted.The complaintcan be "takenout" bythevictim,thepolice
officer, the districtattorney, orotherinterested party. Although the complaintcharges an offense, an
indictmentorinformationmaybetheformalchargingdocument.
Black's Law Dictionary 6
th
Ed. Defines "Complainant" One who applies to the court for legal
redress byfilingcomplaint(i.e. plaintiff).Also, onewhoinstigates prosecutionorwhoprefersaccusation
againstsuspected person.
FairWarning
Fair warning of Constitutionally protected Rights as interpreted by the united States supreme
court, see U.S. v. Lanier (1997) 117S. Ct. 1219, 520 U.S. 259, 137 L. Ed.2d 432, on remand 114 F.3d 84,
on remand 120F.3d 640, on remand 123F.3d 945.
ThefirstamendmentRighttofilea criminalcomplaintwith areasonable 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 tobe the most definitive statement on this issue, othercases have impliedly, ifnotexpressly,
held thatthe firstamendmentrighttopetition is broad enough to protectan individual's righttofile a
suitwith reasonable basis in astateorfederal tribunal.See Gregoryv. CityofChicago, 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, 20
(1997)"..., it is this Court's prerogative alone to overrule one of its precedents. /I
TheWashingtonsupremecourthas alsoruledas totheseinterpretations.
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 made 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. II
Theabovecase lawconfirmseveryCitizen has aRighttofileacriminal complaintin anystateor
federal tribunal, under the interpretation given by the United States Supreme Court of the First
AmendmentRight"topetitiontheGovernmentforaredress ofgrievance." In BillJohnson'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
MemorandumofLaw in SupportofFirstAmendmentCriminalComplaints Page 1of10
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)"
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 matters 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 that 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 1987 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. 2d
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 Page 2 of 10
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 portions of 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
th
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 to 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 of Law in Support of First Amendment Criminal Complaints Page 3 of 10
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 make 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
th
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 Law in Support of First Amendment Criminal Complaints Page 4 of 10
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. It 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 will 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 in Support of First Amendment Criminal Complaints Page 5 of 10
"Discretionaryacts involvetheestablishmentofpolicy,whileministerialactsimplement
establishedpolicy." Hoquiamv. Grays HarborCounty, 24Wn.2d 533/ 540(1946); Burgv.
Seattle, 32 Wash. App. 286(1982).
A prosecuting attorney can file an information without ajudge/s permission, butthen ajudge
can dismiss the information ifhe believes thatthere is notenough probablecause toproceed. But, on
the other hand, RCW 9.94A.411 (Evidentiary sufficiency - (1) Decision not to prosecute) allows the
prosecutingattorneydiscretion as toprosecution on misdemeanors and gross misdemeanors, butas in
thedefineddutiesunderRCW 36.27.020(6)/section (2) Decisiontoprosecutestatesin part-
(a) Standard:
Crimes against persons will be filed if sufficient admissible evidence exists, when
consideredwiththemostplausible,reasonablyforeseeabledefensethatcould be raised
underthe evidence, wouldjustifyconviction by areasonable and objectivefact finder.
Crimesagainstproperty/othercrimeswill be filed....
Thesection following(2) (a) abovedetailsthepoliceinvestigationand theprosecutingattorneys
furtherdutytoensurethatathorough investigationhas been conducted, and Per-Fling Discussionswith
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 attorneyto institute and prosecute all felonies that come to his
attentionwithareasonablebasis, RCW 10.16.110leavesnoroomfordoubt.
RCW 10.16.110
Statementofprosecutingattorneyifnoinformationfiled - Courtaction.
Itshall bethedutyoftheprosecutingattorneyofthepropercountytoinquireintoand
make full examination ofall the facts and circumstances connected with any case of
preliminary examination, as proVided by law, touching the commission ofany offense
wherein the offendershall be committed tojail, or become recognized orheld to bail;
and ifthe prosecuting attorney shall determine in any such case that an information
oughtnottobefiled, heorsheshall make,subscribe,and filewiththeclerkofthecourt
astatementin writingcontaining his orherreasons, in fact and in law, fornotfiling an
information in such case, and such statementshall be filed atand duringthesession of
court at which theoffendershall be held forhis or herappearance: 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
informationandbringthecase totrial.
The duties defined above are almostword fOi word as when enacted in 1890, and the words
used cannot legally be twisted and distorted by corruptand incompetentpersons assumingthe offices
ofjudgesandprosecutors.
MemorandumofLaw in SupportofFirstAmendmentCriminalComplaints Page 6of10
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 court 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
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 ofKennebeck, 25 Me.
291; Heffner v. Commonwealth, 28 Pa. 108; Wellington's Petitioners, 16 Pick. 87;
People v. Regents ofUniversity, 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 if 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 ofMarshall 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, it 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 of First Amendment Criminal Complaints Page 8 of 10
must determine first and finally who shall 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 that he would not interfere
with the duties or doings of that officer. The respondent's brief states that 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 at 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 SSSS 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 committing 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 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 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) that 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 First Amendment Criminal Complaints Page 9 of 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."
Dc;-bLy- I Respectfully submitted this e-tday of 2014 by the people on Stevens County.
Memorandum of Law in Support of First Amendment Criminal Complaints Page 10 of 10