The Volokh Conspiracy

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Criminal Law

Private Prosecutions

Some states still allow ordinary citizens (and not just the usual criminal prosecutors) to initiate a prosecution of someone they accuse of a crime.


I've been particularly interested in citizen prosecutions ever since I became a criminal defendant in one (for only a short time, thankfully). Yesterday's Washington Supreme Court decision in Stout v. Felix offers an example, though concludes the prosecution was barred by the statute of limitations:

This case asks us to decide whether a citizen's affidavit is sufficient to initiate criminal proceedings under the citizen complaint rule, CrRLJ 2.1(c). Under the citizen complaint rule, "[a]ny person" may initiate criminal proceedings. CrRLJ 2.1(c). To begin the process, the person must appear before a judge to present their allegations. They may also file an affidavit, and the judge may provide the potential defendant, the prosecuting attorney, and other potential witnesses an opportunity to be heard. Then, the judge considers the evidence, makes a probable cause determination, and weighs a number of factors before authorizing the citizen to sign and file the criminal complaint. [Even if the judge finds probable cause is present, the weighing of the factors, noted in the concurring opinion quoted below, may lead the judge to refuse to authorize the prosecution. -EV]

We hold that under CrRLJ 2.1, criminal proceedings are initiated by the filing of a criminal complaint, and an affidavit under CrRLJ 2.1(c) is only part of the citizen's request for the court's approval to file the complaint. Here, the criminal complaint was not filed before the expiration of the statute of limitations. Therefore, we affirm the district court's dismissal of the citizen complaint as untimely.

Here is a quick summary of the background facts:

Felix is a Department of Social and Health Services social worker who was involved in child welfare matters regarding Thomas Stout's two children. On October 4, 2016, Felix signed two dependency petitions under penalty of perjury, alleging that Stout's children were dependent. Stout disputed Felix's factual account in the dependency petitions. He alleged that Felix committed the crime of false swearing when she made certain statements in the petitions. The crime of false swearing is a gross misdemeanor with a two-year statute of limitations….

Justice Mary Yu (joined by Justice Sheryl Gordon McCloud) wrote separately, to argue that private prosecutions are unconstitutional, a matter that the majority didn't reach (for a contrary view, see this amicus brief by lawyer Adam P. Karp):

No elected prosecuting attorney has ever charged Felix with any crime relating to Stout's allegations. No grand jury has charged her, either. No one has. Stout failed to timely file his would-be "charges," and every court to consider his arguments for disregarding the statute of limitations (and Felix's constitutional rights) has correctly rejected them. Yet Felix has been forced to defend herself against Stout's attempted "prosecution" in three different courts for nearly three years. This bizarre circumstance was brought about by the "citizen complaint rule," an easily abused, judge-made rule that does nothing to advance justice.

The citizen complaint rule is not merely bad policy. It also derogates our constitutional vision of separation of powers among three branches of government. Within this constitutional framework, a judicial officer cannot determine in the first instance whether criminal charges should be filed against an individual without usurping the authority of the executive branch. But that is precisely what the plain language of the citizen complaint rule requires judges to do. Therefore, on its face, the citizen complaint rule violates the separations of powers doctrine, "'one of the cardinal and fundamental principles of the American constitutional system'" that "forms the basis of our state government." In failing to acknowledge this constitutional violation, the majority signals its view that a citizen complaint is an appropriate means of seeking public redress through criminal prosecution for a private grievance. I do not share this view.

The citizen complaint rule regularly subjects targeted individuals to putative criminal actions based on fatally flawed citizen affidavits that are legally barred, factually baseless, or both. Before these actions are inevitably dismissed, the would-be defendants, third parties, and the general public are forced to incur substantial, and in some cases irreparable, harm….

In every criminal case, "[e]ach branch of government plays a distinct role." The Washington Constitution provides that the executive branch is represented by the prosecuting attorney, "a locally elected executive officer who has inherent authority to decide which available charges to file, if any, against a criminal defendant." Thus, "[t]he charging discretion of prosecuting attorneys is an integral part of the constitutional checks and balances that make up our criminal justice system." Yet on its face, the citizen complaint rule permits an entire criminal case to proceed from investigation to charging to conviction and sentencing with no participation whatsoever from any member of the executive branch. The separation of powers violation seems so obvious as to be beyond debate.

However, criminal prosecutions initiated by private citizens undoubtedly have a long history in this state and throughout the country. Amicus [Adam P. Karp] relies heavily on this history to contend that the citizen complaint rule cannot possibly be unconstitutional because it "has been Washington law (in various forms) from the early days of its statehood and even before." "Various forms" is the key phrase.

In its historical, statutory form, the citizen complaint rule was intended to serve as a check on executive power by reserving some portion of charging authority to be exercised directly by the people. Regardless of the efficacy, wisdom, or constitutionality of that historical system (all of which are questionable), the modern, judge-made citizen complaint rule does not operate that way. Instead of reserving charging authority to be exercised by the people, transfers charging authority from the executive to the judiciary. The people reserve nothing.

As long recognized by the district court judges who must apply the citizen complaint rule, this arrangement "violates the separation of powers doctrine, requiring a judge to serve as both prosecutor and judicial officer." …

In its historical, statutory form, the citizen complaint rule appears to have provided a significantly narrower role for the judicial officer, which was limited to the legal determination of probable cause …. By contrast, the modern, judge-made citizen complaint rule provides the complaining citizen only the right to "appear before a judge empowered to commit persons charged with offenses against the State." As the majority correctly notes, the complainant's appearance, or any affidavit they may submit, "does not initiate criminal proceedings." If probable cause is found, it is the judge, not the complainant, who decides whether criminal charges should be filed based on seven discretionary, nonexclusive factors:

(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;

(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.

Washington's populist history is still reflected in grand jury proceedings, which (unlike citizen complaints) are specifically contemplated by our state constitution. But it is not reflected in the modern, judge-made citizen complaint rule, which merely shifts charging authority from one representative branch (the executive) to another (the judiciary)….

Given the above understanding, it should be clear that the citizen complaint rule blatantly violates the separation of powers doctrine by requiring a judicial officer to exercise the charging authority that is supposed to be vested in the executive branch. This throws off the careful balance that the coordinate branches of government are supposed to provide in every criminal case …. "[P]rosecutors check the power of the legislature and the judiciary by deciding whom to charge and which available charges and special allegations to file in any given case …."

In practice, it appears that most district court judges faced with citizen complaints generally agree with the elected prosecutor's decision as to whether charges should be filed. Thus, the unconstitutionality of requiring the judge to make that decision is still present, but it has no practical effect on the disposition of the case. This results in limited appellate precedent on the citizen complaint rule and provides an excellent demonstration of how the rule in operation does nothing to advance its supposed populist purpose. But if the judge were to disagree with the prosecutor, it would prompt precisely the type of interbranch conflicts that the separation of powers is supposed to mitigate.

What happens if the judge decides that charges should be filed but the elected prosecutor, "tempered by mercy," refuses to proceed with the case? … [At oral argument, Stout] suggested that in such a circumstance, the private citizen should "have the opportunity to pursue a prosecution on his own and hire an attorney to do so." That is impossible.

Any licensed attorney retained by Stout would be ethically prohibited from acting as a prosecutor due to the obvious conflict of interest that arises where an alleged crime victim pays the legal fees of the prosecuting attorney—the attorney is funded by someone who is personally invested in a conviction, but "[t]he prosecutor's duty is to seek justice, not merely convictions." And any nonattorney would, of course, also be prohibited from acting as a prosecutor because the "[u]nlawful practice of law is a crime."

Moreover, the judge could not order the elected prosecutor to pursue criminal charges because that would be an "improper and destructive exercise[ ]" that directly "undermine[s] the operation of another branch." But the judge also could not appoint an outside attorney to prosecute an ordinary criminal case "over the objection of an able and willing prosecuting attorney." Thus, the citizen complaint rule purports to allow judges to authorize prosecutions without prosecutors. That is absurd….

In addition to the damage caused by all such cases, every attempted private prosecution causes harms unique to the case. Just one example from this case is Stout's mistitling his appeal to superior court as "State v. Felix" to make it appear as though this were an actual criminal case, instead of the unsuccessful citizen complaint case that it is. This was an intentional act of dishonesty rather than a simple mistake; Stout did the same thing in district court, and the judge explicitly admonished him that the case title "is and it should be[,] on our documents [and] also on our computer system[,] In Regards to the Citizen's Complaint, Petitioner Thomas Stout."

The superior court found that Stout's dishonesty over something so petty as the case title caused Felix "difficulties performing her job functions as she is having difficulty accessing secure facilities to work with clients who are incarcerated." Felix is an investigator with the Child Protective Services division of the Department of Children, Youth, and Families, and she sometimes needs to access secure facilities to timely complete her investigations…. Felix herself will suffer detrimental impacts well into the future (potentially for the rest of her life) because, although it was wrongfully filed in bad faith, Stout's mistitled appeal is now a court record that is presumptively open to the public.

Felix has already explained that having this apparent criminal case on her record could cause difficulties if she "were to need a background check for employment" because "the way this is filed would cause a potential employer to believe that [she has] a pending criminal charge." However, to get the record redacted or sealed, Felix must bring another motion in which she will bear the burden of proving that she will suffer future "hardships" that "outweigh[ ] the public's interest in the open administration of justice." She is unlikely to succeed; even a family's "very important" interest in finding secure, appropriate housing may be deemed "[p]ure speculation" if a court determines that "it is not impossible for them to obtain housing" of some kind.

An elected prosecutor would be legally and professionally accountable for such detrimental impacts…. Stout is neither an attorney nor an elected official, so he will not be held accountable to any standards beyond his own. It is therefore unsurprising that Stout was apparently pleased by the negative impacts of his dishonesty, suggesting that the "inconvenience" Felix suffered was appropriate retaliation for the "humiliation" he felt as the alleged victim of Felix's alleged crime. [Clerk's Papers] at 27 (antiharassment protection order prohibiting Stout from coming within 500 feet of Felix's job or home for 10 years based on his "threat to [a] State employee due to her duties").

Stout's misuse of the judicial process and lack of concern for the public interest typifies the challenges that arise when private, interested individuals attempt to play the "distinctive role of the prosecutor" because of the ever-present "potential for private interest to influence the discharge of public duty." These problems are compounded when the private individual is not trained to discern between ethical and unethical conduct for an attorney in the highly specialized setting of a criminal prosecution, where another person's liberty may be put at risk based on a complainant's misunderstanding of (or disregard for) fundamental legal concepts.