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.

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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.

NEXT: Justice Breyer Approaches His Retirement Like He Approaches His Judicial Decisions: With An Indeterminate, Multi-Factor Balancing Test

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  1. "Washington's populist history is still reflected in grand jury proceedings, which (unlike citizen complaints) are specifically contemplated by our state constitution."

    OK, fine, make this the mechanism by which ordinary citizens can bypass a potentlally-corrupt prosecutor.

    If the grand jury presents anyone - even in response to a citizen complaint - let the local judge appoint a special prosecutor. This prosecutor will decide if (a) the suspect is guilty and if so (b) whether it's ethically possible to convict the suspect. If both (a) and (b) are true, let the special prosecutor seek an indictment from the same jury which made the presentment (not a difficult task, I'd imagine) and prosecute the case. If on the other hand either (a) or (b) are false, the special prosecutor drops the case.

    Tell me, would this violate the "separation of powers"? Would it violate the elected prosecutor's discretion to ignore crimes they don't want to prosecute?

    1. I tried to prosecute my federal judge for her mass murder and for her crimes against humanity. I wanted to Nuremberg the nasty, nazi bitch. The Mercer County Criminal Court said, I need a law license. You stinking lawyer little tyrants have it totally rigged. Naturally no licensed dipshit would take the case despite the substantial evidence.

      1. You lawyers should be aware that your self dealt immunities fully justify violence in formal logic. Formal logic has more certainty than the laws of physics.

        1. Only 10% of common law felonies are prosecuted by the failed scumbag, toxic, licensed lawyer profession. No internet crime is prosecuted, and there are 100 million a year. The average bank robbery nets $4000, is risky, and hard physical work. The average identity theft nets $5000, is risk free, and can be done from home.

          Self help is the sole factor common to all low crime jurisdictions. This area has potential to fix the failure of the lawyer profession.

      2. "I wanted to Nuremberg the nasty, nazi bitch."

        Weird, I searched LegalZoom and didn't find a form for that.

        1. LegalZoom does not cover the mass murder of thousands of innocent people. .

  2. Professor Volokh, this is hilarious given that when I first told you about private criminal prosecutions years ago you laughed at me. When I told you about private criminal prosecutions in California from 1910 that I wrote about in 2010 you again blew me off. I even offered to go through the newspaper articles available at the California state archives, if you paid for them, but you again blew me off.

    For the benefit of those of you who might be interested in how much the law has changed for the worse since the mid-20th century, in 1957 the California legislature eliminated the common law right to use force, including deadly force, against a police officer making an unlawful arrest.

    Restore the right to private criminal prosecutions and the right to use force, including deadly force, against police officers attempting to make an unlawful arrest, and police "qualified immunity" will become irrelevant.

    1. Volokh is an American tragedy. His IQ is very high. Had he gone into STEM, his work would have added $billions in benefit to our society. He would have amassed untold wealth, enough to fund an endowed char in a law school.

      Instead, he went to law school, and became an idiot savant. He has massive knowledge of worthless lawyer trivia. Not only is he an idiot who cannot grasp what is elf evident to everyone at the diner. He does not listen to anyone.

      Beyond the $5 million in damage to the economy every year the lawyer breathes, he is doing the same to dozens of intelligent, ethical students who attend his law school classes. He is an indoctrinator into a criminal cult enterprise. His damages are in the $billion range each year via the impact of his students.

      He has no idea to what I am referring, being a total dumbass, with a great intelligence utterly destroyed by legal education. He could have contributed $billions. Now he destroys $billions in value from our economy.

      This is tragic.

    2. I imagine you find people laughing at you quite often.

  3. While allowing private prosecutions is terrible policy, I find Justice Yu's arguments against its constitutionality underwhelming. The case she cites to show that a private prosecutor can't be appointed is a statutory one, so while that's a problem, it's not one that's constitutional in nature. And the less said about her "double jeopardy" analysis, the better.

    1. Thank you for the rent seeking lawyer point of view. You lawyers prosecute 10% of common law felonies and no internet crime. You are in utter failure. When you have a guy, 20% of the time it is the wrong guy. You stink in every way. We should get rid of you.

    2. I generally agree with you, and I'm too lazy right now to read the full opinion, but I would be careful to the extent that Justice Yoo is referring to the state constitution.

      I know that I have seen some correct state decisions interpreting state constitutions, relying on, inter alia, separation of powers, that wouldn't pass muster as US Constitution decisions.

      1. I did read the full opinion, interested to see its analysis on just that point, and found it conspicuously absent. But again, if there's something I've overlooked I'm happy to be corrected.

    3. I'm not sure whether it's good policy or not but I agree that the dissent's rant against it was unconvincing.

  4. "...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…."

    The above analysis seems suspect to me. Judges appoint special prosecutors often enough that this is a non-issue to me. Cases when someone in the DA's office is accused of a crime, for example. Sometimes the DA's office can ethically prosecute one of its own (Chinese wall, etc.). And other times, it's just not feasible, so the independent, outside, prosecutor is appointed.

    I guess I'm not seeing why that could not be done in a case like this one. [Obviously, my own general thoughts and analysis have nothing to do with the particulars of this specific case...the would-be prosecutor here looks clearly like a vindictive man, and one hopes that sanctions are/were available, if this were to prove to be a bad-faith filing.]

    1. "(Chinese wall, etc.)"

      First, I've actually been told that "Chinese wall" is racist.

      Second, how well did the wall actually work?

    2. Read the case that she cites, which makes a compelling argument that the appointment is precluded by statute. (In the situations you're describing, of course, the conflict you're describing means that there isn't an "able and willing prosecuting attorney".)

      1. Ah, I realize you were probably reading the block quote from this post rather than the actual opinion. Not sure why Prof. Volokh stripped out the citations, but it's worth going to the link to see them (if you're actually interested).

  5. The dissent complains about "judge-made laws"?! What fraction of current jurisprudence is based on judge-made jaws, including qualified immunity?

  6. "the private citizen should 'have the opportunity to pursue a prosecution on his own and hire an attorney to do so.' That is impossible."

    Maybe I understand it wrong, and maybe it's bad policy, but isn't possibility demonstrated by Virginia's private prosecution option?

    Also, there was a mention of government prosecutors being "accountable", "legally". Do they or do they not have absolute immunity?

    1. "[I]sn’t possibility demonstrated by Virginia’s private prosecution option?" Yes, it is.

    2. I think that the ethics argument is interesting, but both in need of further development and ultimately unlikely to carry water.

  7. The concurrence seems to take the view that citizen prosecutions cannot be constitutional because the prosecutor is supposed to represent society and cannot possibly represent an individual, and ab attorney hired by a crime victim would be an ethical conflict of interest.

    Why in the world is this? We don’t have anything like this for civil cases. In civil cases, there’s nothing the least bit unethical about the tort victim vindicating private rights, and a lawyer who represents a tort victim doesn’t thereby have an irreparable conflict with society by doing so. Nobody thinks prosecuting attorneys are supposed to be neutral or represent society as a whole in tort cases.

    Why should criminal cases be different? Private criminal prosecutions might be bad policy. But why should they be unconstitutional? There is no text in the constitution that says anything like the ideals the concurrence espouses. Moreover, the grand jury requirement, which IS in the constitution, is the identified constitutional tool for addressing bad-faith prosecutions.

    1. Although I think the ethics argument is underdeveloped at best, criminal cases by definition serve different purposes than civil cases, and a prosecutor has different ethical obligations from a plaintiffs attorney.

      1. You also seem to be relying on the US constitution, rather than the Washington constitution, which provides the relevant separation of powers principles for this case.

    2. Civil cases compensate you for harm done to you. To an extent they can do other things, punative damages, stautatory damages, but there are limits to that, and its still wrapped up in the overall notion of compensation.

      Suppose you are assaulted. Tossing the guy who assaulted you in jail doesn't benefit you in any way except for retributive reasons. There is a need for retribution, but for very very good reasons we do not assign you the ability to do that, we give it to a separate third party assigned that role. Thats criminal.

      There are principles of the US constitution preventing certain private prosecution, the most obvious being Article III and Article II standing. The latter explicitly holds that it is a separation of powers issue for individuals to enforce certain laws, because that would violate the notion that the executive enforces the laws.

      I have no idea what the Washington Constitution says about this, but it certainly isn't implausible that their constitution prevents private prosecutions.

      1. "Tossing the guy who assaulted you in jail doesn’t benefit you in any way except for retributive reasons."

        So it seems prosecutors represent the people, but at the same time they don't represent any person in particular, certainly not the victim.

  8. I'm curious in a non-lawyerly way. Does the question here have any relationship to the new Texas abortion law? I ask because (a) I don't know, (b) I missed any mention of it in this forum, which struck me as odd, and (c) The Texas law is a law designed to evade the law - by being very difficult for anyone to legally challenge.

    So, yeah, perverse. Such is the Anti-choice movement though.....

    https://www.nytimes.com/2021/07/09/us/abortion-law-regulations-texas.html

    1. Does the question here have any relationship to the new Texas abortion law?

      I have trouble seeing a meaningful one.

    2. "a law designed to evade the law"

      Like Roe v. Wade?

  9. "Justice Mary Yu"

    That's gotta make for some awkward introductions.

    1. Then there's Sue Yoo, who last I heard was a partner at Sullivan and Cromwell.

      And just in case (for some reason) you thought I was making that up, I'm not.

  10. Hmm. She's discussed her name with Jimmy Kimmel.

  11. The case in favor of allowing private prosecutions is open and shut: namely, the last year+ of BLM and Antifa terrorists (not protesters) looting, pillaging, and burning their way through America's major cities, and all getting off scot-free because of prearranged case dismissals by Soros-funded prosecutors. If these results stand, then government at all levels is so derelict in its duty to the people that its overthrow is morally mandatory.

  12. In the 1980s, certain counties in Virginia allowed private prosecutions. I was so prosecuted, the case was dismissed, and I sued the prosecuting persons for malicious prosecution. I won compensatory and punitive damages. One of the persons was a high ranking federal marshal. The moral (among many!): prosecute privately at your peril!

    1. Shouldn't the moral be, "Maliciously prosecute at your peril! (But only if you're not a public prosecutor!)"

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