Wash. Supreme Court published opinion — 893900.pdf

importance of this constitutional provision. And I agree with the majority that the

trial court's October 18, 2012, order in this case violated that constitutional

provision: it required the defendant to post cash with the court and prohibited him

from using a surety. Majority at 21 ("We hold that the October 18, 2012 order

entered in this case improperly prohibited Barton's access to a surety as guaranteed

by article I, section 20.").

But, as the majority acknowledges, the trial court's October 18, 2012, order

"tracked the language of [Criminal Rule] CrR 3.2(b)(4)." Majority at 16. And as

the majority further acknowledges, even the portion ofthe trial court's October 18,
             
State v. Barton (Peter Richard), No. 89390-0
(Gordon McCloud, J., Concurrence)

2012, order barring the defendant from using a surety to post cash with the court

tracked CrR 3 .2(b)(4), when read in context with the rest of that rule. Majority at

18-19. A fortiori, CrR 3.2(b)(4) itself-and not just the trial court's order which

relied on that rule and tracked its language-violates article I, section 20.

The majority, however, makes a complicated argument about why CrR

3 .2(b)(4) nevertheless remains constitutional. Majority at 21 ("CrR 3 .2(b)(4) ...

remains constitutional when read in the context of the other provisions of subsection

(b)."). It reasons that the rule was fine, but the trial court erred in following that

rule to the letter.

I disagree. The trial court did follow the rule. The trial court's order was

unconstitutional in this case. The subsection of CrR 3 .2(b) that the trial court tracked

was unconstitutional as applied in this case. I don't understand how one can fault