Citing his emergency powers and the need to help courts “maintain the criminal justice system” during the global Covid-19 pandemic, Washington Governor Jay Inslee waived the requirement that the government file criminal charges pursuant to the existing statute of limitations. A statute of limitations is the time limit imposed on a prosecuting authority, mandating that it file a criminal charge within a specific period of time from the date of the incident or not at all. For misdemeanors and gross misdemeanors, including Washington DUI charges, that time limit is two years. Felony statute of limitations are based on the nature and severity of the alleged offense. The questions raised by this executive order would seem to be 1) What impact, if any, will this have on charges that are still awaiting filing; 2) Does the governor have the authority to order this extension; and 3) Is this extension really necessary?
Impact of Covid-10 Statute of Limitations Extension
The reality is that the governor’s proclamation will have very little impact on most cases that are awaiting filing and are still within their statute of limitations. First, the proclamation currently only extends to May 14, 2020. While it is certainly possible that the Washington statute of limitations ordinances could be waived further should Stay at Home orders be extended, as it stands right now only cases that are sitting with about 30 days of their filing expiration are being affected. Taking DUI cases as an example, if a DUI related incident occurred on or before April 15, 2018 (two years prior to this writing), under the statute of limitations the government would have lost its ability to file such cases. The statute of limitations would have expired. What the governor’s proclamation has essentially done is given the “state” extra time to file DUI charges (or other misdemeanor offenses) that occurred between April 15, 2018 and May 13, 2018. The statute of limitations for those dates is now, by proclamation, May 14, 2020.
While there have been excessive delays in filing DUI charges in recent years, mostly due to Washington State Patrol blood testing delays, prosecutors rarely take the full two years to file DUI charges. Even excessive delays are in the neighborhood of twelve months from the date of incident. The take away here is that if a DUI charge is this close to its statute of limitations, realistically it wasn’t going to be filed anyway. Either the state had fully investigated the charge and made a conscious decision not to file it or the case somehow got “lost in the shuffle”.
Does the Governor Have Authority to Extend Expiring Statute of Limitations?
While the current global and local health emergency certainly grants the leader of the state’s executive branch emergency powers he ordinarily would not enjoy, is this actually one of them? Like the federal government, our state government is divided into three branches; executive, legislative and judicial. The role of each is to act as a balance on the power of the others. In its simplest terms, the role of the legislative branch is to enact laws. It is the role of the executive branch to enforce laws. The judicial branch interprets and rules on disputes regarding those laws. The creation of a statute of limitations clearly falls under the authority of the legislative branch. In normal times there would be no argument that the governor or any member of the executive branch, could not enact any changes to this statute. Even more problematic is that in this situation one member of the executive branch (the governor) is enacting a law for the sheer purpose of assisting another member of the executive branch (prosecuting agencies). And to the detriment of a specific class of individuals (persons awaiting the expiration of a statute of limitations). If charges are indeed filed after the natural and original expiration date, expect challenges to the governor’s authority to be filed by way of motions and appeals. Prosecuting agencies relying on this proclamation may be doing so at their peril.
Interests of Justice Didn’t Necessitate Covid-19 Extension
Whether the governor has the authority to make this emergency proclamation and override the Washington legislature’s authority, it is not something that the current Covid-19 courtroom closures necessitate. Prosecutors are still working. However, the stay at home orders and court room closures mean that they have even more time to spend on administrative functions such as case filings. And case filings are not done in open court. A simple document is drafted and then filed with the court. That activity can, and is, still occurring. The fact that hearings, such as arraignments and first appearances, are being delayed has no bearing on the administrative filing of the charge. That can still be easily accomplished and in fact, prosecutors actually have more time now to spend on those activities than before. Prosecuting authorities really didn’t need this extension.
As attorneys like to say, “at the end of the day” extending the statute of limitations for 30 days on cases that are about to expire during that 30 day period has little or no impact on the state’s ability to “maintain the criminal justice system”. Cases that are this deep into expiration period were highly unlikely to be filed to begin with. But to assert that the prosecuting attorneys across the State of Washington somehow needed this extra time to do that which they had neglected for up to two years, or more, and actually had been inadvertently afforded more time to do anyways seems…disingenuous.