Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       20548-7-III
Title of Case:       City of Yakima V Glenn James Mollett
File Date:           02/13/2003


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Yakima County
Docket No:      01-1-00688-1
Judgment or order under review
Date filed:     09/14/2001


                                     JUDGES
                                     ------
Authored by Stephen M Brown
Concurring: Dennis J. Sweeney
            Frank L Kurtz


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            John A. Jr Maxwell
            Attorney at Law
            PO Box 22680
            Yakima, WA  98907-2680

            John David Winfrey III
            Reed McClure
            601 Union St Ste 4901
            Seattle, WA  98101-3920

Counsel for Respondent(s)
            Jeffrey R. Cutter
            Attorney at Law
            City of Yakima Legal Dept
            200 S 3rd St
            Yakima, WA  98901-2830

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF YAKIMA,                                  ) No. 20548-7-III
                                                 )
               Respondent,                       ) Division Three
                                                 ) Panel Eight
          v.                                     )
                                                 ) PUBLISHED OPINION
GLENN JAMES MOLLETT,                             ) )
               Petitioner.                       )
     BROWN, C.J.--Article I, section 20 of the Washington Constitution
partly provides a criminal defendant 'shall be bailable by sufficient
sureties.'  The City of Yakima charged Glenn Mollett with telephone
harassment.  After he failed to appear for a summons, the Yakima City
Municipal Court set Mr. Mollett's bail at $10,100 'cash only.'  Mr. Mollett
unsuccessfully challenged the 'cash only' requirement in the Municipal
Court, and in his appeal in the Yakima County Superior Court.  We granted
discretionary review.  Mr. Mollett contends 'cash only' bail violates CrRLJ
3.2(a) and article I, section 20 of the Washington Constitution.  We do not
reach the constitutional question because we conclude the court rule, under
these circumstances, does not permit cash only bail.  Accordingly, we
reverse.
FACTS
On February 1, 2001, the City of Yakima (City) charged Mr. Mollett with two
counts of telephone harassment in violation of the Yakima Municipal Code.
Having been served with a summons, Mr. Mollett did not appear at his
arraignment hearing in the Yakima City Municipal Court.  The Municipal
Court ordered a bench warrant and set bail at $10,000 plus $100 warrant fee
'cash only.'  Clerk's Papers (CP) at 47.  The City arrested Mr. Mollett on
March 13, 2001 and confined him in lieu of $10,100 'cash only' bail.  CP at
47.  On March 20, Mr. Mollett appeared before the Municipal Court for a
bail hearing and requested his bail be made bondable.  The Municipal Court
denied the request and ordered Mr. Mollett held in lieu of $10,100 'cash
only' bail.  CP at 47.  Linda Mollett posted the $10,100 in bail on April
4, thus effecting Mr. Mollett's release.  On April 6, the Yakima County
Superior Court dismissed Mr. Mollett's writ of habeas corpus as moot.
     On April 9, Mr. Mollett filed a notice of appeal to the Yakima County
Superior Court.  Mr. Mollett argued ''cash only'' bail violates article I,
section 20 of the Washington Constitution and the applicable court rules.
CP at 29.
     The superior court denied the appeal and entered consistent findings
of fact and conclusions of law.  A commissioner of this court granted
discretionary review.

ANALYSIS
The issue is whether the trial court erred in interpreting CrRLJ 3.2(a)(5)
and (7) to authorize 'cash only' bail.  Because this issue is dispositive,
we do not reach the question of whether our constitution generally permits
'cash only' bail.
     This case is moot.  Mr. Mollett gained his release in early April
2001; therefore, this Court can offer no effective relief.  See In re
Detention of Swanson, 115 Wn.2d 21, 24, 793 P.2d 962, 804 P.2d 1 (1990).
But, we will review a moot case that involves 'matters of continuing and
substantial public interest.'  Id; see also In re Detention of C.W., 147
Wn.2d 259, 270, 53 P.3d 979 (2002); Sorenson v. City of Bellingham, 80
Wn.2d 547, 558, 496 P.2d 512 (1972).  The criteria the reviewing court
considers in determining the existence of a continuing and public interest
are:  (1) the public or private nature of the question presented; (2) the
desirability of an authoritative determination which will provide future
guidance to public officers; and (3) the likelihood that the question will
recur.  Swanson, 115 Wn.2d at 25 (citing Dunner v. McLaughlin, 100 Wn.2d
832, 838, 676 P.2d 444 (1984)).
     The proper form of bail is a matter of continuing and substantial
public interest.  The lack of applicable case law in Washington and the
record below illustrate a need to provide judicial guidance on this issue.
And the problem is likely to recur given the busy criminal dockets in this
division.  Accordingly, it is appropriate to review the merits of Mr.
Mollett's appeal.  See State v. Brooks, 604 N.W.2d 345, 348 (Minn. 2000)
('{we} reach the merits of his {moot} case because cash only bail orders
are capable of repetition, likely to evade judicial review, and an issue of
statewide significance.').
We further note Mr. Mollett opens with a constitutional theory that later
overlaps much of his court rule argument.  We first address the court rule
argument to decide if we can resolve the matter without addressing the
constitutional issue.  See State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101
(1981) (noting an appellate court will avoid a constitutional issue if it
can find any other basis for its decision).
The application of a court rule to a particular set of facts is a question
of law, reviewed de novo.  Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404
(2001).  'When interpreting court rules, the court approaches the rules as
though they had been drafted by the Legislature.'  State v. Greenwood, 120
Wn.2d 585, 592, 845 P.2d 971 (1993) (citing State v. McIntyre, 92 Wn.2d
620, 622, 600 P.2d 1009 (1979)).  Accordingly, we will apply rules of
statutory interpretation in examining CrRLJ 3.2(a).  See id. (interpreting
CrR 3.3).
CrRLJ 3.2(a) partly states:
The court shall impose the least restrictive of the following conditions
that will reasonably assure that the accused will be present for later
hearings, will not significantly interfere with the administration of
justice and not pose a substantial danger to others or the community or, if
no single condition gives that assurance, any combination of the following
conditions:
     (1) Place the accused in the custody of a designated person or
organization agreeing to supervise the accused;
     (2) Place restrictions on the travel, association, or place of abode
of the accused during the period of release;
     (3) Require the execution of an unsecured bond in a specified amount;
     (4) Require the execution of a bond in a specified amount and the
deposit in the registry of the court in cash or other security as directed,
of a sum not to exceed 10 percent of the amount of the bond, such deposit
to be returned upon the performance of the conditions of release or
forfeited for violation of any condition of release;
     (5) Require the execution of a bond with sufficient solvent sureties,
or the deposit of cash in lieu thereof;
     (6) Require the accused to return to custody during specified hours;
or
     (7) Impose any condition other than detention deemed reasonably
necessary to assure appearance as required, assure noninterference with the
trial and reduce danger to others or the community.

The Superior Court reasoned CrRLJ 3.2(a)(5) and (7) authorized 'cash only'
bail.
     CrRLJ 3.2(a) sets forth release conditions that vary in severity.  The
least restrictive bail provision is an unsecured bond in a specific amount.
CrRLJ 3.2(a)(3).  A more restrictive provision is a bond, apparently
unsecured, in a specific amount accompanied by a deposit 'in cash or other
security' of a sum not exceeding 10 percent of the face value of the bond.
CrRLJ 3.2(a)(4).  Another restrictive provision is a surety bond in a
specified amount, 'or the deposit of cash in lieu thereof.'  CrRLJ
3.2(a)(5).  The final provision permits the court to impose 'any condition
other than detention.'  CrRLJ 3.2(a)(7).
The City argues CrRLJ 3.2(a)(5) authorizes 'cash only' bail.  Mr. Mollett
contends otherwise, partly relying on State ex rel. Jones v. Hendon, 66
Ohio St. 3d 115, 609 N.E.2d 541 (1993).  Hendon is instructive because it
interpreted a Ohio court rule authorizing the trial court to ''{r}equire
the execution of a bail bond with sufficient solvent sureties, or the
execution of a bond secured by real estate in the county, or the deposit of
cash or the securities allowed by law in lieu thereof.''  Hendon, 609
N.E.2d at 542 n.1 (quoting Ohio Crim.R 46(C)(4)).  The Ohio court rejected
the State's argument that the rule authorized a 'cash only' bond, reasoning
in part the rule 'constitutes but a single condition which the judge may
impose - the condition of a bond.'  Hendon, 609 N.E.2d at 544.  'Once a
judge chooses that condition and sets the amount of bond, we find no
legitimate purpose in further specifying the form of bond which may be
posted.'  Id.  The Hendon court further reasoned that the result of 'cash
only' bail would be to 'restrict the accused's access to a surety' in
violation of the Ohio constitution.  Id.  Ohio's constitution 'provides in
part that '{a}ll persons shall be bailable by sufficient sureties' in
noncapital cases.'  Id. at 543 (quoting Ohio Const. art. I, sec. 9).
The City contends Hendon 'essentially eviscerated the options available to
a judge' in making bail determinations.  Respondent's Br. at 22.  To the
contrary, we find Hendon persuasive.  CrRLJ 3.2(a) sets forth separate and
discrete conditions of release.  CrRLJ 3.2(a)(5) sets forth a single
condition, a bond, 'or the deposit of cash in lieu thereof.'  The 'deposit
of cash' clause is an option the trial court may order, but not to the
exclusion of the bond.  The City reads the 'deposit of cash' clause as
wholly independent.  But when CrRLJ 3.2(a) is read in its entirety, it is
more reasonable to interpret the 'deposit of cash' clause as an option the
trial court may order along with the primary condition of a bond.  If the
rule drafters intended to authorize 'cash only' bail, they could have
easily set it out as a discrete condition of release.  Accordingly, we
conclude CrRLJ 3.2(a)(5) does not authorize 'cash only' bail to the
exclusion of a bond.
The City further argues, and the superior court agreed in its conclusions
of law, that the broad 'any condition' language of CrRLJ 3.2(a)(7)
authorizes 'cash only' bail.  But CrRLJ 3.2(a)(7) authorizes 'any condition
other than detention.'  (Italics added.)  It would be inconsistent with the
rule for the trial court to impose 'cash only' bail knowing the defendant
probably lacked the means to pay it.  See Hendon, 609 N.E.2d at 544
(reasoning 'the only apparent purpose in requiring a 'cash only' bond to
the exclusion of the other forms provided in {the rules} is to restrict the
accused's access to a surety and, thus, to detain the accused in violation
of {the State constitution}'); see also Brooks, 604 N.W.2d at 353 (noting
'cash only bail orders can be used to deny bail to those accused who have
other means of providing sufficient surety').1
And such an application of CrRLJ 3.2(a)(7) would also be inconsistent with
the purposes underlying the rules of securing 'simplicity in procedure,
fairness in administration, effective justice, and the elimination of
unjustifiable expense and delay.'  CrRLJ 1.2.  It is more likely the rule
drafters would have set forth a separate subsection specifically
authorizing 'cash only' bail if that was their intent.
The City relies also on two Washington Court of Appeals decisions.  State
v. Paul, 95 Wn. App. 775, 976 P.2d 1272 (1999); In re Marriage of Bralley,
70 Wn. App. 646, 855 P.2d 1174 (1993).  Both cases involve cash bail and
they both contain informative discussions of the differences between a
surety and bail.  See Paul, 95 Wn. App. at 777-78; Bralley, 70 Wn. App. at
652-54.  Neither case broaches the ultimate issue under consideration here,
the trial court's authority to order 'cash only' bail.  Accordingly,
neither Paul nor Bralley support the City's position on this issue.
In accordance with the foregoing authorities, we reason 'cash only' bail is
not authorized under CrRLJ 3.2(a).  Thus, the remaining issue becomes
whether 'cash only' bail violates article I, section 20 of the Washington
Constitution.  In light of our holding thus far, and considering the
authorities discussed above, we decline to reach the constitutional issue.
CONCLUSION
     'Cash only' bail is not authorized under CrRLJ 3.2(a)(5) and (7).
     Reversed.

                                   Brown, C.J.

WE CONCUR:

Sweeney, J.

Kurtz, J.

1 In a footnote, Mr. Mollett raises a fleeting equal protection argument
based on article I, section 12 of the Washington Constitution and the
Fourteenth Amendment to the United States Constitution.  In essence, Mr.
Mollett argues 'cash only' bail places an undue hardship on low income or
indigent defendants.  Absent more complete and reasoned briefing, we will
not delve further into this constitutional thicket.  See Holland v. City of
Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).