Town of Forks v. Fletcher, 5303-9-II

• Decision Date: 08 October 1982
• Docket Number: No. 5303-9-II,5303-9-II
• Citation: 33 Wn.App. 104,652 P.2d 16
• Parties: TOWN OF FORKS, Appellant, v. Brad A. FLETCHER, Respondent.
• Court: Washington Court of Appeals

Page 104

33 Wn.App. 104

652 P.2d 16

TOWN OF FORKS, Appellant, v.Brad A. FLETCHER, Respondent.

No. 5303-9-II.

Court of Appeals of Washington Division 2.

Oct. 8, 1982.

Gary Colley, Atty. at Law, Port Angeles, for appellant.

Charles A. Schaaf, Forks, for respondent.

PETRICH, Acting Chief Judge.

On June 22, 1980, defendant was charged with driving while under the influence of alcohol in violation of Forks' municipal ordinance.In a trial before the Clallam County District Justice Court(District Court), defendant was found guilty of his second DWI offense.He appealed, and on December 23, 1980, a trial de novo was held in Clallam County Superior Court.After both sides had rested, defendant moved to dismiss because the prosecution had not pleaded and proved the ordinance in question.The prosecution moved to reopen its case, but the court, stating that any such motion was too late, granted defendant's motion and issued a judgment of acquittal.The Town of Forks appeals this decision.

The primary issue is whether a district court, empowered to hear and determine violations of municipal ordinances of a municipality which does not have its own municipal court, takes judicial notice of that municipality's ordinances with the result that such ordinances are equally within the judicial knowledge of the superior court to which an appeal is taken.We answer in the affirmative and, accordingly, reverse and remand.

A municipal court is required to take judicial notice of ordinances of the municipality in which it sits; this is true regardless of whether the ordinance was properly pleaded.Olympia v. Nickert, 118 Wash. 407, 203 P. 946(1922);Spokane v. Knight, 96 Wash. 403, 165 P. 105(1917);Seattle v. Pearson, 15 Wash. 575, 46 P. 1053(1896).See alsoK. Tegland, 5 Wash.Prac. § 50, at 95 (2d ed. 1982).The rationale for this rule is that the ordinances are the particular law of the forum and, therefore, known to the local court.SeeState v. Larson, 49 Wash.2d 239, 299 P.2d 568(1956);6 E. McQuillin, Municipal Corporations§ 22.19, at 333 (3d ed. 1980).

Defendant argues that because the District Court is not a municipal court, the above rule does not apply to this case.However, defendant admits that the District Court hears cases involving violations of Forks municipal ordinances under its general jurisdiction provided by RCW 3.66.060; that the Town files its complaints directly in the District Court pursuant to RCW 3.62andRCW 3.66; and, that the Clallam County District Court maintains a separate docket at Forks for cases charging violations of Forks municipal ordinances, under the title "Forks Municipal Court."Because the District Court effectively acts as a municipal court and is conversant with the particular ordinances of the Town of Forks, and, because the above-stated rule is not dependent merely upon a court's title, we conclude that the District Court does take judicial notice of Forks' ordinances.

An appellate court takes judicial notice of any fact that the court of original jurisdiction judicially notices.Olympia v. Nickert, supra;Spokane v. Griffith, 49 Wash. 293, 95 P. 84(1908).See also6 E. McQuillin, Municipal Corporation§ 22.19, at 333-34 (3d ed. 1980).Because the District Court takes judicial notice of the ordinances of the Town of Forks, these ordinances are equally within the judicial knowledge of the Superior Court to which the appeal is taken without the necessity of pleading the ordinance as provided in CR9(i).¹

Defendant next contends that the State has no right to appeal, as any possible remand would twice place him in jeopardy for the same offense.We disagree.

Where a court's termination of legal proceedings depends upon its weighing of the evidence, any new proceedings upon the same charges involves placing defendant in double jeopardy.SeeHudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30(1981);State v. Rhinehart, 92 Wash.2d 923, 602 P.2d 1188(1979);State v. Jubie, 15 Wash.App. 881, 552 P.2d 196(1976).But here, defendant's motion to dismiss for failure to properly plead the effective ordinance was unrelated to his factual guilt or innocence of the offense of which he was accused.See, e.g., United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65(1978)(Dismissal of two counts because of prejudice from preindictment delay did not involve submission to court of defendant's guilt or innocence, and government was not precluded from appealing dismissal on grounds of double jeopardy).See alsoUnited States v. Allied Towing Corp.602 F.2d 612(4th Cir.1979).Indeed, our State Supreme Court has held that where the dismissal of an action was for lack of jurisdiction, the state has a right of appeal.State v. Buckman, 51 Wash.2d 827, 322 P.2d 881(1958);Spokane v. Lewis, 16 Wash.App. 791, 559 P.2d 581(1977)(Munson, C.J., concurring specially).

The above cases dealt with dismissals; here, the court granted defendant an acquittal.However, United States v. Scott, supra, stated at 437 U.S. page 97, 98 S.Ct. at 2197 that:

[A]defendant is acquitted only when "the ruling of the judge, whatever...