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Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1978 No. 30 -
Attorney General Slade Gorton


Where an information charging criminal conduct by a juvenile offender has been properly filed by the prosecuting attorney as authorized under RCW 13.40.070, the superior court is not authorized then to declare the accused eligible to enter into a diversion agreement pursuant to RCW 13.40.080 rather than adjudicating his or her innocence or guilt.

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                                                               December 19, 1978

Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
P.O. Box 470
Newport, Washington 99156

                                                                                                                 Cite as:  AGO 1978 No. 30

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Where an information charging criminal conduct by a juvenile offender has been properly filed by the prosecuting attorney as authorized under RCW 13.40.070, is the superior court nevertheless authorized then to declare the accused eligible to enter into a diversion agreement pursuant to RCW 13.40.080 rather than adjudicating his or her innocence or guilt?

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]


            The laws of Washington relating to juvenile crime and juvenile courts were completely rewritten in the last legislative session through enactment of chapter 291, Laws of 1977, 1st Ex. Sess.  Sections 55 through 77 of that act have been designated thereunder as the Juvenile Justice Act of 1977 and are now codified as chapter 13.40 RCW.   Yours is a question of first impression requiring interpretation of several sections of the act relating to diversion agreements.

            Diversion under the law is a formally authorized alternative to prosecution.  It involves a voluntary agreement between an alleged juvenile offender and a diversion unit which ". . . may be entered into only after the prosecutor has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it."  RCW 13.40.080(1).  A "diversion unit" is a court approved entity defined in RCW 13.40.020(8) as follows:

            "'Diversion unit' means any probation counselor who enters into a diversion agreement with an alleged youthful offender or any other person or entity with whom the juvenile court administrator has contracted to arrange and supervise such agreements pursuant to RCW 13.04.040 or any person or entity specially funded by the legislature to arrange and supervise diversion agreements in accordance with the requirements of this chapter. . . ."

            RCW 13.40.080 further provides, in subsection (2), that the accused's agreement with such a unit may include some or all of the following elements:

            ". . .

            "(a) Periods of community service not to exceed one hundred fifty hours, but if the youth is attending school, no community service shall be required during normal school hours;

            "(b) Restitution limited to the amount of actual loss incurred by the victim, and the youth shall be required to make restitution to  [[Orig. Op. Page 3]] the victim unless the youth does not have the means and could not acquire the means to do so;

            "(c) In assessing periods of community service to be performed and restitution to be paid by a youth who has entered into a diversion agreement, the court officer to whom this task is assigned shall to the extent possible involve members of the community.  Such members of the community shall meet with the youth and advise the court officer as to the terms of the diversion agreement and shall supervise the youth in carrying out its terms;

            "(d) A diversion agreement shall not exceed a period of six months for a misdemeanor or one year for a felony.  Any restitution assessed during its term shall not exceed an amount which the youth could be reasonably expected to pay during this period.  If additional time is necessary for the youth to complete restitution to the victim, the time period limitations of this subsection may be extended by an additional six months; and

            "(e) An informational, educational, or counseling interview may be required at a community agency.

            "(3) . . ."

            Since, as stated at the outset, yours is basically a question of statutory interpretation, we must attempt to determine the intention of the legislature.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  The legislative intent is, of course, to be deduced, if possible, from what it has said.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  With that in mind we will look next to the relevant language used by the legislature in establishing the duties of the prosecutor1/ and the juvenile court, respectively.

             [[Orig. Op. Page 4]]

            Our approach will be to analyze the pertinent sections of the law, as they establish the chronology and substance of the juvenile prosecution process, in the order in which they come into play in that process.

            The first step in the process occurs when someone files a complaint with the court.  Such a complaint may be filed by a police officer, by some other public official or by a citizen.  That complaint is then referred directly to the prosecutor and reviewed by him for legal sufficiency under the following statutory directive of RCW 13.40.070(1):

            ". . . Complaints referred to the court alleging the commission of an offense shall be referred directly to the prosecutor.  The prosecutor, upon receipt of a complaint, shall screen the complaint for legal sufficiency.  The purpose of such screening shall be to determine whether:

            "(a) The alleged facts bring the case within the jurisdiction of the court; and

            "(b) On a basis of available evidence there is probable cause to believe that the youth did commit the offense.

            ". . ."

            Assuming that the prosecutor determines that the case is legally sufficient, he then must decide as a matter of discretion whether to file a criminal information, to release the suspect outright, or to refer the accused to a diversionary unit‑-conforming these decisions to the further requirements of RCW 13.40.070(3) through (6) which provide in relevant part as follows:

            "(3) Where a case is legally sufficient, the prosecutor shall file an information with the juvenile court if the alleged offender is one or more of the following:

            "(a) An alleged offender accused of a class A felony, an attempt to commit a class A felony, a class B felony, an  [[Orig. Op. Page 5]] attempt to commit a class B felony, assault in the third degree, rape in the third degree, or any other offense listed in RCW 13.40.020(1)(b) or (c); or

            "(b) An alleged offender with a criminal history of at least a class A or class B felony, or two class C felony offenses, or at least one class C felony offense and at least one misdemeanor or gross misdemeanor, or at least two gross misdemeanors, or at least one gross misdemeanor and two misdemeanors, or at least three misdemeanors; or

            "(c) An alleged offender accused of violating his or her diversion agreement or who wishes to be prosecuted rather than enter into a diversion agreement or who has been referred by the diversion unit for prosecution: PROVIDED, That if the prosecutor elects not to file a charge for which there is probable cause, he shall maintain a record, for one year, of such election and the reasons therefor.

            "(4) If it appears that there is probable cause to believe that an offense has been committed by a youth, the prosecutor may file an information with the juvenile court if the alleged offender is an alleged offender accused of a class C felony.

            "(5) Whenever the alleged offender is an alleged offender listed in subsection (3) of this section, the prosecutor may file an information on any other criminal complaint regardless of whether or not the other offense is listed in subsection (3)(a) of this section.  In lieu of filing an information, the prosecutor may file a motion to modify or revoke community supervision if a criminal complaint alleges a violation of a condition of community supervision.

            "(6) If an alleged offender does not fall within subsection (3) or (4) of this section, the prosecutor shall refer the complaint to the diversionary unit for the formation of a diversion agreement pursuant to RCW 13.40.080.

            ". . ."

             [[Orig. Op. Page 6]]

            Excerpting from the foregoing quotation and focusing on the underscored terms, we see that the prosecutor "shall file an information" in those certain cases enumerated in subsection (3),2/ that the prosecutor "may file an information" in the situation described in subsection (4)3/ and that he "shall refer the complaint to the diversionary unit for formation of a diversion agreement" in those cases which do not come within the ambit of either subsection (3) or (4).

            In your question you have asked us to assume that the prosecutor has elected not to divert or release the accused juvenile but, instead, has chosen to file an information as authorized under the statute.  Therefore, returning to our step-by-step review of the juvenile prosecution process, we see that the prosecutor now prepares and files with the court a formal information document which must conform to the following requirements of RCW 13.40.070(2):

            "(2) An information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.  It shall be signed by the prosecuting attorney and conform to chapter 10.37 RCW."4/

             [[Orig. Op. Page 7]]

            Both the defendant and the formal information document which the prosecutor has thus filed will then come before the court for the first time in a detention hearing conducted pursuant to RCW 13.40.050.  In the detention hearing, the court must first determine whether probable cause exists in the case.  See, RCW 13.40.050(5).  Assuming an affirmative answer in that respect, the court must then make a further determination in accordance with the following directive of RCW 13.40.050(4):

            "(4) The court shall,based upon the allegations in the information, determine whether the case is properly before it or whether the case should be treated as a diversion case under RCW 13.40.080.  If the case is not properly before the court the juvenile shall be ordered released."  (Emphasis supplied)

            Pursuant to this subsection, however, the court apparently must limit its immediate review of the matter to the four corners of the formally filed information document.  It "shall" determine therefrom "whether the case is properly before it" or, on the other hand, whether it "should be treated as a diversion case."  Accordingly, it follows that the court's role under RCW 13.40.050(4) is simply that of checking whether the prosecutor has correctly adhered to the mandate of RCW 13.40.070(6) and has, pursuant thereto, diverted the defendant who comes within that subsection.  It is clear that in other cases the court could not reasonably "base" an independent discretionary diversion decision solely on the formal document filed in the form required under chapter 10.37 RCW.  RCW 13.40.070(2).  Diversion decisions with respect to alleged offenders whose circumstances put them within RCW 13.40.070(3) or (4) will often be based in significant part upon a wide range of factors, depending not only upon the strength of the state's case but also upon the personal characteristics and social circumstances of the accused.5/   Much of this data, however, would not be available to the court in its limited review of the formal document filed pursuant to chapter 10.37 RCW.  Therefore, we must conclude that RCW 13.40.050(4) gives the court no independent authority to divert juvenile defendants.

             [[Orig. Op. Page 8]]

            Support for this conclusion can be found in the new Juvenile Court Rules.6/   Rule 6.1 provides as follows:

            "A juvenile's eligibility for diversion shall be determined pursuant to RCW 13.40.070 and 13.40.080."

            This court rule seems totally consistent with the statutory analysis above.7/   RCW 13.40.070 and 13.40.080 address only the power of the prosecutor to refer defendants for diversion and are very explicit in this regard.  This legislative silence regarding a role for the courts implies an intent to limit this power to the prosecutor.  Incorporation of these sections by this reference in the Juvenile Court Rules thus supports the position that judicial discretion is precluded at this stage of the proceedings.

            Another important aid to construction of these statutes is the legislature's statement of purpose in RCW 13.40.010.  While that section is without operative effect in itself, it nevertheless should be used as a significant guide to understanding the intended effect of the operative sections.  Hartman v. Wash. St. Game Comm'n, 85 Wn.2d 176, 532 P.2d 614 (1975).  RCW 13.40.010 provides in relevant part that among the purposes of the Juvenile Justice Act of 1977 is to:

            "(j) Provide for a clear policy to determine what types of offendersshall receive punishment, treatment, or both, and to determine the jurisdictional limitations of the courts, institutions, and community services."  (Emphasis supplied)

            The underscored portions of the excerpted language clearly manifest a legislative intent to draw boundaries for the various agencies involved in the criminal process and to  [[Orig. Op. Page 9]] establish "jurisdictional limitations of the courts, institutions and community services."  We have earlier indicated that RCW 13.40.070 and RCW 13.40.080 carefully articulate the prosecutor's role in the initiation of the diversion process and that those same statutory provisions give the court no role at this stage of the proceedings.  An interpretation which would nonetheless authorize the court to initiate diversion in all cases would be contrary to the stated legislative purpose of establishing jurisdictional limitations.


            For the foregoing reasons we conclude that the better reading of the applicable provisions of the Juvenile Justice Act, supra, is that the legislature intended to preclude judicial diversion of defendants categorized under RCW 13.40.070(3) and (4).  We therefore answer your question, as paraphrased, in the negative.

            We trust that the foregoing will be of assistance.

Very truly yours,


Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In certain situations under the act (i.e., accusations involving misdemeanors and gross misdemeanors) the responsibilities of the prosecutor may be formally delegated by him to a juvenile court probation counselor.  See RCW 13.40.070(8), RCW 13.40.090.  In the discussion which follows we will not attempt to distinguish those situations‑-where appropriate read "probation counselor" for "prosecutor."

2/To simplify for purposes of explanation, the categorical circumstances in which the legislature has said that the prosecutor "shall" file an information under subsection (3) are as follows:  (a) grave first offenses, (b) serious instances of recidivism, and (c) instances of apparent defendant recalcitrance where either an attempt to negotiate diversion or an existing diversion agreement has failed.  Note also that even in those cases the legislature seems to have recognized a degree of prosecutorial discretion‑-as evidenced by the proviso in RCW 13.40.070(3)(c) which reads as follows:

            ". . . PROVIDED, That if the prosecutor elects not to file a charge for which there is probable cause, he shall maintain a record, for one year, of such election and the reasons therefor."

3/Apparently, this subsection applies to a suspected first-time offender ". . . if the alleged offender is an alleged offender accused of a class C felony."  RCW 13.40.070(4).

4/The referenced chapter 10.37 RCW provides generally that the information document is to be an easily understood, concise statement of the acts constituting the alleged offense.  RCW 10.37.052.

5/See Pretrial Diversion from the Criminal Process, 83 Yale Law Journal 827 (1974);Juvenile Court:  The Legal Process as a Rehabilitative Tool, 51 Washington Law Review 697 (1976).  Cf.,State v. Cooper, 20 Wn.App. 659 (Div. I 1978).

6/By an order dated June 28, 1978, the Washington Supreme Court adopted new Juvenile Court Rules effective July 1, 1978, rescinding, except as provided therein, previous rules promulgated by order dated December 31, 1968.  90 Wn.2d 1101.

7/The weight to be given Rule 6.1 depends in part upon whether the rule is determined to be one of substance or whether, on the other hand, it is determined to be a rule of procedure.  Cf., State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974).  Because the legislative provisions under scrutiny are so clearly consistent with Juvenile Court Rule 6.1, however, we need not address this issue in order to answer your question.