State v. Fitzsimmons
620 P.2d 999
Wash.
1980
Check Treatment
Per Curiam.

The United States Supreme Court, by a 5-to-4 vote, has granted a writ of certiorari in this case and vacated our judgment, found at 93 Wn.2d 436, 610 P.2d 893 (1980). We now respond to the Supreme Court's remand in its order requiring this court to consider whether Fitz-simmons "is based upon federal or state constitutional grounds, or both."

A review of the language of this court's opinion in Fitz-simmons affirms the decision's primary independent reliance on state court rule JCrR 2.11. State v. Fitzsimmons, supra at 441, 449. The court rules are promulgated as a matter of state law pursuant to statute, RCW 2.04.190, see generally RCW 2.04, and as part of the State Supreme Court's inherent rulemaking powers as "an integral part of the judicial process." State v. Smith, 84 Wn.2d 498, 502, 527 P.2d 674 (1974). The constitutional analysis was undertaken after the holding that Mr. Fitzsimmons'

rights under these rules were violated when he was denied the information and means necessary to allow him to contact appointed counsel.

(Italics ours.) State v. Fitzsimmons, supra at 441. This discussion of constitutional law merely helps demonstrate the application and effect of the court rules that provide the *859 rationale for the ruling. Constitutional analysis in the Fitz-simmons opinion is "persuasive" in character, see Minnesota v. National Tea Co., 309 U.S. 551, 556, 84 L. Ed. 920, 60 S. Ct. 676 (1940). However, JCrR 2.11 provides an independent and adequate state ground for our decision. See Fox Film Corp. v. Muller, 296 U.S. 207, 210, 80 L. Ed. 158, 56 S. Ct. 183 (1935).

With regard to the support to Fitzsimmons' exploration of constitutional provisions, we relied on Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966). Heater itself cites both federal and state constitutional provisions for its holding, which predated JCrR 2.11. Thus, the precedent for any constitutional holding, which is in any event only supportive of the analysis of court rule provisions, is grounded in state as well as federal constitutional principles. Reliance on federal precedent and federal constitutional provisions would not preclude us from taking a more expansive view of the right to counsel under state provisions should the United States Supreme Court limit federal guaranties in a manner inconsistent with Heater and Fitzsimmons. See Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 909, 592 P.2d 341, 346, 153 Cal. Rptr. 854 (1979).

Having reexamined our opinion pursuant to the Supreme Court's remand, and coming to the conclusions set forth above, we affirm the opinion found at 93 Wn.2d 436 with no alterations or amendments.