Does The Misdemeanor Fellow Officer Rule Still Exist? Apparently So!

Sometimes I wonder if the theory of “separation of powers” actually means anything. In practice, it seems more like linguistic calisthenics than anything else – if we call it by a fancy term, people will think it’s okay.

Last year, the Washington State Supreme Court issued its decision in the case of State vs. Ortega, 177 Wash.2d 116 (2013), which clarified that police officers do not have statutory arrest authority for misdemeanor crimes (as opposed to felonies) that were not witnessed by them. In other words, for most misdemeanor offenses the officer who makes the arrest must have some personal knowledge of the criminal activity and cannot rely solely on the observations of other officers. Civil liberties groups were thrilled that the Court issued a decision protecting individual privacy rights. Or did it?

Well, apparently our Legislature has an easy fix when the Judiciary points out a problem. Substitute House Bill 2057, which becomes effective on June 12, 2014, allows warrantless arrests for misdemeanors committed “in the presence of an officer” (vs. “the” officer). This gives much broader statutory authority to law enforcement, and in essence “undoes” the Ortega ruling.

This is partly a fight between branches of government for control, but also somewhat of an end-around that troublesome separation of powers doctrine. Here, the Supreme Court spelled out for the Legislature what the problem was and how to fix it, and the Legislature duly followed the Court’s directions. The end result is that the courts are not “checking and balancing” the power of congress, but rather assisting legislators in how to best draft their laws to achieve the result they want.

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