I. Introduction
Trevor W. Eckblad, the Respondent, was arrested following
the stop of the vehicle he was riding in, because a passenger was not wearing a
seat beat. He filed a motion to suppress
with the
trial court that alleged the stop was unconstitutional. The
trial court granted the motion and held
that
RCW 46.61.688 was unconstitutional
and void for vagueness. The State has
appealed.
It is Respondent’s theory of the case that: (1)
RCW
46.61.688is
unconstitutionally vague because the statute is conditioned on the phrase
“federal motor vehicle standard 208” without explanation, clarification or proper
citation; (2)
State v. Maxwellis good law in
Washington and Appellant does not have standing to challenge error in a
decision that is over nine years old, was not appealed by the state, and does
not present facts that could make the decision voidable; and (3) the federal
motor vehicle safety standards preemption clause,
49 U.S.C. § 30101(b)(1) does not apply to a state statute that seeks to
regulate personal seat belt use, not motor vehicle manufacturing performance.
II. Statement of the
Case
Appellant seeks review of a
superior
court order which found
RCW 46.61.688to be unconstitutionally vague. The trial court granted Respondent’s Motion to Suppress and held that the
stop of the vehicle in which Respondent was a passenger was unconstitutional. The
trial court suppressed the evidence
resulting from the trooper’s stop of the vehicle and dismissed the State’s
case.
III. Statement of Facts[1]
Trevor
Eckblad, the Respondent, was a passenger in a motor vehicle that was stopped
and detained by a
IV. Restatement of the Issues
A. Whether
RCW 46.61.688(2) is unconstitutionally vague because it is conditioned on the
phrase “federal motor vehicle standard 208” without citation, clarification or
explanation.
B. Whether
Appellant has standing to challenge
State v. Maxwell, 74 Wn. App. 688,
878 P.2d 1220 (1994), where Appellant
argues that the decision is “void” and that the
Court of Appeals “erred” in the
decision which was not appealed by the State at the time.
C. Whether
the federal motor vehicle safety standards preemption clause,
49 U.S.C. §
30101(b)(1) applies to a state statute that
seeks to regulate personal seat belt use, not motor vehicle manufacturing
performance.
V. Argument
The trial court found that
RCW
46.61.688 was unconstitutionally vague beyond a
reasonable doubt. On appeal, a trial
court’s conclusions of law are reviewed de novo. City of Seattle v. Megrey, 93 Wn. App.
391, 393, 968 P.2d 900 (1998) citing State v. McCormack, 117 Wn.2d
141, 143, 812 P.2d 483 (1991).
Nonetheless, a trial court’s conclusions of law are accorded great
significance by appellate courts. Megrey,
93 Wn. App. at 393 citing State v. Collins,
121 Wn.2d 168, 174, 847 P.2d 919 (1993).
The
trial court’s decision should be upheld.
A.
RCW 46.61.688 IS UNCONSTITUTIONALLY
VAGUE BY ITS REFERENCE TO “FEDERAL MOTOR VEHICLE SAFETY STANDARD 208” WITHOUT
PROPER CITATION OR EXPLANATION
In
a void for vagueness challenge, the challenger must show that either (1) the statute does not define
the offense with sufficient definiteness that ordinary people can understand
what conduct is proscribed, or (2)
the statute does not provide ascertainable standards of guilt to protect
against arbitrary enforcement.
City
of Bremerton v. Spears, 134 Wn.2d 141, 949 P.2d 347 (1998)citing State v. Corcia, 120 Wn.2d 156,
163, 839 P.2d 890 (1992) (emphasis added). “A law is unconstitutional when it forbids
conduct in terms so vague that persons of
common intelligence must guess at its meaning and differ as to its
application. Such a law would violate
the essential element of due process of law – fair warning.”
Spears 134 Wn.2d at 161 (emphasis added). See also Burien Bark Supply v. King County,
106 Wn.2d 868, 871 P.2d 994 (1986).
RCW
46.61.688states in relevant part:
(2) This section applies to
motor vehicles that meet the manual seat belt safety standards as set forth in
the
federal motor vehicle safety
standard 208. This section
does not apply to a vehicle occupant for whom no safety belt is available when
all designated seating positions as required by
federal motor vehicle safety
standard 208 are occupied.
RCW
46.61.688(2) (emphasis added). The proper citation for the phrase “federal motor
vehicle safety standard 208” is
49 C.F.R. § 571.208.
Appellant has conceded this point in footnote one (1) of its brief where
it notes that the term is “actually codified at
49 C.F.R. § 571.208
Appellant’s Brief at 4. A
corollary of Appellant’s concession is that “federal motor vehicle safety standard
208” is just a phrase, not a citation or a law in and of itself. Because
RCW 46.61.688 uses the phrase “federal
motor vehicle safety standard 208”, the statute does not define the offense
with sufficient definiteness that ordinary people can understand what conduct
is proscribed.
1.
RCW 46.61.688 Is
Unconstitutional For Failure To Provide Fair Notice.
A statute violates the due process
clause of the
Fourteenth Amendment of the United States Constitution if it
fails to afford citizens fair warning of proscribed conduct.
Spokane v. Douglass, 115 Wn.2d 171,
795 P.2d 693 (1990).
Fair notice requires that a citizen be able to discover with reasonable
research efforts the standard sought to be enforced. While ignorance of the law is no excuse, due
process does not require a citizen to employ an attorney or research state
statutes, the laws of Congress, and the treaties of the
The
application of
RCW 46.61.688is conditioned on the clause “federal motor
vehicle safety standard 208.” An average
person cannot reasonably be expected to find “federal motor vehicle safety
standard 208” without undue help or personal expertise. Nor could an ordinary person, if she managed
to find “federal motor vehicle safety standard 208,” be reasonably expected to
understand it. Thus
RCW 46.61.688 does not provide fair notice to
2. The Flaw In
RCW 46.61.688 Is Precisely
The Same Flaw Condemned in
State v.
Maxwell.
In
State v. Maxwell, the
court of appeals examined the same issue
raised in this appeal, but with regard to an administrative regulation for
protective motorcycle helmets.
74 Wn.
App. 688 (1994).
The administrative regulation for protective helmets in Maxwell
stated in its entirety:
(1) The
federal
motor vehicle safety standard 218 is hereby adopted by reference as the
standard for motorcycle helmets.
Former
WAC
204-10-040 (emphasis added). Thus the regulation in
Maxwell used
the same phrase to reference the federal regulations as
RCW 46.61.688.
The
Maxwell court found the administrative regulation unconstitutional and held
as follows:
In order to comply with the
statute and the state regulations, an ordinary citizen would have to know where
to find the Federal Motor Vehicle Safety Standards, or Standard 218. Counsel and the court found it because we
were aware of the Code of Federal Regulations; the index therein cites us to
chapter
49, section 571.218. The regulation
itself consists of sections 1 through 7.3.4 and covers 16 pages. Within those sections are topics such as scope
– purpose – applications – definitions – requirements – impact – attenuation –
penetration - retention system – configuration – projections – labeling –
helmet positioning index – selection of appropriate head form--reference
marking--helmet positioning – conditioning--penetration test – and retention system
test. Also included are 7½ pages of
diagrams and 4 pages of charts.
The regulation fails to
inform the average citizen of the location or legal citation of the federal
standard it adopts. We have not been
advised how a citizen of common intelligence should discover this
information.
RCW 46.37.530, as implemented through
WAC 204-10-040, fails to provide
citizens with the fair notice required for due process.
. . .
The federal regulation has
numerous sections relating to the qualities and tests to be supplied by the
manufacturer. Ordinary citizens would not
be able to tell which protective helmet met those requirements, even if they
could find the regulation. In adopting
the entire regulation, the state patrol has made it impossible for ordinary citizens to
understand what is required to comply with the
Maxwell, 74 Wn.
App. at 691-92.
In response to
Maxwell, the
Washington State Patrol enacted a new rule that adopted
federal motor vehicle
safety standard 218 by actual citation to
49 C.F.R. § 571.218. WAC 204-10-040. This Court upheld the revision in Spears
because the revision corrected the error found in
Maxwell. City of Bremerton v. Spears, 134 Wn.2d
141, 154, 949 P.2d 347, 353 (1998).
3. The Phrase “Federal
Motor Vehicle Safety Standard 208” Is
Unconstitutionally Vague Because It Cannot Readily Be Located By A Citizen Of
“Common Intelligence” And If Located, Cannot Be Understood.
In the case at bar, the vehicle was
stopped because a passenger was not wearing a seat belt. Under
RCW 46.61.688, the determination of whether a
person is required to wear a seat belt is solely conditioned on the type vehicle
in which he or she is riding. However,
by reading
RCW 46.61.688(2), one cannot reasonably ascertain whether one’s vehicle
is one in which passengers are required to be belted because the standard it adopts
cannot readily be located and if found cannot be understood by the public.
Appellant’s
argument appears to require average citizens to conduct legal research in order
to determine the meaning of the statute.
Thus the Appellant has conceded that, on its face,
RCW 46.61.688 is unclear.
Unlike ordinary citizens, but like the
Maxwell court, interpretation
of the statute requires independent awareness of the Code of Federal Regulations
and access to legal databases such as Westlaw
or Lexis.
The
Federal Code here,
49 C.F.R. § 571.208, is more confusing and
incomprehensible than the Federal Code in Maxwell. In Maxwell, the Federal Code section
was only 16 pages and able to be affixed to the court’s decision.
Maxwell, 74 Wn. App. at 692, 694.
In this case,
49 C.F.R. 571.208 is 124 pages long and contains many confusing
sections indicating scope, purpose, applications, definitions, requirements,
options to options, exceptions to exceptions, various tables, charts, and
formulas. In short, it is full of
technical information and legalese, not a simple explanation of relevant
information.
It
is understandable that there is confusing language and technicalities in 49 C.F.R.
§ 571 because it is intended to set safety standards
for the manufacture of all motor vehicles and equipment in the
The purpose of this standard
is to reduce the number of deaths of vehicle occupants, and the severity of
injuries, by specifying vehicle crashworthiness requirements in terms of forces
and accelerations measured on anthropomorphic dummies in test crashes, and by
specifying equipment requirements for active and passive restraint systems.
49 C.F.R.
§ 571.208. Thus the federal standards are not intended
to provide a basis for law enforcement of a citizen’s actual use of the
regulated safety item in question. Nor
is it drafted in plain language so that ordinary citizens would know what to
look for to ensure that they are complying with the law. As stated, it is intended to set safety
standards for compliance by the automobile manufacturing industry. Appellant is thus mistaken when it compares a
statute regarding individual conduct (“a seat belt shall be worn”) with a
statute about seat belt performance standards (“seatbelts shall be in certain
cars and of a certain strength”).
Regulation of a citizen’s use of motor vehicle equipment is not the same
thing as regulation of the safety standards themselves.
Appellant
cites
RCW 46.37.510 and briefly argues that it shows an average
citizen that the law requires a person to use a seat belt. Appellant’s Brief at 18. However,
RCW 46.37.510 is under a chapter titled “Lighting And Other
Equipment”, and
RCW 46.61.688 is under a chapter titled “Rules Of The Road.” The one does not lead to the other as there
are no internal cross-references.
Additionally,
RCW 46.37.510restricts and delineates which vehicles may be
sold or caused to be sold when equipped with a seat belt. It only mandates what type of seat belt must
be installed in the front seats. If one
were to rely on
RCW 46.37.510, one could assume that rear
passengers need not wear seat belts since there are no requirements on when
those must be installed.
RCW 46.37.510does not save
RCW 46.61.688from vagueness and a due process
violation. The defect is the failure to
adequately cite the federal standard being relied upon, and
RCW 46.37.510does not cure that defect.
Indeed,
RCW 46.37.510 highlights the drafting errors rather than
clarifies anything for the public. For
example, the Legislature could have written
RCW 46.61.688 to be conditioned by
cross-reference to
RCW 46.37.510. If
this had been done, two fatal drafting errors would have been cured. First, the reference to a condition for the
statute would have been to an actual citation for another statute, not simply
to a phrase (“federal motor vehicle safety standard”). This would at least allow an average reader
the opportunity to find the very
thing upon which the statute relies for its applicability. And second, the condition precedent to
operation of the statute itself would have been clear, as
RCW 46.37.510 states
that all cars after a certain year shall have a safety belt. Thus
RCW 46.61.688 could have been written to
simply state that all persons riding in a motor vehicle that is equipped with
safety belts (as required by
RCW 46.37.510) shall wear those safety belts.
B. The
When an
unconstitutional search or seizure occurs, all subsequently uncovered evidence
becomes fruit of the poisonous tree and must be suppressed. State v. Kennedy, 107 Wn.2d 1, 4
(1986).
Under
article I, section 7 of
This Court
has ruled squarely on the issue of the applicability of the exclusionary rule
in a case where the underlying statute justifying the police conduct is
subsequently declared unconstitutional.
In State v. White, the constitutionality of the old obstructing
statute, RCW 9A.76.020, was challenged on vagueness grounds. The court held that the statute violated the due
process clause of the
Fourteenth Amendment because it failed to give fair
notice of what activities were required or forbidden. White, 97 Wn.2d 92.
After
finding the statute at issue unconstitutionally vague,
the court addressed
whether the evidence obtained from the seizure, which had been justified on the
existence and authority of the unconstitutional statute, should be suppressed
as the “fruit of a poisonous tree.” White,
97 Wn.2d at 102citing
Wong Sun v.
This Court reiterated that
article
1, section 7 of the
Washington Constitution is more protective of an
individual’s rights than parallel provisions in the
Fourth Amendment. White, 97 Wn.2d at 108.
The decision noted that “the result reached by the
United States Supreme
Court in
DeFillippo is justifiable only if one accepts the basic premise
that the exclusionary rule is merely a remedial measure for
Fourth Amendment
violations.”
We think the language of
our state constitutional provision constitutes a mandate that the right of
privacy shall not be diminished by the judicial gloss of a selectively applied
exclusionary rule. In other words, the
emphasis is on protection of personal rights rather than on curbing
governmental actions. … The important place of the right to privacy
in Const.
art. 1, § 7 seems to us to require that whenever the right is
unreasonably violated, the remedy must follow.
White, 97 Wn.2d
at 110.
The court was expressly endorsing the use of the remedy of exclusion to
discourage the legislature from passing unconstitutional laws.
In
analyzing why the logic of
DeFillippo was inapplicable under
article I,
section 7, the White court found that the arrest was based on a
flagrantly unconstitutional statute.
“Where substantially the same language in a different statute has been
adjudicated unconstitutional by a court of this state, a statute that has not
been previously construed may nevertheless be ‘so grossly and flagrantly
unconstitutional’ by virtue of a prior dispositive judicial holding that it may
not serve as the basis of a valid arrest.”
White, 97 Wn.2d at 102.
The White
court properly noted that if the law had to be invalidated on a case by case
basis, the legislature would be given free reign to pass unconstitutional laws,
knowing that the police would get “one free bite” at the expense of citizens’
rights. White, 97 Wn.2d at 107“the public interest is served by
deterring legislators from enacting such [unconstitutional] statutes” citing
Powell v. Stone, 507 F.2d 93, 98 (9th Cir. 1974) (emphasis added). Those who were arrested or searched under the
authority of this law prior to its being found unconstitutional would have to
suffer the detriment of that conduct, i.e., criminal prosecutions, despite a
very different outcome for those stopped or arrested subsequent to such a
decision. “The need for deterrence of
such legislative conduct in the future is as essential as deterring unlawful
police action. Firmly applying the
exclusionary rule to prevent the use of evidence obtained pursuant to such
statutes works to that end.” White,
97 Wn.2d at 108 (emphasis added). Further, “the exclusionary rule serves not
merely as a remedial measure for unconstitutional government actions, but
rather to assure judicial integrity and preserve the individual’s right to
privacy.” State v.
In the
present case, the statute was clearly unconstitutional as first written.
Maxwell held that the use of the
phrase “federal motor vehicle safety standard 218” in
WAC 204-10-040and adopted in
RCW 46.37.530(1)(c) to be unconstitutionally
vague.
RCW 46.61.688uses the same flawed language.
RCW 46.37.530(1)(c) was corrected and then upheld
in
Spears prior to the
enactment of
RCW 46.61.688.
The
failure of the legislature to draft a more precise statute is peculiar considering the prior legislation and
case law. Like citizens, the Legislature
is presumed to know the laws. Thus, when
RCW 46.61.688 was promulgated, the Legislature knew about
Maxwell,
the re-codification of
RCW 46.37.530(1)(c), and
Spears. Inexplicably, these guideposts went unnoticed
or ignored in favor of flawed terminology.
White applies and should hold the Legislature accountable for
such a failure.
The
failure to properly draft
RCW 46.61.688 is even more glaring when reasonable alternatives
are reviewed. For example, why didn’t
the Legislature simply use language similar to the new
RCW 46.37.530(1)(c) and approved by
this Court in
Spears? In that case the
exception was limited by the year of vehicle, something that is readily
ascertainable to all drivers and passengers.
Or better yet, why is
RCW 46.61.688conditioned at all on federal safety
standards? The law could have been much
more clear if it simply said, “This section applies to all vehicles equipped
with safety belts.” The exception carved
out by the legislature is unique and limited.
If the drafters were worried about not imposing an undue burden on the
few vehicles that are not subject to
49 C.F.R. 571.208, they could have promulgated the
section to read “This section applies to all vehicles equipped with safety
belts. However, this section does not
apply to motor vehicles that are not equipped with safety belts, as set forth
in
49 C.F.R. 571.208.
But it appears from the ignoring of
Maxwell and
Spears
that it was error, not intent, that dooms
RCW 46.61.688.
C.
State v. Maxwell Is Proper Legal
Authority In
Appellant contends that the
Maxwell court misapplied
case law to arrive at its conclusion that procedural due process requires more
than a mere reference to a federal phrase in order to provide fair notice. Appellant’s Brief at 25. Appellant’s argument is not persuasive. Moreover, Appellant does not have standing to
argue the merits of whether
Maxwell itself was decided correctly or
not. The proper venue for the Appellant’s
arguments would have been in a brief on petition for review of
Maxwell,
an opportunity the State decided not to pursue.
This Court previously had the opportunity to overrule or
void
Maxwell and it chose not to.
In
Spears,
this Court held that only the
Supreme Court has
jurisdiction to hear civil traffic cases where the amount in controversy is
under $200.
Spears, 134 Wn.2d at
153. Nowhere in
Spears does
this Court state that its decision should be applied retroactively to void or
overrule
Maxwell.
On the contrary, in another section of the opinion,
the Court discussed
Maxwell
and noted that the State Patrol enacted a new rule in response to it. Spears, 134 Wn.2d at 154-155. In 2003, the legislature amended
RCW 46.37.530 by adding a section defining a
motorcycle helmet and deleting the reference to other standards, presumably in
response to
Maxwell. Laws of 2003, ch.
197 § 1.
Other cases have also relied on the
reasoning in
Maxwell. See City of
Kennewick v. Hendricks, 84 Wn. App. 323, 927 P.2d 1143 (1996). Additionally, the amount in
controversy is never stated in the
Maxwell opinion and the State did not
appeal
Maxwell on jurisdictional grounds. Furthermore, the
superior court judge below
acknowledged that even if
Maxwell is not controlling authority, its
reasoning is nonetheless persuasive.
Appellant’s Brief, Appendix B (Superior Court Judge’s Letter Denying
Reconsideration).
Contrary to what the Appellant contends,
Maxwelldoes not make “ignorance of the
law a defense,” (Appellant’s Brief at 26), any more than other cases requiring
procedural due process. Rather,
ignorance of the law is only a defense if the law is unconstitutionally vague
thereby depriving citizens of the opportunity to know what the law actually is. It is the legislature’s duty to write laws
that are clear enough for citizens to understand them. The legislature failed to write
RCW 46.61.688
to give fair notice of the seatbelt law to
D. Federal Preemption Of Motor Vehicle Safety
Standards Is Irrelevant To State Regulation Of Citizens’ Conduct.
Respondent agrees with Appellant’s proposition that “the
State cannot mandate different standards than the federal standards.” Appellant’s Brief at 35. However, Appellant seems to be confusing the
difference between the federal regulation of which cars must have seatbelts and
how those seat belts should perform, with the State regulation of a citizen’s
use of a seat belt. If the legislature
had been more clear and less vague in its drafting, perhaps Appellant would not
be so confused. If the legislature had
said “anyone in a car equipped with a seatbelt must wear it,” the determination
of which cars need seatbelts would still be regulated by federal
standards. In other words, there is
nothing about the regulation of seat belt use in
RCW 46.61.688 that that
infringes or modifies the federal standards of performance. Thus, Appellant’s conclusion that “any
revision to
RCW 46.61.688 would still require as detailed standards as
the federal ones to cover all the different types of vehicles and passenger
seats” is erroneous since
RCW 46.61.688does not seek to regulate the manufacture or
performance of motor vehicle equipment. Appellant’s
Brief at 35. Appellant’s contention is
further refuted by the fact that the state patrol amended its rule (WAC
204-10-040) after
Maxwell with less than one page of text (which rule
was then upheld in
Spears, 134
Wn.2d at 155) and in 2003.
RCW 46.37.530 was re-drafted to remove the confusing
but corrected reference and which defined “motorcycle helmet” in one
paragraph.
VI. Conclusion
The fatal flaw found in
Maxwell
exists in this case as well:
RCW 46.61.688 as currently written is unconstitutionally
vague by referencing “federal motor vehicle standard 208” rather than a readily
ascertainable proper citation to a specific federal regulation. There is no basis for deviating from the
logic and holding of
Maxwell which is still valid law in this state and
which factually parallels the situation presented in this case. Furthermore,
article I, section 7 mandates
exclusion of all after-acquired evidence from a seizure of a citizen based on a
violation of
RCW 46.61.688 and no persuasive reason has been put forth why
this
Court’s clear and consistent jurisprudence on
Dated:
Respectfully
submitted:
____________________________
ERIC MICHAEL WEIGHT
Counsel for Respondent
(360) 527-1960
Washington State Bar Association
#25061
[1] The Appellant has included
additional facts in its appeal, such as the nature of the charges and the
conduct of other passengers, that are not relevant to the merits of this
appeal. This case is based solely on the
constitutionality of
RCW 46.61.688.
The predicate facts for this are quite limited. This appeal should be decided on its merits,
not based upon the nature of the charges or the character of other passengers in
the motor vehicle.
[2] The record is silent as to whether this passenger
was cited for violation of
RCW 46.61.688.