SUPERIOR COURT OF WASHINGTON

IN AND FOR THE COUNTY OF KING

 

STATE OF WASHINGTON,                         )

                                                                        )           No. 03-1-66607-6 SEA

                                    plaintiff,                        )

                                                                        )           DEFENDANT’S MOTION TO DISMISS,

            v.                                                         )           AMPHETAMINE ACT OF 1998 IS

                                                                        )           VOID TWO SUBJECT BILL,

ELLA VADER,                                                )           ARTICLE II SECTION 19

                                                                        )

                                    defendant.                    )

____________________________________)

 

MOTION TO DISMISS

            Comes now ELLA VADER, the defendant, and through her undersigned attorney, moves for dismissal of the Information charging her with possession of amphetamine with intent to deliver, because RCW 69.50.401(a)(1)(ii) was amended by the Amphetamine Act of 1998, Laws 1998 chapter 82 which embraced two subjects, and is therefore void as a two subject bill prohibited by Article II Section 19 of the Washington Constitution.

FACTS ALLEGED BY THE PROSECUTION

            The facts as alleged by the prosecution in the Information are as follows:

            Defendant ELLA VADER was searched by Seattle Police Officer Stone Wallingford, who discovered in her shirt pocket one ounce of a substance he suspected of being amphetamine.  Attached to the suspected substance was a handwritten note listing one ounce of amphetamine to be delivered to a person named Michael Graham.  Officer Wallingford placed the suspected substance with the attached handwritten note into an evidence bag and placed Ms. VADER under arrest.  Maintaining chain of custody of the suspected material in the evidence bag, Officer Wallingford delivered the evidence bag to the crime lab.  The crime lab tested a sample of the material and determined it to be amphetamine.  The total weight of the amphetamine was determined by the crime lab to be 29.3 grams, a little more than one ounce.  A handwriting expert has identified the handwriting to be that of Ms. VADER.  Ms. VADER was over the age of 18 years of age at the time of this incident and arrest.

            Defendant ELLA VADER is therefore charged in the Information with one count of Possession of Amphetamine With Intent to Deliver, a felony punishable by not more than ten years of imprisonment, defined by RCW 69.50.401(a)(1)(ii)(A), as amended by Laws 1998 chapter 82 §2.  As the quantity of amphetamine is less than two kilograms, the available fine is not more than $25,000.  She neither admits nor denies any of these alleged facts for the purpose of this motion.

ARGUMENT FOR DISMISSAL OF THE INFORMATION

            The amphetamine provisions of RCW 69.50.401(a)(1)(ii) were added by Section 2 of Laws 1998 chapter 82, the Amphetamine Act.  Section 1 of the Amphetamine Act simply re-enacted RCW 9.94A.320, now RCW 9.94A.515, the Seriousness Level Table.  Section 3 of the Amphetamine Act conditions the validity of the Amphetamine Act upon the inclusion of specific funding for the purposes of the Act in the omnibus appropriations act.  This breaches the firewall between substantive law and appropriations and therefore, the Amphetamine Act embraces two subjects and is void.

            Washington State Legislature, et al. v. State of Washington, et al., (1999) 139 Wash. 2d. 129, 131-132, 985 P. 2d. 353 re-established the firewall between substantive law and appropriations that was wrecked by State v. Jenkins, (1993) 68 Wash. App. 897, 901, 847 P. 2d. 383 which upheld Omnibus Alcohol and Controlled Substances Act, Laws 1989 chapter 271, even though it established substantive law and set appropriations, and thus restored Flanders v. Morris, (1977) 88 Wash. 2d. 183, 187-188, 558 P. 2d. 769; and State ex rel. Washington Toll Bridge Authority v. Yelle, (1959) 54 Wash. 2d. 545, 551, 342 P. 2d. 588.

            To condition the validity of a bill on the passage of an appropriations measure defeats the obvious ends[1] of Article II Section 19 and impermissibly breaches the firewall.  It effectively includes the appropriations measure in the bill when the provisions establishing substantive law are conditioned on the passage of the appropriations measure, even if the appropriations measure is included in another bill.  Washington State Legislature v. Lowry, (1997) 131 Wash. 2d. 309, 328 n. 11, 931 P. 2d. 885, found that placing a proviso without a dollar amount into an omnibus budget bill risks having the proviso invalidated.  The Legislature may not abolish or adopt substantive law in an appropriations bill.  Toll Bridge Authority v. Yelle, supra, at 54 Wash. 2d. 551, legislation of a general and continuing nature cannot come under the subject of appropriations, because Article VIII Section 4 of the Washington Constitution requires that all expenditures of moneys appropriated be made within one calendar month of the end of the fiscal biennium.

            That is why the Omnibus Alcohol and Controlled Substances Act and the Amphetamine Act are void as embracing two subjects: the appropriations provisions go away after two years but the substantive law lives on until repealed.  The purpose of Article II Section 19 is to require the Legislature, or the people in the case of an Initiative, to consider the wisdom of a permanent statute (until repeal) separately from any necessarily temporary appropriations measure.  It also provides that any repeal bill be limited to one subject.

            When both title and statutory text of a bill embrace more than one subject, the entire bill is null and void.  Power, Inc. v. Huntley, (1951) 39 Wash. 2d. 191, 200, 235 P. 2d. 173; Washington Toll Bridge Auth. v. State, (1956) 49 Wash. 2d 520, 523-526, 304 P. 2d. 676; Amalgamated Transit Union Local 587 v. State of Washington, (2000) 142 Wash. 2d. 183, 217, 11 P. 3d. 762; and City of Burien v. Kiga, (2001) 144 Wash. 2d. 819, 825, 31 P. 3d. 659.  Because both title (amending RCW 69.50.401 and adding a new section, the appropriation condition) and statutory text of Laws 1998 chapter 82, the Amphetamine Act, each embrace more than one subject, it is void in its entirety.

CONCLUSION

            For the reasons stated herein, Laws 1998 chapter 82 should be declared void as a two subject bill prohibited by Article II Section 19 of the Washington Constitution, and the amphetamine provisions of RCW 69.50.401(a)(1)(ii) should be declared void as having been added by a two subject bill, and this motion to dismiss should be granted.

Respectfully submitted, Brumaire 23, 2003,

                                                            ____________________________________

                                                                        Justin Case,      WSBA #45359

                                                                        Attorney for defendant