I. ASSIGNMENT OF ERROR
1)
The statute under which Gloria N.X. Celsius was prosecuted,
Seattle
Municipal Code (SMC) 12A.24.080, is subject to the limitation of
Article XI
Section 11 of the Washington Constitution that it not be in conflict with the general
laws. Chapters
35.20,
35.21, and
35.22 RCW provide general authorizations and restrictions to
2) The statute under which Gloria N.X. Celsius was prosecuted, Seattle Municipal Code (SMC) 12A.24.080, is recodified from SMC 12A.40.120, enacted as part of Ordinance 103993, which repealed the original SMC 12A.24.080 as enacted by Ordinance 102843. Ordinance 103993 impermissibly embraces more than one subject under the opinions construing Article II Seciton 19. At the time this ordinance was passed, the Legislature, through its authority under Article XI Section 11 to impose limits on the scope of municipal ordinances had enacted RCW 35.21.570, as part of Laws 1965 chapter 7, to place the same single subject restriction upon municipal ordinances that Article II Section 19 places upon acts of the Legislature. Ordinance 103993 is therefore completely void as in conflict with RCW 35.21.570 and therefore prohibited by Article XI Section 11. This constitutional issue is raised for the first time on appeal.
II. STATEMENT OF THE CASE
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III. ARGUMENT
A. Defendant
May Raise Constitutional Issue for the First Time on Appeal
It has long been recognized in
B. SMC
12A.24.080 Not Authorized by General Laws, as the
Control
Act and Bills that Amend it Are Void Multi-Subject Bills Prohibited by
Article
II Section 19 of the
RCW 35.20.030,
RCW 35.21.163, and
RCW 35.22.280(35) require city ordinances that define crimes must provide the
same penalties as state statutes that define the same acts as crimes. As a criminal liquor ordinance, SMC 12A.24.080
is dependent upon the exception to state liquor law pre-emption in Laws 1933
ex. sess. chapter 62, the Washington State Liquor Act (WSLA 1933) §29, or
RCW
66.08.120.
RCW 66.08.120 has not been
amended since 1933. SMC 12A.24.080 is in
conformity with
RCW 66.44.270(1). See
also
Corral, Inc. v. Washington State
Liquor Control Board, (1977) 17
Because WSLA 1933, WSLA 1935, and
Laws 1987 chapter 458 are void as multi-subject bills prohibited by
Article II
Section 19,
RCW 66.08.120 and
RCW 66.44.270 are void statutes and SMC
12A.24.080 is not authorized by any valid state statute.
RCW 66.44.270 is defined by a series
of bills passed by the Legislature: Laws 1998 chapter 4 §1; Laws 1993 chapter
513 §1; Laws 1987 chapter 458 §3; Laws 1955 chapter 70 §2; Laws 1935 chapter
174 (WSLA 1935) §6; and Laws 1933 ex. sess. chapter 62 (WSLA 1933) §37. Three of these bills, the 1987, 1935, and the
1933 acts, are completely null and void as multi-subject bills prohibited by
Article II Section 19 of the
Washington Constitution. The other bills amend void statute, and are
void to the extent that they amend void statute. Thus,
RCW 66.44.270 is a void statute.
WSLA 1933 embraces at least four
subjects in its title: 1) control and
regulation of intoxicating liquors, 2) creating state offices, 3) defining
crimes and providing penalties for the crimes, and 4) providing for the
disposition of public funds. That is
three more subjects than allowed by
Article II Section 19. An analysis of its contents indicate more
subjects than four, whether or not all provisions of the bill are embraced in
the title.
WSLA 1935 embraced the same four subjects in its title that WSLA 1933 embraced, and the title also listed the purpose of WSLA 1935 to amend sections 16, 23, 27, 30, 33, 37, 52, 55, 62, 69, 70, 71, 72, 90, 92, and 93 of WSLA 1933. WSLA 1935 §2, which would have amended WSLA 1933 §23, licenses to manufacture, distribute, and sell intoxicating liquors and fees for such licenses, was partial vetoed by the Governor. A partial veto by the Governor does not save a multi-subject bill from being void, legislators do not always know whether a governor will partial veto a bill and which sections he will partial veto. A legislator logrolled into voting for a bill with provisions he finds distasteful to obtain law he believes desirable and necessary, may find the provision he wanted partial vetoed, leaving him on record as having helped enact the provisions he did not want. WSLA 1935 §3 amended WSLA 1933 §27 (RCW 66.24.010), defining persons who are eligible and ineligible for liquor licenses. WSLA 1935 §§4 and 5 amended WSLA 1933 §§30 (RCW 66.28.040) and 33 (RCW 66.32.010) respectively, provisions regulating the giving of liquor and the keeping of liquor while sealed or unsealed. WSLA 1935 §6 amended WSLA 1933 §37 (RCW 66.44.270), which defined the crimes of Unlawful Furnishing of Liquor and of underage persons applying for a permit and purchasing liquor. WSLA 1935 §7 amended WSLA 1933 §52, which required licensed premises used in the manufacture, storage, or sale of liquor be open to inspection by public officials. WSLA 1935 §8 amended WSLA 1933 §55 (RCW 66.32.090), which concerned the reporting of liquor seized by police officers and other public officials to the Liquor Control Board. WSLA 1935 §9 added a Section 62-A (RCW 66.08.100) to WSLA 1933 §62, defining the exclusive original jurisdiction of Thurston County Superior Court over actions brought against the Liquor Control Board and providing for immunity to damages to Board members for acts or omissions in their official duties. WSLA 1935 §10 amended WSLA 1933 §69 providing for the powers and responsibilities of the Liquor Control Board. WSLA 1935 §11 amended WSLA 1933 §70 providing that the Liquor Control Board may secure the assistance of the Washington State Patrol in enforcing the criminal provisions of the WSLA. A portion of WSLA 1935 §11 was partial vetoed by the Governor. WSLA 1935 §12 amended WSLA 1933 §71, providing that the state auditor shall audit the books of the Liquor Control Board. WSLA 1935 §13 amended WSLA 1933 §72 providing that the Liquor Control Board shall make a report to the Governor. WSLA 1935 §14 amended WSLA 1933 §90 (RCW 66.28.010), providing that manufacturers, wholesalers, and persons with financial interest in the manufacturing and wholesale distribution of liquor shall be ineligible to hold licenses or permits for retail sales of liquor. WSLA 1935 §§15 and 16 amended WSLA 1933 §§92 and 93 (RCW 66.44.180) respectively, defining crimes and penalties for such crimes, and that courts of limited jurisdiction shall have jurisdiction over such misdemeanors concurrent with the jurisdiction of superior courts.
Laws 1987 chapter 458 embraces in its title, at least two subjects, 1) criminal penalties for alcohol and substance abuse, and 2) non-criminal education and treatment for alcohol and substance abuse. Laws 1987 chapter 458 §1, revising RCW 9.94A.030 first time offender definition, §2, adding RCW 69.50.415, §4, adding subsection (f) to RCW 69.50.401, and §5, amending RCW 69.50.406, amend criminal statutes that pertain to controlled substances other than alcohol. Laws 1987 chapter 458 §6 was partial vetoed by the Governor. Laws 1987 chapter 458 §§7, 8, 9, and 22 created chapter 69.53 RCW to define as crimes the use of a building for manufacturing and trafficking in controlled substances other than alcohol and the fortification of such building against police entry. In amongst these serious controlled substances provisions is Laws 1987 chapter 458 §3 which amended RCW 66.44.270 to closely resemble its present form, Unlawful Furnishing of Liquor to minors. The relatively minor offense of allowing underage persons to consume alcohol in a public place is mixed in with serious controlled substance felonies. The first nine sections of Laws 1987 chapter 458 would nevertheless be arguably within one subject and not in violation of Article II Section 19 were it not for the following non-criminal sections:
Laws 1987 chapter 458 §10 amended RCW 66.08.180 to revise the distribution of funds for purposes other than enforcing criminal statutes from the Liquor Revolving Fund originally established by WSLA 1933 §73. Such purposes as funding university research into alcohol drug abuse and the University of Washington’s toxicology laboratory, to the Department of Social and Health Services (DSHS); up to $150,000 each year to alcohol and drug prevention programs in the primary grades, and the use of a quarter cent per liter tax for Washington State University’s wine and grape research. Laws 1987 chapter 458 §11, amending RCW 66.24.320, and §12, amending RCW 66.24.330 to increase the fees for beer retailer’s licenses. Laws 1987 chapter 458 §13, amending RCW 48.21.160, §14, amending RCW 48.21.180, §15, adding RCW 48.21.195, §16, amending RCW 48.44.240, §17, adding RCW 48.44.245, §18, amending RCW 48.46.350, §19, adding RCW 48.46.355, §20, repealing RCW 48.21.170, and §21 define chemical dependency to be a disease and mandate that it be included in health insurance contracts.
It would defeat the purpose of
Article II Section 19 if legislators could list more than one subject in the
title and call that “one subject”. For
this reason the Supreme Court of Washington analyzes the one subject test
separately from the subject expressed in title test.
Patrick
v. Murphy, (1998) 136
Although the Act covers
a number of issues, including public health, community networks, firearms and
other weapons, public safety, education, employment, and media, the title of
the bill is "AN ACT Relating to violence prevention.” Laws of 1994, 1st Sp. Sess., ch. 7, at 2196.
In our recent decision
in
Washington Fed’n of State Employees v. State, 127 Wn.2d 544, 901 P.2d
1028 (1995), we observed the constitutional provision "is to be liberally
construed in favor of the legislation.”
Although this omnibus
law covers a variety of subjects, they are all related to its stated purposes,
which are to:
(1) Prevent acts of violence by encouraging change
in social norms and individual behaviors that have been shown to increase the
risk of violence; (2) reduce the rate of at-risk children and youth, as defined
in
RCW 70.190.010; (3) increase the severity and certainty of punishment for
youth and adults who commit violent acts; (4) reduce the severity of harm to
individuals when violence occurs; (5) empower communities to focus their
concerns and allow them to control the funds dedicated to empirically supported
preventive efforts in their region; and (6) reduce the fiscal and social impact
of violence on our society.
Laws
of 1994,
1st Sp. Sess., ch. 7, § 101, at 2197-98. The title, "AN ACT Relating to
violence prevention,” embraces all these purposes. "[A] title complies
with the constitution if it gives notice that would lead to an inquiry into
the body of the act, or indicate to an inquiring mind the scope and purpose of
the law.”
Young Men’s Christian Ass’n v. State, 62 Wn.2d 504, 506, 383
P.2d 497 (1963). The title of this bill meets the constitutional test.
Cornejo and Boot also argue that
because the Act covers so many wide-ranging subjects, it violates the
constitutional directive forbidding bills containing more than a "single
subject.” Wash.
Const.
art. II, § 19. We
have used the 'rational unity” test to determine if a bill contains a single
subject. "All that is required is that there be some 'rational unity’
between the general subject and the incidental subdivision.”
Washington
Fed’n, 127 Wn.2d at 556 (citing
State v. Grisby, 97 Wn.2d 493, 498,
647 P.2d 6 (1982), cert. denied sub nom. Frazier v.
The principal allegedly "non-germane” sections of
the Act cited by Cornejo and Boot are sections other than the amendments to
RCW
13.04.030(1)(e)(iv). Thus, even if Boot and Cornejo are correct about the other
sections of the Act, the validity of
RCW 13.04.030(1)(e)(iv) is unaffected.
They do not contend
RCW 13.04.030(1)(e)(iv) is itself outside the scope of the
title. Moreover, a severability clause preserves the validity of the statute
despite any invalidation of other sections of the Act. LAWS OF 1994, 1st Sp. Sess., ch. 7, § 913.
State v.
The Legislature said in
the intent section of the 1994 Act:
The
legislature finds that violence is abhorrent to the aims of a free society and
that it can not be tolerated. State efforts at reducing violence must include
changes in criminal penalties, reducing the unlawful use of and access to firearms,
increasing educational efforts to encourage nonviolent means for resolving
conflicts, and allowing communities to design their prevention efforts.
The
legislature finds that the problem of violence can be addressed with many of
the same approaches that public health programs have used to control other
problems such as infectious disease, tobacco use, and traffic fatalities.
Laws of 1994, 1st Sp.
Sess., ch. 7, § 101, at 2197. The Legislature found it necessary to combine
diverse provisions into a single omnibus act to address a single problem in a
comprehensive way.
In rejecting a
similar challenge to an analogous omnibus bill dealing with alcohol and
controlled substances (the Omnibus Alcohol and Controlled Substances Act of
1989), the Court of Appeals said:
Although
the civil and criminal provisions within the act cover a broad range of
activities, each of those provisions furthers the legislative purpose of
counteracting drug problems which are prevalent within our society. Thus, we
conclude that the act does not violate the single subject requirement of the
constitution.
State
v. Jenkins, 68 Wn. App. 897, 901, 847 P.2d 488, review denied, 121
Wn.2d 1032, 856 P.2d 383 (1993). See also
State v. Acevedo,
78 Wn. App.
886, 887-91, 899 P.2d 31 (1995), review denied, 128 Wn.2d 1014, 911 P.2d
1343 (1996);
State v. Knight, 79 Wn. App. 670, 676-77, 904 P.2d 1159
(1995), review denied, 129 Wn.2d 1005 (1996). "[I]f the legislation
is an omnibus bill designed by the Legislature or the people to address a
larger subject area, the wishes of the Legislature or the people in addressing
an issue comprehensively in a single bill may be respected.”
Washington
Fed’n, 127 Wn.2d at 575-76 (Talmadge, J., concurring in part / dissenting
in part).
Here, the 1994 Act is an omnibus bill, the stated purpose of which is to address a single problem, violence prevention, in a comprehensive manner. The Act meets the rational unity test of article II, section 19 of our constitution as a legitimate expression of the legislative purpose.
The
obvious criticism of this opinion, and of the Court of Appeals decisions
rejecting challenges to Laws 1989 chapter 271, the Omnibus Alcohol and
Controlled Substances Act, is that these findings defeat the obvious ends[1] of
Article II Section 19: to prohibit logrolling legislators by forcing them to
accept distasteful provisions to obtain passage of desirable and necessary
provisions, to allow each legislative concept to pass or fail on its own
merits, to require that each subject shall be expressed in a separate bill, to
maintain the firewall between appropriations and substantive
law, and to maintain the firewall between defining crimes and providing for
non-criminal matters such as licensing. If
the Legislature truly felt that all of the provisions of the Violence Reduction
Act and the Omnibus Alcohol Act were necessary, it would pass all such
provisions in separate single subject bills.
Because any measure, civil or criminal, can be justified as being
rationally related to reducing violence or improving physical health by
reducing chemical dependency,
In re Boot
essentially eliminated
Article II Section 19 from existence as surely as the
Thirteenth Amendment rendered the
Fugitive Slave Clause surplusage.
Acting
in good faith reliance on
Boot, Mr.
Tim Eyman and his merry band of signature gatherers
presented Initiative 695 to the people and the people passed it by a substantial
margin.
As a result,
Amalgamated
Transit Union Local 587 v. State of Washington, (2000) 142
However, there is no
rational unity between the subjects of I-695.
. . . I-695 also has two purposes: to specifically set license tab fees
at $30 and to provide a continuing method of approving all future tax
increases. Further, neither subject is
necessary to implement the other. I-695
violates the single-subject requirement of
art. II, § 19 because both its title
and the body of the act include two subjects: repeal of the MVET and a voter
approval requirement for taxes.
Affirmed in
City
of
This
test for rational unity was further modified by
Washington Association of Neighborhood Stores v. State of Washington,
(
In order to survive, however, rational unity must exist among all matters included within the measure and the general topic expressed in the title. Kiga, 144 Wn.2d at 826. Rational unity requires included subjects to be reasonably connected to one another and the ballot title.
Amalgamated Transit
Appellants argue there are multiple subjects contained within I-773 and that they are unrelated and not necessary for each other's implementation. Specifically, appellants contend there are three subjects in I-773 that lack rational unity: increasing the tobacco tax, funding health care for low-income families, and maintaining current funds for other preexisting programs already relying on the tobacco tax. Appellants'
We conclude rational unity exists between the sections of the initiative because the tobacco taxes directly relate to the programs they fund, and the programs relate to the title. As the ballot title explains, the subject of I-773 is imposing additional tobacco taxes for low-income health programs and other programs. Every provision of the initiative relates to those functions. The provisions raising taxes relate because they provide the revenue to support the new and existing programs. Each section of I-773 presents a single and rationally unified proposal for improving the health of our state's low-income citizens without imposing a net loss of tax revenue on other preexisting programs. The provisions are interrelated and germane to the general subject matter of I-773 and are, therefore, rationally unified and constitutional.
The dissent, written by Justice Richard Sanders, 149 Wash. 2d. 373-380, while not commenting directly upon the analysis as to the Single Subject Requirement, nevertheless criticizes the finding that the Two Year Appropriations Clause, Article VIII Section 4 was not violated. The majority determined that the Initiative’s language that Legislature “shall” appropriate funds for health care, is actually a suggestion, not a mandate. If it is a suggestion, then the tobacco tax imposed by the Initiative arguably does not “directly” relate to the programs funded, at least beyond two years when the Legislature may choose to spend the tobacco tax revenue in such manner.
Then
Citizens for Responsible Wildlife Management
v. State of Washington, (2003) 149 Wash. 2d. 622, 631, 71 P. 3d. 644,
found:
This court was
clear in
Amalgamated Transit Union Local
587 v. State that statutes enacted through the initiative process must be
shown to be unconstitutional beyond a reasonable doubt; they are not reviewed
under more or less scrutiny than legislatively enacted bills.
Amalgamated
Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d
608 (2000)
and thereby rejected an argument that Initiatives be
given less deference than Acts of the Legislature. Legislative acts are to be given the same
scrutiny given Initiatives.
Citizens then found at 149 Wash. 2d.
638-639:
Interestingly,
this court, in both
Amalgamated and
City of Burien upon which Citizens rely
for their "test" of rational unity, clearly expressed what has long
been the true test of rational unity:
"the existence of rational unity or not is determined by whether
the matters within the body of the initiative are germane to the general title
and whether they are germane to one another.
City of Burien, 144 Wn.2d at 826;
Amalgamated, 142 Wn.2d at 209-10.
An analysis of whether the incidental subjects are germane to one
another does not necessitate a conclusion that they are necessary to implement
each other, although that may be one way to do so. This court has not narrowed the test of
rational unity to the degree claimed by Citizens. It is more likely that the statements made in
Amalgamated and
City of Burien in regard to the dual subjects being unnecessary to
implement the other were made to further illustrate how unrelated the two
were. Moreover, the instant title does
not contain two subjects, where one is more broad and long term than the
other. I-713's title therefore does not
manifest the dangers of logrolling as did those in
Amalgamated and
City of
Burien.
This same analysis can be employed to illustrate how the various subjects of each Liquor Act are unrelated to each other, i.e. control and regulation of intoxicating liquors, defining crimes and providing penalties for the crimes, and providing for the disposition of public funds. For Laws 1987 chapter 458, criminal penalties for alcohol and substance abuse and non-criminal education and treatment for alcohol and substance abuse.
Citizens flat rejected any argument that Neighborhood Stores effectively reversed Amalgamated Transit and Kiga and restored the Eyman Initiatives. Amalgamated Transit thus survives with a finding that repeal of the Motor Vehicle Excise Tax and replacing it with a flat $30 fee does not directly relate to the requirement for a vote for every state and local tax increase, as contained in Initiative 695. Where “neither subject is necessary to implement each other” is found, then the test for rational unity must require that each allegedly diverse provision of a bill or initiative “directly relate” to each other such diverse provision. Otherwise, the Eyman Initiatives are restored as valid single subject bills, which Citizens did not do.
The VRA and the OACSA were not analyzed under this test in the previous decisions. When this test is applied to the WSLA 1933, WSLA 1935, and Laws 1987 chapter 458 (and to the Violence Reduction Act and to the Omnibus Alcohol Act, reversing Boot and Jenkins) these bills clearly lack rational unity in that their diverse provisions do not directly relate to each other and are multi-subject.
The provisions of WSLA 1933 concerning regulating intoxicating liquors, including the establishment of the Liquor Control Board, chapter 66.08 RCW, and the state liquor stores, chapter 66.16 RCW, do not directly relate to criminal provisions defining unlawful use of and supplying of intoxicating liquors to persons deemed ineligible to use or possess such intoxicating liquors, chapter 66.44 RCW. The criminal provisions do not directly relate to the process for issuing permits to allow the manufacture, distribution, and sale of intoxicating liquors, nor do they directly relate to the process for issuing licenses to allow retail sales of intoxicating liquors for consumption on the premises, and setting fees for such licenses, WSLA 1933 §23. None of these provisions directly relate to the one dollar per barrel tax on beer, WSLA 1933 §24. Nor do any of these provisions directly relate to the ban in WSLA 1933 §29, RCW 66.08.120, of municipal and county taxes and licenses on the sale of liquor. These provisions do not directly relate to the creation of the Liquor Revolving Fund, WSLA 1933 §73, RCW 66.08.170.
WSLA 1935 §3, amending the definitions of persons eligible and ineligible for holding liquor licenses (RCW 66.24.010), does not directly relate to WSLA 1935 §6, amending the definition of the crime of Unlawful Furnishing of Liquor to minors, RCW 66.44.270. Neither of these provisions directly relate to WSLA 1935 §9, RCW 66.08.100, to provide for the exclusive jurisdiction of Thurston County Superior Court over civil lawsuits brought against the Liquor Control Board and do not directly relate to the provisions of WSLA 1935 amending the powers and responsibilities of the Liquor Control Board, that the auditor shall audit the books of the Liquor Control Board, the report that the Liquor Control Board shall make to the Governor, and providing that manufacturers and wholesalers of liquor shall be ineligible to hold retail liquor licenses.
The provisions of Laws 1987 chapter 458 §§1-9 amending definitions of crimes related to controlled substances, including RCW 66.44.270, do not directly relate to Laws 1987 chapter 458 §§10 providing for the distribution of funds from the Liquor Revolving Fund to support research into alcohol and drug abuse, and wine and grapes. Neither of these provisions directly relate to Laws 1987 chapter 458 §§11 and 12 to raise the fees for beer retailer’s licenses. None of these provisions directly relate to Laws 1987 chapter 458 §§13-21 defining chemical dependency as a disease and requiring health insurance coverage.
Another test
for rational unity is whether the bill is a comprehensive redraft of a
particular area of law.
Fritz v. Gorton, (1974) 83
There are
several “firewalls” found to exist pursuant to
Article II Section 19. One is the firewall between funding
provisions and provisions that affect substantive rights.
Another
firewall is placed by
Article II Section 19 between criminal provisions and
provisions affecting substantive rights in civil matters.
State
v. Tiemann, (1903) 32
WSLA 1933 and WSLA 1935 breach this firewall by defining crimes and provide penalties for such crimes while establishing the Liquor Control Board and providing for licenses and permits to manufacture, distribute and sell intoxicating liquors. Laws 1987 chapter 458 breaches this firewall by amending definitions of some crimes and creating several new crimes while raising the fees for beer retailer’s licenses and requiring health insurance coverage for chemical dependency. Beer license fees and health insurance are non-criminal matters.
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
C. SMC
12A.24.080 Was Established by Ordinance No. 103993, Which is in Conflict
With
RCW 35.21.570 as a Multi-Subject Bill, and is Therefore Void as Prohibited
by
Article II Section 19 and by
Article XI Section 11 of the
State v. Thomas, (2000) 103
The title to Ordinance 103993 reads
in significant part: “AN ORDINANCE relating to offenses by and against
juveniles”[1]
embraces the repealed the old SMC 12A.24.080, which as part of Ordinance 102843,
prohibited unlawful furnishing of liquor to minors, and the newly enacted SMC
12A.40.120, which prohibits unlawful furnishing of liquor to minors. Therefore, if the provisions included within
this Ordinance, by diverse content of offenses by and against juveniles as
embraced by the title, themselves embrace more than one subject, then the
entire Ordinance is void, as none of the diverse provisions are outside the
title, as was Initiative 659 in
Amalgamated
Transit, at 142 Wash. 2d. 217, and Initiative 722 in
Burien v. Kiga at 144
While
Amalgamated Transit provided one test for more than one subject,
Thomas provides
another test that is not inconsistent with
Amalgamated
Transit, and more directly applies to Ordinance 103993. For diverse crimes,
Thomas at 103
We do not find, however, a rational unity between the entire Criminal Profiteering Act and “AN ACT Relating to Insurance fraud.” Here the legislative purpose of the Act reads: “the business of insurance is one affected by the public interest, requiring that all persons be actuated in good faith, abstain from deception, and practice honesty and equity in insurance matters.” Clearly a provision whose effect is to continue to criminalize profiteering based on a pattern of crimes unrelated to the insurance industry is not rationally related to the subject of insurance fraud. Although the Act amended former RCW 9A.82.010(14) (1995) to include a pattern of trafficking in insurance claims, bribery by insurance agents of claimants, or false health care claims in its definition of “criminal profiteering,” the Act also had the effect of continuing to criminalize criminal profiteering based upon any one of the other numerous crimes included within the definition. These underlying felonies encompass an array of criminal conduct including murder, theft, child buying, money laundering, promoting pornography, or delivery or possession with intent to deliver a controlled substance – the crime charged in the instant case. The crime of “criminal profiteering” based upon a pattern of commission of these felonies is not rationally related to insurance fraud.
If
a bill affecting offenses by and against juveniles embraced criminal profiteering
and insurance fraud, it would likewise be void as embracing more than one
subject if it is not a comprehensive redraft of juvenile criminal
statutes.
Fritz v. Gorton, (1974) 83
Ordinance 103993 embraces diverse crimes: Unlawful purchase, acquisition, possession, or use of arms by persons under 18 years of age, Section 12A.24.040; unlawful aiding the purchase, acquisition, possession, or use of arms by such persons, Section 12A.24.050; unlawful furnishing, purchase, acquisition, possession, or use of pistol by such persons or the aiding of such underage possession of pistol, Section 12A.24.060; and Section 3, Unlawful furnishing of liquor, Section 12A.40.120, the offense charged in this instant case.
Possession of arms by juveniles and possession of liquor by juveniles are unrelated crimes. It follows that supplying arms to juveniles and supplying liquor to juveniles are unrelated crimes, even if supplying liquor to a juvenile leads to the unlawful possession of the liquor by the juvenile. The age limits for these two crimes are different. Persons over 18 who possess or are supplied with arms are not affected by Sections 12A.24.040, 12A.24.050, and 12A.24.060. But if such persons are still under 21 years of age, they are affected by Section 3, Sections 12A.40.120, 12A.40.140, 12A.40.160, 12A.40.180, 12A.40.200, and 12A.40.220, which refer to the acquiring or helping to acquire liquor, or to gaining admission or helping to gain admission to a tavern. Once over 21 years of age, none of these provisions affect the person, except when helping the underage persons in violating these provisions.
A juvenile need not possess or consume alcohol to possess and use an arm. Neither is possession or use of an arm necessary to possess or consume alcohol. The consequences and potential consequences of these crimes are different. A juvenile who throws a bottle of wine, 30 ounces of glass and liquid at perhaps 30 feet per second, can have impact, but not the same impact as 120 grains of lead moving at several thousand feet per second. A juvenile who drinks from the bottle of wine is not as likely to successfully commit suicide as the juvenile who shoots himself.
Ordinance 103993 does not meet the
Fritz test for a comprehensive rewrite
of an entire field of law, which Ordinance 102843 arguably does in repealing
all previous City of
Because Ordinance 103993 is not a comprehensive rewrite of a juvenile code, and because it embraces diverse crimes within both title and content, it impermissibly embraces two subjects, and is therefore in conflict with RCW 35.21.570. RCW 35.21.570 reads:
When a city or town shall make a codification of its ordinances in accordance with RCW 35.21.500 through 35.21.570 that shall constitute a sufficient compliance with any statutory or charter requirements that no ordinance shall contain more than one subject which shall be clearly expressed in its title and that no ordinance or any section thereof shall be revised or amended unless the new ordinance sets forth the revised ordinance or amended section in full.
The language “no ordinance shall contain more than one subject which shall be expressed in its title” is almost identical to Article II Section 19: “No bill shall embrace more than one subject, and that shall be expressed in the title.” It is the clear intent of the Legislature, pursuant to its authority under Article XI Section 11, to impose the same limit prohibiting more than one subject that Article II Section 19 imposes upon the Legislature. As Article II Section 19 is now found to govern Initiatives as well as acts of the Legislature, so it governs municipal ordinances. Both provisions of the Washington Constitution are violated if an ordinance embraces more than one subject.
As Citizens, Neighborhood Stores, Amalgamated Transit and Kiga are more recent than In re Boot, Citizens, Neighborhood Stores, Amalgamated Transit and Kiga control the construction of Article II Section 19 and RCW 35.21.570.
IV. CONCLUSION
For the reasons stated herein, Ordinance 103993, the Washington Liquor Control Acts of 1933 and 1935 and Laws 1987 chapter 458 should be declared void as multi-subject bills prohibited by Article II Section 19 of the Washington Constitution, that all other bills that amended the provisions of these multi-subject bills to establish the current RCW 66.44.270 amended void statute and thus create void statute. SMC 12A.24.080 as part of Ordinance 103993 should be declared void as a multi-subject bill in conflict with RCW 35.21.570 and Article XI Section 11 of the Washington Constitution. Pursuant to such declaratory relief, the conviction should be vacated or reversed.
Respectfully submitted this 9th day of Thermidor, 200x.
________________________________
Justin Case, WSBA #45359
Attorney for defendant-appellant
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Prigg v. Pennsylvania, (1842) 41