CITY OF
) No. 444444
plaintiff, )
) DEFENDANT’S MOTION TO DISMISS,
v. ) LAWS 1993 CHAPTER 347 AND
) VIOLENCE REDUCTION ACT ARE
MAGNUS OLSEN, ) VOID MULTI-SUBJECT BILLS,
defendant. )
____________________________________)
MOTION TO
DISMISS
Comes
now MAGNUS OLSEN, the defendant, and through his undersigned attorney, moves for
dismissal of the Complaint charging him with possession of a firearm on school
property,
RCW 9.41.280(1), because prior to amendment by Laws 1993 chapter 347
§1, the statute did not prohibit an adult over the age of 21 years to possess a
firearm on school property, and Laws 1993 chapter 347 embraced more than one
subject, and is therefore void as a multi-subject bill prohibited by
Article II
Section 19 of the Washington Constitution.
Subsequent bills amending the relevant portions of this statute amended
void statute and are therefore void to the extent they amend void statute. One of these bills, the Violence Reduction
Act, Laws 1994 1st Sp. Sess. chapter 7, its §427 amended
RCW 9.41.280(1) to add
“or possess on” and
RCW 9.41.280(2) to provide loss of concealed weapons permit
upon conviction, is itself void as a multi-subject bill prohibited by
Article
II Section 19 of the
Washington Constitution. As a void multi subject bill, it certainly
does not save the relevant language of
RCW 9.41.280(1) from being void as
having been originally amended by a multi-subject bill.
FACTS ALLEGED
BY THE PROSECUTION
The
facts as alleged by the prosecution in the Complaint are as follows:
Defendant
MAGNUS OLSEN is President of the Americans of Norwegian, Icelandic, Faroese,
and Danish Ancestry (ANIFDA). He met
with students, teachers, parents, and school board members at
Defendant
OLSEN had a valid concealed weapons permit at the time of this incident.
Defendant MAGNUS OLSEN is therefore charged in the Complaint with one count of Possession of a Firearm on School Property, a misdemeanor, defined by RCW 9.41.280(1). If convicted he will lose his concealed weapons permit, RCW 9.41.280(2). He neither admits nor denies the alleged fact of possession of a firearm on school property for the purpose of this motion.
ARGUMENT FOR
DISMISSAL OF THE COMPLAINT
RCW 9.41.280(1)
was amended by Laws 1993 chapter 347 §1, to replace the previous language that
read:: “elementary or secondary student under the age of twenty-one knowingly”
with the word “person”. Prior to the
effective date of this act,
Laws 1993 chapter 347 §2 added RCW 28A.320.130 to require each school district and each private school to report to the Superintendent of Public Instruction all known incidents of possession of weapons on school property in violation of RCW 9.41.280. §3 of this bill amended RCW 28A.635.060 to provide that where a student who defaces school property is transferring to another school, his permanent record shall promptly released to the receiving school. These provisions are not necessary to implement each other, and therefore, Laws 1993 chapter 347 is void in its entirety as a two subject bill prohibited by Article II Section 19 of the Washington Constitution.
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.
The “Rules of statutory construction apply to
initiatives.” as it applies to acts of the Legislature.
It is not the prerogative
nor the function of the judiciary to substitute what they may deem to be their
better judgment for that of the electorate in enacting initiatives . . . unless
the errors in judgment clearly contravene state or federal constitutional
provisions.”
Fritz v. Gorton, 83 Wn.
2d 275, 287, 517 P. 2d 911 (1974). Nor is it the province of the courts to
declare laws passed in violation of the constitution valid based upon
considerations of public policy.
One consideration used to determine how liberally to
construe
Article II Section 19 in favor of the legislative act is whether the
title was “general” or “restrictive”. A
bill or initiative with a general title that encompasses all of its provisions
is given the rational unity test for determining if its provisions cover a
single subject or separate subjects.
Amalgamated Transit at 142
Initiative
695 had a general title.
However, there is no
rational unity between the subjects of I-695.
Similar to the act in
Wash. Toll
Bridge Auth. v. State[2],
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.
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.
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
Laws 1993 chapter 347, it clearly violates
Article II Section 19. It amends
RCW 9.41.280(1) to prohibit adults who
are not on duty police officers from possessing firearms while on school
property. This does not directly relate to its amendments to administrative statutes,
chapter 28A.320 RCW to
require that schools make a report to the
Superintendent of Public Instruction
and
RCW 28A.635.060 to
require records transfer to a student’s new school even if the student has
defaced school property and has not fully reimbursed his old school for the
damage.
Amalgamated Transit,
Kiga,
Neighborhood Stores, and
Citizens reversed the essential logic of
In re Boot, (1996) 130
There is simply no resemblance between the law as found
in
Boot and the law as found in
Amalgamated Transit,
Kiga,
Neighborhood Stores, and
Citizens. While
Boot
found that all of the provisions of the VRA were germane to its title, (a
stretch given that a tax on wine, beer, cigarettes, and soft drinks arguably
has nothing to do with violence reduction) it did not consider whether all of
these provisions were germane to each other under the tests established in
Amalgamated
Transit and
Kiga and clarified in
Neighborhood Stores
and
Citizens. Therefore, as
Amalgamated Transit
Kiga,
Neighborhood Stores and
Citizens, are more recent interpretations of
Article II
Section 19, they control the analysis[3] of
the Violence Reduction Act and declares it null and void. As analyzed under the
Amalgamated Transit
and
Neighborhood Stores standard:
The Violence Reduction Act, Laws
1994 1st Sp. Sess. c 7 is a blatant violation of
Article II Section 19 in that
many of the separate subjects are listed in its Table of Contents. Part II, §§201-207 authorizes the
Department
of Health to develop a public health services improvement plan. Part III, §§ 301-326 involves family and
community public health and safety networks, community-police efforts, and
responsibilities of the state and local agencies with respect to such family
and community networks. Part IV,
§§401-460, as above cited, amended firearms statutes. Part V, §§ 501-546 is a multi-subject bill by
itself. It adds new sections concerning
runaway juveniles and violence involving juveniles. It increased First Degree Reckless
Endangerment, RCW 9A.36.045, from a Class C felony to a Class B felony,[4]
and added provisions regarding prison matters and the
Department of Corrections. Part VI, §§ 601-612 authorized the Superintendent of Public Instruction to prepare a
guide and training programs for violence reduction in the public schools. §605 is an appropriations measure. Other provisions in this Part concerned
notification of school staff of juvenile convictions among their students. Part VII, §§ 701-705 addresses employment
issues of youth. Part VIII, §§ 801-812
addresses the “Media” about how its exercise of rights protected by the
First
Amendment and by
Article I Section 5 of the
Washington Constitution impact
violence in the community. Part IX,
§901-918, among other things, imposed taxes on wine, beer, cigarettes, soft
drinks, and soft drink ingredients.
That is at least 12 subjects in one bill, 11 more than allowed by Article II Section 19 of the Washington Constitution. The provisions authorizing the Department of Health to develop a public health services improvement plan do not directly relate to the provisions concerning family and community public health and safety networks. Neither directly relate to changes to chapter 9.41 RCW, nor are the firearms revisions directly related to the provisions addressing runaway juveniles, increasing the penalty for Reckless Endangerment, prison matters, violence reduction programs in the public schools, employment, or the media.
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
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 Wash. 294, 298, 73 P. 375 found that a civil provision for enforcing child support for illegitimate child cannot be properly included in a criminal statute for fathering a child out of wedlock. Defining an action to establish a civil liability as a criminal procedure embraced two subjects. Child support is charged against the property, not the person. A civil liability is not a penalty for wrongdoing. Similarly, State ex rel Henry v. MacDonald, (1901) 25 Wash 122, 126, 64 P. 912 found that a criminal provision for failing to send a child to school cannot be properly included within the General and Uniform Public School Act. There were two subjects in the bill.
Title
IV of the Violence Reduction Act revises criminal statutes,
chapter 9.41 RCW,
the firearms statutes. Section 511
revised the now repealed First Degree Reckless Endangerment statute. All of the other provisions affect
non-criminal matters. The
Department of
Health plan, family and community public safety networks, violence reduction in
public schools, employment issues, media, and taxes cannot be included in a
bill revising criminal statutes without offending
Article II Section 19.
Unrelated
criminal provisions within a bill violate
Article II section 19,
State v. Thomas, (2000) 103
Therefore,
as both title and subject of the Violence Reduction Act embraced considerably
more than one subject, it is void in its entirety.
CONCLUSION
For
the reasons stated herein, Laws 1993 chapter 347 and the Violence Reduction Act
should be declared void as a bills embracing more than one subject prohibited
by
Article II Section 19 of the
Washington Constitution, and all subsequent
bills amending this statute are thus void as amending void statute and to the
extent they amend void statute. As the
defendant’s actions are not in violation of the previously existing
RCW
9.41.280, this motion to dismiss should be granted.
Respectfully submitted, Thermidor 23, 2004,
____________________________________
Justin
Case, WSBA #45359
Attorney
for defendant
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[1] “Where a general title is used, all that is required
is rational unity between the general subject and the incidental subjects.”
[3] Precisely because Laws 1993 chapter 347 is not a comprehensive omnibus bill, it would not be upheld under the doctrines as established by In re Boot, which are no longer valid due to Amalgamated Transit and Neighborhood Stores.
[4] Since repealed by Initiative 159.