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

            v.                                                         )           DISMISS, UNIFORM CONTROLLED

                                                                        )           SUBSTANCES ACT AND OMNIBUS

MICHAEL GRAHAM,                                    )           ALCOHOL AND CONTROLLED

                                                                        )           SUBSTANCES ACT VOID AS MULTI-

                                    defendant.                    )           SUBJECT BILLS, ARTICLE II §19

____________________________________)          

 

MOTION TO DISMISS

            Comes now MICHAEL GRAHAM, the defendant, and through his undersigned attorneys, moves for dismissal of the Information because RCW 69.50.401(a)(1)(i), as part of the Uniform Controlled Substances Act (UCSA), is defined by Laws 1971 1st ex. sess. chapter 308, which is 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 Omnibus Alcohol and Controlled Substances Act (OACSA), Laws 1989 chapter 271, is itself void as a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution.  OACSA §104 amended RCW 69.50.401(a)(1)(i) to enhance the fine where more than two kilograms of the controlled substance is involved.  As a void multi subject bill, it certainly does not save RCW 69.50.401 from being void as originally defined by a multi-subject bill.

FACTS ALLEGED BY THE PROSECUTION

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

            Defendant MICHAEL GRAHAM delivered a controlled substance, 5 pounds of cocaine, to another person, who turned out to be undercover Seattle Police Officer Stone Wallingford, Badge Serial Number 66,666.  Officer Wallingford immediately displayed his badge and placed defendant MICHAEL GRAHAM under arrest for delivery of a controlled substance.  MICHAEL GRAHAM was under the age of 18 years of age at the time of this incident.

            Cocaine is defined by RCW 69.50.206(b)(4) as a Schedule II controlled substance.  It is a narcotic drug.  5 pounds is 268 grams more than two kilograms.

            Defendant MICHAEL GRAHAM is therefore charged in the Information with one count of Delivery of More Than Two Kilograms of a Schedule I or II Controlled Substance Which is a Narcotic, RCW 69.50.401(a)(1)(i)(B), a felony punishable by not more than ten years of imprisonment or a fine of not more than $100,000 plus $50 for each gram over two kilograms, in this case 268 grams over two kilograms for a total available fine of $113,400, or both.  He neither admits nor denies any of these alleged facts for the purpose of this motion.

            Because of seriousness of the charge, the defendant is being tried as an adult.

ARGUMENT FOR DISMISSAL OF THE INFORMATION

            RCW 69.50.401 is part of the Uniform Controlled Substances Act (UCSA), chapter 69.50 RCW, originally defined by Laws 1971 1st ex. sess. chapter 308 (UCSA 1971).  The title to UCSA 1971 states that it is enacting the Uniform Controlled Substances Act, repealing a host of previous statutes, defining crimes, prescribing penalties, and declaring an emergency.

            Article I of UCSA 1971 enacted RCW 69.50.101, which provides a set of definitions.  Article II of UCSA 1971 enacted RCW 69.50.201-213.  These provisions define the “Schedules” in which controlled substances, drugs with a variety of effects upon the human body and the human mind, are listed in “Schedules”.  These “Schedules” are categories of drugs grouped in terms of effects upon the human body and the human mind, potential for addiction and abuse by users, and whether the substances have accepted medical uses.  RCW 69.50.201, as enacted in 1971, and as amended to the present, provides that the State Board of Pharmacy administer the Act and shall administratively redefine, without an act of the Legislature or an Initiative of the people, which substances are listed in which Schedule, and may add or delete such substances from each Schedule.  RCW 69.50.201 in effect allows an unelected Board to redefine criminal statute.

            Article III of UCSA 1971 enacted RCW 69.50.301-309, which provides for the regulation of the LAWFUL manufacture, distribution, and dispensing of controlled substances.  If the UCSA is called “Uniform” because numerous states enact it or bodies of statute similar to it, then Article III is included in the title.

            Article IV of UCSA 1971 enacted RCW 69.50.401-408, which provide definitions of CRIMES related to the manufacture, distribution, and possession of controlled substances, and sets forth penalties.

            Article V of UCSA 1971 enacted RCW 69.50.500-509, which provides for the enforcement and administration of the UCSA.  The parts of UCSA 1971 enacting RCW 69.50.510 and RCW 69.50.511 were partial vetoed by Governor Evans.  The non-vetoed provisions define the members of the State Board of Pharmacy as peace officers and charge them with the authority to inspect registered manufacturers of controlled substances and to cooperate with state and federal agencies charged with enforcing laws related to controlled substances, seizure and forfeiture of property related to or unlawfully used in conjunction with controlled substances, administrative procedures under chapter 34.05 RCW, and judicial review of administrative decisions.  However, RCW 69.50.508, as enacted in 1971 and as amended to the present, provides for the non-criminal education and research into matters relating to controlled substances.

            Article VI of UCSA enacted RCW 69.50.601-608, which provided for continuation of proceedings under previous statutes and rules, the repeal of the previous statutes, short title, severability clause, and by declaring an emergency, declared that the effective date shall be upon signature of the Governor.

            RCW 69.50.401(a)(1)(i) was amended by OACSA §104.

            The title to OACSA embraces “prescribing penalties; making appropriations;” which is two subjects, one more than allowed by Article II section 19.  Just below the title is an Index.  An Index is a useful indication that the bill is multi-subject.  Part I embraces criminal penalties.  The Juvenile Driver’s License Revocation provisions of Part I Subpart C could conceivably embraced within one subject, but the Subpart providing for a Juvenile Offenders Structured Residential Program is clearly a separate subject, just as prison matters are a different subject than any of the particular crimes of which the inmates were convicted.  Part II embraces several different subjects.  Part III embraces social programs and education, clearly a different subject than either defining or investigating crimes.  Parts IV and V embrace appropriations and revenue, breaching the most often enforced firewall set up by the single subject requirement of Article II Section 19.

            OACSA Part I Subpart A increases criminal penalties for a selection of controlled substances crimes.  §101 revises the sentencing grid of RCW 9.94A.310 (RCW 9.94A.510) to add 24 months to the presumptive sentence of any person convicted of violating RCW 69.50.401(a) if done in proximity of the perimeter of a school campus or school bus stop.  §112 added RCW 69.50.435 to increase the penalty of a controlled substance crime if performed in proximity of a school campus or bus stop. §102 added heroin and cocaine crimes to Seriousness Score VIII within RCW 9.94A.320 (RCW 9.94A.515), and made other provisions to the Seriousness Score Table.  §103 revised RCW 9.94A.360(13) (RCW 9.94A.525) to increase the number of points previous felony drug convictions are worth for sentencing for present drug offense convictions.  As herein above described, §104 revises RCW69.50.401(a)(1)(i) to enhance the fine where more than two kilograms of the controlled substance is involved.  §105 added a provision, RCW 69.50.425, for a mandatory minimum sentence of 24 hours of imprisonment for each conviction of a controlled substance misdemeanor.  §106 added a provision, RCW 69.50.430, adding additional fines to other fines provided for convictions of controlled substances felonies.  §107 was partial vetoed by Governor Gardner.

            OACSA §§101-106 and §112 arguably embrace one subject: to increase the penalty for a selection of controlled substances crimes and an across the board increase in the fines imposed for controlled substance felonies and a mandatory minimum one day prison sentence for controlled substance misdemeanors.  However, §§108, 109, and 110 blame increased trafficking in controlled substances for drive by shootings and increases penalties for reckless endangerment.  Reckless endangerment is a different crime and therefore a different subject than controlled substances trafficking.  One need not perform any controlled substance crime to commit the crime of reckless endangerment.  Neither is reckless endangerment a necessary element to prove a controlled substance crime.

            OACSA §115 authorized the Department of Social and Health Services (DSHS) to develop up a juvenile offenders structured residential program.  This is simply a different subject than defining crimes that could be committed by adults or juveniles.

            OACSA Part I Subpart C, §§116-121 revises provisions concerning the suspension of juvenile driver’s licenses for a variety of liquor law and controlled substance violations.

            OACSA Part II embraces several different subjects as follows:

            OACSA Part II Subpart A §§201-209 adds new sections to chapter 9.73 RCW to provide for one party consent to recording of telephone calls made by police investigating controlled substance crimes and providing for the admissibility of such recordings.  §210 adds RCW 9.73.095 to provide for the recording of outgoing prison inmate calls with a warning to persons receiving such calls.  This provision is without regard to whatever crimes an inmate may be discussing or not discussing.  Subpart C §§211-212, adds a new section and revises RCW 69.50.505 to provide for seizure and forfeiture of property allegedly involved in controlled substance crimes.  Subpart D §§213-227 established chapter 10.66 RCW to provide that in a civil action, a superior court may issue an injunctions prohibiting a convicted drug offender from entering or being present in a certain protected area defined geographically.  §228 added RCW 69.50.511 to provide for police to notify the Department of Ecology of any drug site they believe contains hazardous materials for the purpose of securing a contractor to cleanup the site.  Subpart F §§229-234 add new sections to chapter 66.28 RCW to provide for the registration of malt liquor kegs of capacity of four gallons or more.  §229 or RCW 66.28.200, §230 or RCW 66.28.210, and §231 or RCW 66.28.220, provide for the NON-CRIMINAL registration and labeling of kegs and the requirements to be met by liquor licensees who sell such kegs of malt liquor.  §232 established RCW 66.28.230 defines the CRIME of unlawful furnishing of a keg to a minor.  §235 created a Special Narcotics Enforcement Unit within the Washington State Patrol.  Subpart H §§236-238 established RCW 36.27.100, RCW 36.27.110, and RCW 36.27.120 to create a state-wide drug prosecution assistance program of five attorneys.  Subpart I §§239-243 established chapter 35.80A to provide that local governments may civilly condemn property that is defined as a “blight on the neighborhood”.  Subpart J §§244-247 established RCW 28A.600.210, RCW 28A.600.220, RCW 28A.600.230, and RCW 28A.600.240, to authorize school officials to search student lockers.

            OACSA Part III embraces social programs and education as follows:

            OACSA Part III Subpart A §§301-309 amended the involuntary treatment provisions of chapters 5.62 RCW and 70.96A RCW, and RCW 18.83.110 to provide for the involuntary commitment of drug addicts for observation and treatment to the extent as also provided for alcoholics and mentally incompetent persons.  §309 adds RCW 70.96A.915 to authorize the DSHS to allocate funds for the purposes of chapter 70.96A RCW

            OACSA Part III Subpart B §§310-314 adds new sections to chapter 28A.170 RCW to provide for drug and alcohol abuse prevention and early intervention in the public schools.  This is a decidedly NON-CRIMINAL provision.

            OACSA Part III Subpart C §§315-324 establishes chapter 43.270 RCW to provide for NON-CRIMINAL community mobilization for reducing substance abuse.  It establishes a grant program for communities to support activities aimed at reducing substance abuse.

            OACSA Parts I, II, III establish substantive law, OACSA Part IV provides appropriations, breaching the most often enforced firewall set up by Article II Section 19.

            OACSA Part V §§501-510 impose tax surcharges on wine, beer, spirits, cigarettes, and carbonated beverages and syrup, the tax surcharges expiring on July 1, 1995.

            OACSA Part VI §601-607 add provisions to preempt local laws and ordinances in the field of setting penalties for violation of the controlled substances act while allowing local governments to impose the same penalties as provided by the general laws for controlled substance misdemeanors, RCW 69.50.608, to ratify juvenile disposition standards to increase penalties for juvenile drug offenders, to authorize a study of the effectiveness of programs initiated in the OACSA, to provide that the legislative budget committee taxes and revenues, includes a severability clause, and declares an emergency.

            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 Wash. 2d. 845, 852, 966 P. 2d. 1271.  However, In re Boot, (1996) 130 Wash. 2d. 553, 565-568, 925 P. 2d. 964 did exactly that when it upheld the blatantly multi-subject Violence Reduction Act:

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.” Id. at 555. With respect to the title of the law, "this court has long recognized that a general title consisting of a few well-chosen words, suggesting the general subject stated, is all that is necessary to comply with the constitutional provision.” Id. at 554. "Where the title is general, 'any subject reasonably germane to such title may be embraced within the body of the bill.’” Id. at 555-56 (citing De Cano v. State, 7 Wn.2d 613, 627, 110 P.2d 627 (1941)).

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. Washington, 459 U.S. 1211, 103 S. Ct. 1205, 75 L. Ed. 2d 446 (1983)). Although we have found only nine violations of the "single subject” rule since 1891, id. at 571-72 n.6 (Talmadge, J., concurring in part/dissenting in part), articulation of the elements of rational unity has often proved elusive.

            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. Anderson, 81 Wn.2d 234, 239-40, 501 P.2d 184 (1972).

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.

 

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 OACSA 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 Wash. 2d. 183, 191, 11 P. 3d. 762 modified the essential logic of Boot in finding Initiative 695 void as embracing more than one subject in both title and content, prohibited by Article II Section 19.  Where both Boot and Amalgamated Transit found that the titles in the respective measure considered to be general, Amalgamated Transit at 142 Wash. 2d. 217 established for the first time, a test for “rational unity” for such a bill to comply with Article II Section 19:

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 Burien v. Kiga, (2001) 144 Wash. 2d. 819, 31 P. 3d. 659.

            This test for rational unity was further modified by Washington Association of Neighborhood Stores v. State of Washington, (2003) 149 Wash. 2d. 359, 370-371, 70 P. 3d. 920:

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 Union, 142 Wn.2d at 207.

     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' Br. at 31.  They rely on this court's holdings in Amalgamated Transit Union and Kiga for this position.  In Amalgamated and Kiga, it was determined that an initiative had two subjects and 'neither subject {was} necessary to implement the other.'  Amalgamated Transit Union, 142 Wn.2d at 217; Kiga, 144 Wn.2d at 828.  However, the appellants wrongly equate 'rational unity' with 'necessity,' claiming that provisions in a measure only share rational unity if they are necessary to one another.  Provisions necessary to one another understandably share rational unity, and it is not surprising that we would comment on it.  Nevertheless, neither observation relied on by the appellants indicates that the absence of such a relationship defeats rational unity.  It is on this erroneous basis that the appellants contend there is a lack of rational unity between the provisions of I-773 mentioned above.  We disagree.

      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 the VRA and the OACSA are unrelated to each other.

             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 UCSA, the OACSA, and to the Violence Reduction Act, (reversing Boot and Jenkins, as further explained below) these bills are void.

            There is simply no resemblance between the law as found in Boot and Jenkins and the law as found in Amalgamated Transit and Neighborhood Stores.  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 test established in Amalgamated Transit and clarified in Neighborhood Stores.  And while Jenkins found that all of the provisions of the OACSA were germane to its title, it did not consider whether all of these provisions were germane to each other under the same direct relationship test.

            Because Amalgamated Transit and Neighborhood Stores are the more recent constructions of Article II Section 19, they control the analysis of the bills challenged herein by Mr. GRAHAM.  If the same standards are applied to the UCSA and the OACSA that are applied to Tim Eyman Initiatives, then the UCSA and the OACSA are clearly unconstitutional.

            The UCSA provisions do not directly relate to each other as follows:

            Where the UCSA embraces more than one subject is in its Article III, establishing RCW 69.50.301-309, providing for regulation of the lawful manufacture, distribution, and dispensing of controlled substances, while Article IV defines crimes and sets forth penalties. This breaches the firewall between defining and punishing crimes on one side, and civil non-criminal matters on the other side.  State v. Tiemann, (1903) 32 Wash. 294, 298, 73 P. 375 and State ex rel Henry v. MacDonald, (1901) 25 Wash 122, 126, 64 P. 912.  The regulation of the lawful manufacture, distribution, and dispensing of controlled substances, as is necessary for health care, does not directly relate to the provisions defining crimes and enforcing the new criminal statutes.  These are two subjects in one bill and renders the entire bill void.  Furthermore, RCW 69.50.508, enacted by the UCSA, and which provides for education and research into matters concerning controlled substances, does not directly relate to the criminal provisions or directly relate to the regulation of lawful manufacturing, distributing, and dispensing of controlled substances.  The Legislature could have enacted the provisions of the UCSA in three separate bills, one for the regulation of the lawful production and use of controlled substances, one for defining and punishing controlled substances crimes, and one for education and research into matters concerning controlled substances.  UCSA is thus void as a multi-subject bill.

            The hodgepodge of provisions of the OACSA do not directly relate to each other, as follows:

            OACSA Part I by itself embraces more than one subject.  While increasing penalties for a selection of controlled substances crimes can be fitted into one subject, increasing the penalty for reckless endangerment, which is a different crime than controlled substances, is a different subject.  Unrelated criminal provisions within a bill violate Article II section 19, State v. Thomas, (2000) 103 Wash. App. 800, 14 P. 3d. 854.

            OACSA Part II embraces one party consent provisions for recording telephone conversations involving police sting operations, and for recording outgoing prisoner calls with a warning.  While police investigators trying to obtain evidence with recorded telephone calls may be necessary to implement enforcement of the criminal statutes created and revised in Part I, the recording of prisoner calls is not necessary for such purpose, it serves the purpose of prison administration, a different subject.  The provisions for seizure and forfeiture of property allegedly involved in controlled substance crimes involve a civil matter, breaching the firewall between defining crimes and civil liability.  Tiemann, supra, and Henry, supra.  The provision for a civil action in superior court to enjoin convicted drug offenders from entering certain geographically defined areas breaches the Tiemann firewall.  As does the provision for police notification to the Department of Ecology to hire a contractor to clean up a suspected meth lab that might be contaminated with hazardous materials.  The provision for meth lab clean up does not directly relate to the enforcement of criminal statutes.  The registration of malt liquor kegs does not directly relate to any of the above cited provisions of the OACSA.  To include a provision defining the crime of supplying a keg to a minor in a bill that provides for the non-criminal registration of the keg is to breach the Tiemann firewall.  While the provisions for creating a Special Narcotics Task Force and a statewide drug prosecution assistance program may directly relate to the enforcement of the criminal provisions of the OACSA, they do not directly relate to registering kegs, to cleaning up meth lab sites, or directly relate to allowing cities to civilly condemn property that is defined as a “blight on the neighborhood”. None of these provisions directly relate to the authorization of public school officials to inspect student lockers.

            Parts I and II of the OACSA do not directly relate to Part III.  Part III Subpart A, providing for the involuntary commitment of drug addicts and to allocate funds for such purpose, does not directly relate to Part III Subpart B, drug and alcohol abuse prevention and early intervention in the public schools.  Neither Part III Subpart A or B directly relate to implement Part III Subpart C, the grant program for community efforts to reduce substance abuse.

            Parts I, II, and III do not directly relate to Part V, the tax surcharges on wine, beer, spirits, cigarettes, and carbonated beverages and syrup.

            Part IV, the appropriations provisions, breach the firewall between funding provisions and provisions that affect substantive rights or establish substantive law.  Washington State Legislature, et al. v. State of Washington, et al., (1999) 139 Wash. 2d. 129, 131-132, 985 P. 2d. 353 thus reversed Jenkins, supra and 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. 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, 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.  State v. Jenkins is thus just plain wrong and the OACSA is void as a multi-subject bill.

            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 at 142 Wash. 2d. 217; and Burien v. Kiga at 144 Wash. 2d. 825.  Because both title and statutory text of the UCSA and both title and text of the OACSA each embrace more than one subject, these bills are void in their entirety.

CONCLUSION

            For the reasons stated herein, the Uniform Controlled Substances Act, defined by Laws 1971 1st ex. sess. chapter 308 should be declared void as a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution, RCW 69.50.401 should be declared void as having been defined by a multi-subject bill, and all subsequent bills amending the relevant portions of this statute declared void as amending void statute and are therefore void to the extent they amend void statute, and one of these bills, the Omnibus Alcohol and Controlled Substances Act, Laws 1989 chapter 271, which provided for enhanced fines in RCW 69.50.401(a) based upon weight of the controlled substance, should be declared void as a multi-subject bill prohibited by Article II Section 19 of the Washington Constitution, and with no valid statute remains that the defendant allegedly violated by the actions alleged against him, this motion to dismiss should be granted.

Respectfully submitted, Thermidor 9, 2004,

                                                            ____________________________________

                                                                        Justin Case,                  WSBA #45359

                                                                        Qiahao Yiqian Li,         WSBA #1000

                                                                        Attorneys for defendant