SUPERIOR COURT OF
IN AND FOR THE
STATE OF
)
plaintiff, )
) DEFENDANT’S MOTION TO DISMISS,
v. )
RCW 69.50.401(f) ADDED BY
) VOID MULTI-SUBJECT BILL,
MILLIE GRAHAM, )
ARTICLE II SECTION 19
)
defendant. )
____________________________________)
MOTION TO
DISMISS
Comes
now MILLIE GRAHAM, the defendant, and through her undersigned attorney, moves
for dismissal of the Information because
RCW 69.50.401(f) was added by Laws
1987 chapter 458, which is void as a multi-subject bill prohibited by
Article
II Section 19 of the
Washington Constitution.
FACTS
ALLEGED BY THE PROSECUTION
The
facts as alleged by the prosecution in the Information are as follows:
Defendant MILLIE GRAHAM asked her son, Michael Graham, to deliver 5 pounds of cocaine, defined as a Schedule II controlled substance by RCW 69.50.206(b)(4), 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 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 and arrest.
Defendant MILLIE GRAHAM is therefore charged in the Information with one count of Involving a Minor in a Transaction to Deliver a Controlled Substance, RCW 69.50.401(f), a Class C felony punishable in accordance with RCW 9A.20.021. She neither admits nor denies any of these alleged facts for the purpose of this motion.
ARGUMENT
FOR DISMISSAL OF THE INFORMATION
RCW
69.50.401(f) was added by Laws 1987 chapter 458 §4. 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, 2, 4, and 5 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, and 9 add new sections defining as crimes the allowing
by an owner the use of a building for manufacturing and trafficking in
controlled substances other than alcohol and the fortification of such
buildings 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 amend
provisions concerning the distributions of funds for purposes other than
enforcing criminal statutes from the
Liquor Revolving Fund. Such purposes as funding university research
into alcohol drug abuse and the
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 odd thing about Laws 1987 chapter 458 is that precisely because it is not a
huge omnibus multi-subject bill,
In re Boot does not render hopeless any
challenge to it as void for embracing more than one subject. Still,
Mr.
Tim Eyman led the people in passing two tax cutting Initiatives resulting in two
Supreme Court of Washington decisions
reversing the essential logic of
In re
Boot to strike down these Initiatives.
Amalgamated
Transit Union Local 587 v. State of
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[3],
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.
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 provisions of Laws 1987 chapter 458 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. Many of the provisions of the VRA and the OACSA do not directly relate to each other. Examples: An authorization to the Department of Health to perform a study does not directly relate to a change in a firearms statute to prohibit convicted felons from owning long firearms, and neither directly relates to a tax on wine, beer, cigarettes, and soft drinks in the VRA. Non-criminal provisions for registration of kegs of malt liquor do not directly relate to changes in controlled substance criminal statutes, and neither directly relates to drug and alcohol counseling in the public schools or to taxes on wine, beer, spirits, cigarettes, and carbonated beverage ingredients in the OACSA.
There is simply no resemblance between the law as found in Boot and Jenkins and the law as found in Amalgamated Transit, 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 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 subsequently established direct relationship test.
. Because Amalgamated Transit, Kiga, Neighborhood Stores, and Citizens are the more recent constructions of Article II Section 19, they control the analysis of the bills challenged herein by Ms. Graham. By this analysis, Laws 1987 chapter 458 is clearly unconstitutional.
The
provisions of Laws 1987 chapter 458 §§1-9 amending definitions of crimes
related to controlled substances, are not necessary to implement Laws 1987
chapter 458 §§10 to provide 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
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
CONCLUSION
For
the reasons stated herein, Laws 1987 chapter 458 should be declared void as a
multi-subject bill prohibited by
Article II Section 19 of the
Washington Constitution,
RCW 69.50.401(f) should be declared void as having been added by a
multi-subject bill, and this motion to dismiss should be granted.
Respectfully submitted, Thermidor 9, 2004,
____________________________________
Justin
Case, WSBA #45359
Attorney for defendant
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[1]
Prigg v. Pennsylvania,
(1842) 41
[2] “Where a general title is used, all that is required
is rational unity between the general subject and the incidental subjects.”