) No. 4999999
plaintiff, )
) MOTION TO DISMISS, SMC 12A.06.180
v. ) DOES NOT APPLY TO PROTECTION
) ENTERED UNDER
CHAPTER 10.14
WINSLOW BAINBRIDGE, ) RCW, AND ORDINANCES 111857,
) 112465, 117673, AND 120059 ARE VOID
defendant. ) AS EMBRACING MORE THAN ONE
____________________________________) SUBJECT
Comes now, WINSLOW BAINBRIDGE,
defendant, and through his undersigned attorney, moves to dismiss the Complaint
on the basis that the statute under which he is prosecuted,
Seattle Municipal
Code (SMC) 12A.06.180A, as amended by Ordinances 120059 and 120202 does not
apply to orders granted under
chapter 10.14 RCW. The protection orders affecting the
defendant, granted in Kirkland v. Bainbridge,
In the alternative, the defendant
moves to dismiss the Complaint on the basis that SMC 12A.06.180 was originally
created as part of Ordinance 111857, passed in 1984, and amended by Ordinances
112465, 117673, and 120059 which each embrace more than one subject.
At the time these Ordinances were passed, the Legislature, through its
authority under
Article XI Section 11 of the
Washington Constitution 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. Ordinances 111857, 112465,
117673, and 120059 each embrace at least two subjects and are therefore
completely void as in conflict with
RCW 35.21.570 and therefore prohibited by
Article XI Section 11. All subsequent ordinances
that amend the provisions created by Ordinance 111857 and amended by Ordinances
112465, 117673, and 120059 are void as they amend void statute and to the
extent they amend void statute. As
Article II Section 19 of the
Washington Constitution applies to Acts of the
Legislature and Initiatives, so it applies directly to municipal
ordinances. Ordinances 111857, 112465,
117673, and 120059 are void as violation of both
Article II Section 19 and
Article XI Section 11.
FACTS
ALLEGED BY THE PROSECUTION
The
facts as alleged by the prosecution in the Complaint are as follows:
That during four
incidents, the defendant WINSLOW BAINBRIDGE. willfully violated a
protection order. For the purpose of
consideration of this motion, the defendant neither confirms nor denies any of
these alleged facts.
The defendant admits that there is a
protection order granted by King County Superior Court in Kirkland v. Bainbridge,
ARGUMENT
FOR DISMISSAL OF THE INFORMATION
A. SMC
12A.06.180, as Amended by Ordinances 120059 and 120202 Does Not Cover
Orders
Granted Under
Chapter 10.14 RCW in a
SMC 12A.06.180A reads in significant
part:
A. Whenever an
order is granted under this chapter, RCW Chapter
10.99,
26.09,
26.10,
26.26,
26.50, or
74.34 or an equivalent ordinance by this court or any court of
competent jurisdiction or there is a valid foreign protection order as defined
in
RCW 26.52.020 and the respondent or person to be restrained knows of the
order, a violation of the restraint provisions, or of a provision prohibiting
the person from a residence, workplace, school, or daycare, or of a provision
prohibiting the person from knowingly coming within, or knowingly remaining
within, a specified distance of a location, or of a provision of a foreign
protection order specifically indicating that a violation will be a crime is a
gross misdemeanor.
Ordinance
120202 specifically added
chapter 26.50 RCW to the list of chapters under which
orders granted are to be covered by SMC 12A.06.180.
Chapter 26.50 RCW deals with domestic
violence prevention and includes provisions for protection orders. However, Ms. Kirkland did not allege the
existence of domestic violence within
RCW 26.50.030 or file the affidavit under
oath required by this statute. The petition she filed alleged unlawful
harassment, not domestic violence. Her
Petitioner’s Affidavit, part of Exhibit A to the Li Declaration, reads in
significant part:
Incident # 03-2222222
On Thermidor 5, 2002
His
messages make no sense to a sane person.
They are getting progressively worse.
This
is causing me a great deal of emotional stress and fear.
None of
these alleged facts meet the definition of any of the crimes listed in
RCW
10.99.020. The defendant was never
arrested for nor was he charged with any crime as a result of the incidents
alleged by Ms. Kirkland. While the
police report referenced by Ms. Kirkland, Exhibit D to the Li Declaration,
describes her as afraid that the defendant might not stop making telephone
calls and might stalk her, stalking within
RCW 9A.46.110 requires following in
a manner that a reasonable person would consider to be alarming on more than
one occasion. This is not
alleged nor found, nor was any criminal charge of stalking ever filed
against the defendant. Ms. Kirkland only
believed that the defendant may be watching her apartment,
she did not have any direct observation or other source of personal knowledge
of such surveillance. None of these
facts nor the facts set forth in the Incident Report, No. 03-2222222, written
by Seattle Police Officer Mary Moore Park, Badge Serial Number 5280, Exhibit D to
the Li Declaration, fit the definition of “domestic violence” in
RCW
26.50.010(1):
(1) “Domestic violence” means: (a) Physical harm,
bodily injury, assault, or the infliction of fear of imminent physical harm,
bodily injury or assault, between family member or household members; (b)
sexual assault of one family member or household member by another family or
household member.
Telephone messages informing Ms. Kirkland that he eats liver and fava beans with a nice wine and “strangeness” in such messages do not meet these statutory definitions of domestic violence. Speculating on what it is like to be a roach caught in a roach motel is not domestic violence. Keeping a Venus flytrap plant to watch it catch insects is not domestic violence. Owning a hunting rifle with a scope and bipod and a license to hunt is not domestic violence. Neither is bragging about taking down a four point buck from 300 yards with a single shot to the head. The kill was legal and Ms. Kirkland ate some of the venison at the defendant’s apartment, along with some fava beans and a nice Chianti.
The only facts as alleged that gave
rise to the protection order are a series of telephone calls leaving messages
wherein the defendant did not threaten Ms. Kirkland, but actually apologized
for scaring her and denied that he is “crazy” or that he is a stalker. The
final protection order that was entered on
Based upon the petition, testimony, and case record,
the court finds that the respondent committed unlawful harassment, as defined
in
RCW 10.14.020, and was not acting pursuant to any statutory authority,
And based
upon such finding, imposed the restraining order.
RCW
10.14.020 reads:
(1)
“Unlawful harassment” means a knowing and willful course of conduct directed at
a specific person which seriously alarms, annoys, harasses, or is detrimental
to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would
cause a reasonable person to suffer substantial emotional distress, and shall
actually cause substantial emotional distress to the petitioner, or, when the
course of conduct would cause a reasonable parent to fear for the well-being of
their child.
(2) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. “Course of conduct” includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication. Constitutionally protected activity is not included with the meaning of “course of conduct.”
The
telephone calls were found to meet this definition, but this definition
includes a great deal of conduct beyond the conduct defined as “domestic
violence” in
RCW 10.99.020 and
RCW 26.50.010(1). The course of conduct that constitutes
“unlawful harassment” can include any “strange” behavior that alarms or annoys
a person to whom such behavior is directed, and it can include strange messages
recorded on an answering machine by a party who is aware that he is being
recorded. While “domestic violence” is
included in this statutory definition of “unlawful harassment”, not all
unlawful harassment is included within the statutory definition of domestic
violence. An analogy from mathematical
set theory is that while all squares are part of the set of shapes, not all
shapes are part of the set of squares.
Because the City Council has twice
made a deliberate decision to exclude protection orders under
chapter 10.14 RCW
from the coverage of SMC 12A.06.180, violations of such a protection order is
not a violation of SMC 12A.06.180.
Recently the
Supreme Court of
To ascertain legislative intent, a court will first turn to the plain language
of the statute. State v. Reding, 119 Wn.2d 685, 690, 835 P.3d 1019 (1992). If
the statute is unambiguous, as it is here, it is not subject to judicial interpretation
and its meaning is derived from its language alone. State v. Chester, 133 Wn.2d
15, 21, 940 P.2d 1374 (1997). The voyeurism statute protects an individual
'while the person . . . is in a place where he or she would have a reasonable
expectation of privacy.' RCW 9A.44.115(2) (emphasis added). Grammatically,
it does not make sense to apply this statement to a part of a person's body. It is
the person who is in the place, not a part of the person. The two categories of
private places modify and define the place where a person may have a
reasonable expectation of privacy. Thus, each subsection relates to the place
where the person is located (i.e., where the person is 'in'). Thus, it is the physical
location of the person that is ultimately at issue, not the part of the person's body.
As
offensive as Mr. Glas’ actions may have been, the
Legislature has to specifically prohibit it in a criminal statute in a manner
that is not “void for vagueness” for him to be guilty of any crime.
Similarly,
In re
Personal Restraint of Andress, (
Therefore, the Complaint should be
dismissed.
B. SMC
12A.06.180, Created by Ordinance 111857, is Void as Part of an Ordinance
That
Embraces More Than One Subject. As
Amended by Ordinances 112465,
117673,
and 120059, it is Void to the Extent Amended by Ordinances That
Embrace
More Than One Subject.
SMC 12A.06.180 was created by
Ordinance 111857 and amended by Ordinances 112465, 117673, 120059.
RCW 35.21.570, enacted in 1965, 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.
Ordinance 111857 revised the definition of domestic
violence set forth in SMC 12A.06.120, added provisions for obtaining
protections orders in this Court in SMC 12A.06.155, SMC 12A.06.160, SMC
12A.06.165, SMC 12A.06.170, and SMC 12A.06.175.
As long as the Ordinance was enacting civil provisions for this kind of
equitable relief, it meets the rational unity test established for
Article II
Section 19. However, Ordinance 111857
embraced a second subject when it enacted SMC 12A.06.180 to provide for
penalties, by defining the violation of a protection order granted by
this
Court as a crime and as contempt of
this Court.
Ordinance 112465 added provisions to SMC 12A.06.040 to
create a new definition of the crime of harassment and provided authority to
this Court to impose no-contact orders upon a criminal charge of harassment,
and it revised SMC 12A.06.180 to add violations of protection orders granted by
other courts to the definition of the crime of Knowingly Violating a Protection
Order. As long as the Ordinance was
enacting new definitions of crimes for this kind of equitable relief, it meets
the rational unity test established for
Article II Section 19. However, Ordinance 112465 embraced a second subject
when it revised SMC 12A.06.130, SMC 12A.06.155, SMC 12A.06.160, SMC 12A.06.165,
SMC 12A.06.170, and SMC 12A.06.175 which are civil provisions providing for and
governing protection orders, except that SMC 12A.06.130 also defined a crime,
embracing two subjects by itself.
Ordinance 117673 revised the definitions of domestic
violence and other terms set forth in SMC 12A.06.120, and revised SMC
12A.06.130, SMC 12A.06.155, SMC 12A.06.160, SMC 12A.06.165, SMC 12A.06.170, and
SMC 12A.06.175 which are civil provisions providing for and governing
protection orders. As long as the
Ordinance was enacting civil provisions for this kind of equitable relief, it
meets the rational unity test established for Article II Section 19. However, Ordinance 117673 embraced a second
subject when it split SMC 12A.06.130 into SMC 12A.06.130A, civil procedure for
a no-contact order, and SMC 12A.06.130B, the crime of violating a no-contact
order, and added language to both provisions.
Ordinance 117673 also revised SMC 12A.06.180A, the criminal statute at
issue in this case.
Ordinance 120059 embraced two subjects when it revised
both SMC 12A.06.130A, civil procedure for obtaining no contact order, and SMC
12A.06.130B, the crime of violating a no-contact order. It revised SMC 12A.06.165 and SMC 12A.06.170
which are civil provisions governing protection orders. But it also revised SMC 12A.06.180, the
criminal statute at issue in this case.
In addition, it revised SMC 12A.18.010 to revise and add definitions,
and added SMC 12A.14.290, to define criminal mistreatment of a child or
dependent person.
Ordinances 111857, 112465, 117673, and 120059 therefore
breach the firewall 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.
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
Therefore, the Complaint should be
dismissed.
IV. CONCLUSION
For the reasons stated herein, the
Complaint should be dismissed because SMC 12A.06.180 as amended by Ordinances
120059 and 120202 does not apply to protection orders granted under
chapter
10.14 RCW by a superior court, and the protection orders in effect against the
defendant at the time of the alleged incidents were granted under
chapter 10.14 RCW by a superior court, and in the alternative:
Ordinances 111857, 112465, 117673,
and 120059 and SMC 12A.06.040, SMC 12A.06.120, SMC 12A.06.130, SMC 12A.06.155,
SMC 12A.06.160, SMC 12A.06.165, SMC 12A.06.170, SMC 12A.06.175, and SMC
12A.06.180 as amended and established by Ordinances 111857, 112465, 117673, and
120059 should be declared void as multi-subject bills prohibited by
Article II
Section 19 of the Washington Constitution, that all other ordinances that
amended the provisions of these multi-subject ordinances to establish the
current SMC 12A.06.180 amended void statute and thus created void statute, and
that SMC 12A.06.180 is a void statute.
SMC 12A.06.180 as established by Ordinance 111857 and amended by
Ordinances 112465, 117673, and 120059 should be declared void as part of
multi-subject bills in conflict with
RCW 35.21.570 and
Article XI Section 11 of
the Washington Constitution. Pursuant to
such declaratory relief, the Complaint should be dismissed.
Respectfully submitted, Brumaire 23, 2003,
____________________________________
Justin
Case WSBA #45359
Qiahao Yiqian Li, WSBA #1000
Attorneys for Defendent
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