# State v. Klinker

> Washington Supreme Court · June 12, 1975 · 85 Wash. 2d 509

URL: https://www.frixlaw.com/law-library/cases/9546486

## Case

- **Full name:** The State of Washington, Appellant, v. Jeffery Lawrence Klinker, Respondent
- **Court:** Washington Supreme Court
- **Decided:** June 12, 1975
- **Citations:** 85 Wash. 2d 509; 537 P.2d 268; 1975 Wash. LEXIS 900
- **Precedential status:** Published
- **Opinion:** Dissent by Hunter
- **Judges:** Utter, Stafford, Finley, Wright, Brachtenbach, Hamilton, Rosellini, Hunter
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546486

## How later opinions describe it (automated extraction)

- holding that it would be inequitable to permit the statute of limitations to run while there is no constitutionally adequate procedure to bring a claim
- noting, in a seizure case, that probable cause is "a measure of constitutional sufficiency which varies with the situation presented"

## Opinion text

Hunter, J.
(dissenting) — I dissent. The sole issue presented by the parties to this action is whether RCW 26.24.010 and RCW 26.24.020 unconstitutionally violate the defendant’s Fourteenth Amendment rights to due process of law. The majority opinion, for all practical purposes, has chosen to disregard this issue due to the United States Supreme Court’s alleged inability to articulate a specific rule applicable to statutes which authorize a taking without prior notice and hearing. I do not find our decisions and those of the United States Supreme Court to be so irreconcilable as to mandate a summary dismissal of this issue without further comment.
In Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 422 , 511 P.2d 1002 (1973), we recognized that the fundamental requirements of procedural due process could be synthesized and refined into the following standard:
[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.
Boddie v. Connecticut, 401 U.S. 371, 377 , 28 L. Ed. 2d 113 , 91 S. Ct. 780 (1971).
(Italics mine.) Implicit in this standard is the mandate for notice reasonably calculated to apprise an individual of the pendency of the action. Armstrong v. Manzo, 380 U.S. 545 , 14 L. Ed. 2d 62 , 85 S. Ct. 1187 (1965). However, it is essential to the proper application of this standard to any given set of facts that one fully comprehend this is not a strict, inflexible, hard and fast rule; rather, it presumes that *526 “[a] procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case.” Bell v. Burson, 402 U.S. 535, 540 , 29 L. Ed. 2d 90 , 91 S. Ct. 1586 (1971). Therefore, the procedural safeguards afforded in each situation should be tailored to the specific function to be served. Goldberg v. Kelly, 397 U.S. 254, 267 , 25 L. Ed. 2d 287 , 90 S. Ct. 1011 (1970). In Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 , 95 L. Ed. 817 , 71 S. Ct. 624 (1951), this judicial elasticity was properly described by Justice Frankfurter’s concurring opinion when he said on page 163:
Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.
Therefore, the requisites of notice and a hearing prior to the temporary deprivation of property or liberty may be momentarily postponed in those instances where, due to a countervailing state interest of overriding significance, an extraordinary situation exists. Boddie v. Connecticut, 401 U.S. 371 , 28 L. Ed. 2d 113 , 91 S. Ct. 780 (1971); Olympic Forest Prods., Inc. v. Chaussee Corp., supra. Contrary to what the majority implies, even the strictest interpretation of the Fourteenth Amendment by the United States Supreme Court recognizes the propriety of this exception. Sniadach v. Family Fin. Corp., 395 U.S. 337 , 23 L. Ed. 2d 349 , 89 S. Ct. 1820 (1969); Fuentes v. Shevin, 407 U.S. 67 , 32 L. Ed. 2d 556 , 92 S. Ct. 1983 (1972). Thus, the proper question, which the majority meticulously refrained from answering, is whether RCW 26.24.010 and .020 represent a countervailing state interest of overriding significance, thereby creating an extraordinary situation of sufficient magnitude to justify the temporary postponement of notice and hearing prior to any deprivation of liberty. That is, are the challenged sections of the Washington filiation procedures legitimized under the police powers vested in this state. I am fully convinced that they are.
*527 In State v. Conifer Enterprises, Inc., 82 Wn.2d 94, 96 , 508 P.2d 149 (1973), we enunciated a two step process to be applied when “measuring the constitutionality of a legislative enactment against the permissible bounds of the police power.” The proper considerations are:
First, does it tend to promote the health, peace, morals, education, good order and welfare of the people? More specifically, does it tend to correct some evil or promote some interest of the state? ... If the answer is yes, the wisdom, necessity and policy of the law are solely within the jurisdiction of the legislature. . . .
The second inquiry, more narrow, but equally important, is whether the particular statute under scrutiny bears a reasonable and substantial relation to accomplishing the purpose established in step one.
(Citations omitted. Italics mine.) State v. Conifer Enterprises, Inc., supra at 96-97. In other words, does an evil exist and, if so, does the passage of the challenged enactment bear a reasonable relationship to the correction of the evil? In the instant case, the evil which exists is the problem surrounding the need of support for illegitimate children. I feel it is important to the proper disposition of this case, to fully comprehend the scope of this problem. Under RCW 74.12, the legislature has required that this State provide funds for the health, education and welfare of all dependent children, which by definition includes illegitimate children. RCW 74.12.010. In a recent study made by the United States Department of Health, Education and Welfare, it was discovered that 32 percent of all children who qualify for the Aid to Dependent Children (ADC) programs are illegitimate. United States Department of Health, Education and Welfare, Welfare Myths vs Facts.
In the state of Washington, 1974 statistics for the month of January reveal that there are approximately 121,629 persons receiving funds from the ADC program. Washington State Department of Social and Health Services, Income Maintenance, Community Social Services and Medical Assistance, (January 1974). Translated into financial terms, this represents a tax drain on the State of $8,819,408 for the *528 month of January. Admittedly, this figure includes funds expended upon both legitimate and illegitimate children. However, applying the national statistic of 32 percent a sizable proportion is directed to children born out of wedlock.
A similar study was recently conducted in the state of California which results are logically comparable to Washington in terms of percentages, since the United States Department of Health, Education and Welfare survey found that the 32 percent figure was basically consistent throughout the United States. The California survey disclosed that 75 percent of the biological fathers of illegitimate children failed to economically assist the mother before delivery, or the mother and child after delivery. California State Social Welfare Board, Unplanned Parenthood —A Study of Unwed Parents and the Potentially Endangered Child, Sacramento, California Department of Social Welfare 12 (April 1974). This report attributed the inherent problems surrounding the birth of an illegitimate child to the lack of responsibility demonstrated by absent putative fathers.
The above statistics definitely verify that an evil does exist which beyond question constitutes a valid governmental interest. Furthermore, these surveys document that one source of the problem, if not the dominant source, is a tendency on the part of putative fathers to ignore their legal responsibility toward their children. Therefore, it is quite conceivable that a putative father, in an attempt to avoid being identified with the parentage of an illegitimate child and the concomitant responsibility of support, will abscond in hopes of removing himself from the jurisdiction of the court. It is conceivable that an individual faced with filiation proceedings may be as likely to flee as an individual faced with the charge of desertion or nonsupport where arrest without notice is effectual under our criminal statute. See RCW 26.20.030. To combat these tendencies of a putative father, the legislature has provided a security mechanism to assure the putative father’s presence at the *529 hearing. The judicial concept of providing a form of security in filiation proceedings is neither unique nor recently developed. See Copes v. Malacarne, 118 Conn. 304 , 172 A. 89 (1934); Welford v. Havard, 127 Miss. 88 , 89 So. 812 (1921); Hamilton v. State, 127 Md. 312 , 96 A. 523 (1916); O’Brien v. State, 126 Md. 270 , 94 A. 1034 (1915); and State ex rel. Patterson v. Pickering, 29 S.D. 207 , 136 N.W. 105 (1912). Most recently, the Supreme Court of the State of Utah, in the case of State v. Judd, 27 Utah 2d 79 , 493 P.2d 604 (1972), was confronted with a challenge to the constitutionality of their arrest and bond provisions. In upholding their statute, that court stated on page 83:
The courts have ascribed to the arrest provisions of bastardy statutes as for security purposes, but this factor does not alter the proceeding from a civil to a criminal status because the object of this remedial legislation is not punishment by fine or imprisonment but a judgment compelling support.
(Italics mine.) The Utah court recognized that
there is a rational basis to support the legislative determination that an unmarried pregnant woman may deem herself insecure and desire a means whereby she can be assured of the appearance of the putative father at the trial.
State v. Judd, supra at 83 .
It is perceptible that the legislature of the State of Washington has reached the same conclusion. There is a quantum of evidence, as discussed above, to support the need for the arrest and bond provisions of RCW 26.24.010 and .020, in order to combat the evil connected with alleged putative fathers refusing to accept their responsibility. It is a well recognized rule that if a court can reasonably conceive of a state of facts which would justify a given statute, those facts will be presumed to exist and, furthermore, it will be presumed that the enactment was passed with reference to those facts. State v. Laitinen, 77 Wn.2d 130 , 459 P.2d 789 (1969). Furthermore, the statutes challenged definitely bear a reasonable relation to the elimination of the evil to *530 which they are directed; it is a reasonable means by which to accomplish a justifiable end. State v. Conifer Enterprises, Inc., supra. I am mindful that our filiation statutes were enacted in 1919 when there was a vast difference in the responsibilities assumed by the State for dependent children than as of the present time. However, the failure of the legislature to change or modify these statutes gives credence to its continuing approval. See generally 2 C. Sands, Sutherland Statutory Construction § 34.01, at 21 (1973). Jurisdictionally it is not the function of this court to determine the propriety of a given law; rather, we must scrutinize its provisions to determine whether it is valid. In Seattle v. Hill, 72 Wn.2d 786, 801 , 435 P.2d 692 (1967), we reaffirmed our adherence to this rule as we emphasized that
courts are not concerned with the wisdom of a statute but only with its meaning and validity. That the judges can think of a better way to attack society’s ills than the methods adopted by the executive and legislative branches of government gives them no license to employ the judicial power in forcing their views upon society.
At this point in my analysis, I feel it is important to remember that the statutes -under consideration do not provide for a permanent deprivation of liberty, or even an indefinite deprivation; rather, we are speaking of a temporary postponement in order to provide security against the conceivable propensity of a putative father to shirk his legal responsibility and fail to appear upon notice before the summoning tribunal. In Mitchell v. W.T. Grant Co., 416 U.S. 600 , 40 L. Ed. 2d 406 , 94 S. Ct. 1895 (1974), the United States Supreme Court discussed the effect of securing the interests of all concerned parties within the confines of constitutionally protected due process rights. Mitchell dealt with the Louisiana sequestration laws which made available to a lien creditor a writ of sequestration to forestall waste or alienation of encumbered property. The writ was obtainable on the ex parte application of the creditor, without notice or hearing to the debtor. To protect the *531 debtor’s interest, the law provided that he could reobtain his property by filing an interim bond or present his claim at a statutorily guaranteed hearing which took place immediately. Justice White, speaking for the majority, noted that due process questions must take into account the interests of both parties to the dispute. Speaking of Fuentes v. Shevin, 407 U.S. 67 , 32 L. Ed. 2d 556 , 92 S. Ct. 1983 (1972), and Sniadach v. Family Fin. Corp., 395 U.S. 337 , 23 L. Ed. 2d 349 , 89 S. Ct. 1820 (1969), the court remarked on page 611:
[Tjhey merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided.
In the Mitchell case, the court had earlier stressed that the danger of destruction and alienation could not be properly guarded against if notice and a hearing were supplied before the seizure where “there is the real risk that the buyer, with possession and power over the goods, will conceal or transfer the merchandise to the damage of the seller.” Mitchell v. W.T. Grant Co., supra at 608-09. Finally, the court emphasized on page 610 that “the debtor may immediately have a full hearing on the matter of possession following the execution of the writ, thus cutting to a bare minimum the time of creditor- or court-supervised possession.” Applying these due process concepts to the instant case, we find that the overriding governmental interest is buttressed by the United States Supreme Court’s sanction on procedures which assure security to all parties to a dispute. Due process is not a one-sided concept. See also Thompson v. DeHart, 84 Wn.2d 931 , 530 P.2d 272 (1975), in which we applied the above reasoning to the attachment of real property.
While certainly narrowing the scope of earlier cases, Mitchell is not a total departure from previously recognized norms. Even under the earlier cases, the United States *532 Supreme Court consistently recognized the existence of extraordinary situations in which the normal notice and hearing procedures could be temporarily postponed. 9 In Fuentes v. Shevin, supra, the court stated on page 90:
There are “extraordinary situations” that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U. S., at 379 . These situations, however, must be truly unusual. Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
(Italics mine.) I find no problem in fitting the instant case within these boundaries. It has already been demonstrated that RCW 26.24.010 and .020 qualify as enactments serving a vital governmental interest and that there is conceivably a definite need for prompt action. Secondly, the State has retained a strict control through mandating a full judicial hearing within 10 days of the arrest, thereby providing the defendant with a full and meaningful opportunity to be heard. Finally, the arrest warrant prior to any notice is issued only upon the filing of a complaint naming the defendant as the putative father, and a judicial determination that the requirements of the statute exist. Therefore, even under the more restricted view of due process represented by Fuentes v. Shevin, supra, the arrest and bond provisions of RCW 26.24.010 and .020 are constitutionally supportable.
*533 The majority has attempted to categorize recent United States Supreme Court decisions as creating an inconsistent state of confusion. On the contrary, the only possible discomfiture relates to the question of whether the standards of Fuentes and Sniadach are too stringent, and a less restrictive criteria, as envisioned in Mitchell , would be more equitable to the parties concerned. In short, the court has considered making the Fuentes rule less restrictive, yet it has never intimated that it has even conceived of altering its present line of cases by escalating the standards for due process beyond Fuentes . Thus, if a statute can be shown to come within the exception provided in Fuentes , it must clearly be constitutional, since the rule enunciated therein represents the maximum protection due process affords.
The majority, while refusing to discuss the “extraordinary situation” exception for fear of its alleged speculative status, now formulates an entirely new exception unprecedented in law and without authority. The majority states that notice and hearing must be provided except in those cases where a judicial officer makes a finding of a special need for a temporary postponement. This approach bears a strong resemblance to Fourth Amendment reasoning wherein a judicial officer must make a finding of probable cause in each instance before the issuance of a warrant. The “extraordinary situation” exception requires just what it says. If the overriding governmental interest in a particular area qualifies as an extraordinary situation, then a temporary postponement of notice and a hearing is justified whenever that situation arises. In other words, if the subject qualifies, then the exception is applicable to all individuals who come within the confines of its application. The majority, incorrectly I believe, seeks to utilize the exception on a case by case basis by demanding that the court determine whether the specific facts, as they apply to the specific individual, warrants a temporary deprivation without due process. I do not believe this was ever envisioned by the United States Supreme Court, who formulated the *534 “extraordinary situation” exception originally, and reaffirmed it almost religiously. I would find RCW 26.24.010 and .020 to be in full compliance with the established standards under the Fourteenth Amendment.
I now direct my comments to the basis upon which the majority has chosen to affirm the trial court; an alleged violation of the fourth amendment to the United States Constitution guaranteeing the right of a person to be secure from unreasonable searches and seizures. The majority first contends that the statutes under consideration mandate a magistrate to issue a warrant for the detention of a person alleged to be a putative father without the magistrate first making an independent determination as to whether reasonable grounds exist for believing that the person charged is in fact the father of an illegitimate child. I disagree.
The filiation statute on its face requires the magistrate to make this independent determination. It requires the magistrate to find the complaining party to be an unmarried woman; that she is presently pregnant, or has an illegitimate child, and that she identify the person who is accused of being the putative father. It is only after fulfillment of these conditions required by the statute that reasonable grounds and probable cause exist to justify issuing the warrant for detention of the putative father.
Admittedly, the statute does not use the golden phrase “independent determination,” yet I find no difficulty in reading such a limitation into the listed requisites. The majority’s conclusion rests on the premise that the judge will abdicate his judicial duties and function as a mere pawn of the complaining witness. Surely the judiciary of this state warrants a greater level of confidence. Thus, we are confronted with a statute which conceivably would allow two different interpretations; that of the majority and that of the dissent. Our rule has consistently been that when a statute is capable of being given two interpretations, one rendering it constitutional and the other unconstitutional, the courts will interpret it in a fashion which upholds its *535 constitutionality. George v. Day, 69 Wn.2d 836 , 420 P.2d 677 (1966). Therefore, the proper defense available to the defendant herein would be to allege that the judge did not have sufficient facts to make a determination of probable cause, not that the statute did not allow for such a determination to be made in the first place.
The majority further seeks to support its ultimate determination by pointing to the fact that the allegation is based on the testimony of an interested party. To the contrary, the testimony of the interested party in this instance should be given great weight since she is in the best position to know what those facts are. There is no basis in our past cases for limiting the right of an interested party to testify and it is up to the trier of fact to determine how credible that testimony is and how much weight it is to be given. In re Snyder, 85 Wn.2d 182 , 532 P.2d 278 (1975).
A second violation of the Fourth Amendment pointed to by the majority is the alleged “unreasonable” nature of RCW 26.24.010 and .020.1 agree that when one is considering whether a statute is reasonable, that person must consider the governmental interest which is being served, and that greater governmental interests justify greater intrusions. Earlier in this dissent I attempted to set out, in detail, the true nature and scope of the particular governmental interest with which we are dealing. These facts, as they have been found to exist, clearly suggest an overriding governmental interest of sufficient magnitude to justify the reasonable intrusion provided for under the above statutes.
It may be argued that it would be preferable for a putative father to be given notice prior to his detention. However, the legislature, in the exercise of its judgment, has not so provided and, recognizing the compelling state interest in this type of a case, as heretofore discussed in this opinion, has determined that a putative father who has failed to provide for the support of his illegitimate child, born or unborn, is likely to avoid judicial process unless detained without notice. See Mitchell v. W.T. Grant Co., *536 416 U.S. 600 , 40 L. Ed. 2d 406 , 94 S. Ct. 1895 (1974), and Fuentes v. Shevin, 407 U.S. 67 , 32 L. Ed. 2d 556 , 92 S. Ct. 1983 (1972). Again we assert that this court cannot question legislative policy. In Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 528 , 520 P.2d 162 (1974), we said, “We are not a super legislature. ‘This court neither approves nor condemns any legislative policy.’ ”
To allay the fears of the impact of this decision, the majority makes the statement that it has not altered our criminal arrest procedures. To the contrary, the decision as written strikes down not only our filiation statute, but in addition thereto, it has struck down our entire “arrest by information” system by characterizing the pertinent rules as requiring the automatic issuance of a warrant without any judicial finding of probable cause; the identical attack the majority has made on the Washington filiation statute. The majority cites the recent United States Supreme Court ruling in Gerstein v. Pugh, 420 U.S. 103 , 43 L. Ed. 2d 54 , 95 S. Ct. 854 (1975), and in reliance thereon would limit the issuance of an arrest warrant to those instances where there has been an indictment by a grand jury. Neither Gerstein nor Washington law requires such a drastic step backwards.
First, let us consider the requirements which must be met in Washington before a warrant can be issued pursuant to an information. CrR 2.1 (b) demands that
the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. Allegations made in one count may be incorporated by reference in another count. It may be alleged that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be *537 ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
The majority would have us believe that a warrant must be issued automatically under our rules regardless of whether the facts set forth in the information provided a sufficient basis for a finding of probable cause. This is clearly an erroneous conclusion since CrR 2.2(a) provides that upon the filing of an information, the court may direct the clerk to issue a warrant. Surely these provisions fulfill the entire panoply of Fourth Amendment requisites, since the warrant cannot be issued until the essential facts are set out in a plain, concise and definite written statement which supports a finding of probable cause to the satisfaction of an independent magistrate. To say these rules allow for the automatic issuance of a warrant is simply an unreasonable interpretation.
Second, let us scrutinize the Gerstein decision in order to determine exactly what changes, if any, it actually requires. Gerstein discusses both arrest made pursuant to a warrant and without a warrant. While the opinion gives greatest emphasis to the latter, due to the facts of the case, only the former is tangentially related to the case before our court. Therefore, I will limit my comments to arrest warrants issued pursuant to an information. The court in Gerstein did not strike down the use of an information per se, but rather stated on pages 124-25:
Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.
(Footnotes omitted. Italics mine.) Thus, if a determination as to probable cause has been made prior to the issuance of a warrant, a state’s procedure is in full compliance with the rule set forth in Gerstein . This case does not mandate an adversary hearing requiring the presence of the defendant or his attorney since it is not a critical stage in the criminal *538 process. Gerstein v. Pugh, supra at 122. “The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings.” Gerstein v. Pugh, supra at 120.
The ultimate resolution of conflicting evidence demanded under either a reasonable doubt or even a preponderance standard-is clearly not required. Therefore, if an individual is arrested with a warrant issued by an independent magistrate after a determination that probable cause exists, that person’s Fourth Amendment rights have been met. As shown above, Washington’s criminal rules are in full compliance with these requirements. In fact, the true disease which Gerstein was intended to cure was the procedure where, as in Florida, a person who is arrested without a warrant and charged by information, may be jailed without any opportunity for a probable cause determination; i.e., this is post-arrest relief. The court did not strike down the use of an information in a warrantless arrest but, rather, required that an independent determination of probable cause, based on this information, be made promptly after the arrest. Obviously, the court is requiring that the process utilized for the determination of probable cause prior to the issuance of a warrant, also be utilized where an arrest is made on a warrant.
I am satisfied that the procedures in Washington, providing for the issuance of an arrest warrant pursuant to an information, are in full compliance with the Fourth Amendment and Gerstein v. Pugh, supra.
Having determined that RCW 26.24.010 and .020 are in full compliance with both the Fourteenth and Fourth Amendments, I would reverse the trial court.
Rosellini, J., concurs with Hunter, J.
Petition for rehearing denied September 9, 1975.
In North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 , 42 L. Ed. 2d 751 , 95 S. Ct. 719 (1975), the United States Supreme Court, while limiting Mitchell v. W.T. Grant Co., 416 U.S. 600 , 40 L. Ed. 2d 406 , 94 S. Ct. 1895 (1974), to its facts, did not overrule its prior decisions. Furthermore, and most important, the court relied almost solely on Fuentes v. Shevin, 407 U.S. 67 , 32 L. Ed. 2d 556 , 92 S. Ct. 1983 (1972), thereby reaffirming the propriety of the “extraordinary situation” exception.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546486. Public record. Not legal advice.