# State v. McGee

> Washington Supreme Court · December 9, 1993 · 122 Wash. 2d 783

URL: https://www.frixlaw.com/law-library/cases/9559892

## Case

- **Full name:** The State of Washington, Respondent, v. Earic McGee, Petitioner
- **Court:** Washington Supreme Court
- **Decided:** December 9, 1993
- **Citations:** 122 Wash. 2d 783; 864 P.2d 912; 1993 Wash. LEXIS 426
- **Precedential status:** Published
- **Opinion:** Concurrence by Brachtenbach
- **Judges:** Brachtenbach, Johnson
- **Cited by:** 87 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/9559892

## How later opinions describe it (automated extraction)

- rejecting as unreasonable interpretation rendering statute’s language superfluous

## Opinion text

Brachtenbach, J.
(concurring) — I concur entirely with the majority, but write separately to disagree with the dissent on two points.
First, the dissent would hold that because the statute in question has been interpreted one way by one division of the Court of Appeals and another way by another division, and *791 because there is conflict in the federal circuit courts on an analogous statute, there is ambiguity in the statute involved herein. The dissent would hold that this division between lower courts is determinative of the existence of ambiguity. Dissent, at 797. Therefore, the rule of lenity would automatically apply in every such instance.
The dissent's notion of this court's function is wrong and contrary to our cases. Interestingly, the dissent cites no authority for its erroneous statement of law.
This court has the ultimate duty and authority to determine whether a statute is ambiguous.
On matters of statutory interpretation, the ultimate authority to determine the meaning and purpose of the statute is vested in this court. Because the interpretation of a statute is a question of law, our review is de novo. Accordingly, we interpret [the statute] independently of the trial court's interpretation.
(Citations omitted. Italics mine.) Multicare Med. Ctr. v. Department of Social & Health Servs., 114 Wn.2d 572 , 582 n.15, 790 P.2d 124 (1990). Accord, State v. Elgin, 118 Wn.2d 551, 555 , 825 P.2d 314 (1992).
The dissent's proposed rule would abdicate this court's authority and responsibility. The reason for outright rejection of the dissent's unsupported rule was well stated by Justice Marshall: "Nor have we deemed a division of judicial authority automatically sufficient to trigger lenity. If that were sufficient, one court's unduly narrow reading of a criminal statute would become binding on all other courts, including this one." (Citation omitted.) Moskal v. United States, 498 U.S. 103, 108 , 112 L. Ed. 2d 449 , 111 S. Ct. 461 (1990).
Thus, the dissent's proposal that a division in the lower courts is automatically determinative of ambiguity and therefore binding on this court is patently wrong. It is not supported by any authority. It is contrary to all the holdings of this court; those holdings are consistent with our constitutional authority and duty. No principled reasoning supports the dissent's proposal. The reasons advanced in Moskal demonstrate why the dissent's theory is wildly illogical.
*792 Second, I turn to the dissent's automatic invocation of the rule of lenity as though it were an absolute command to be invoked for the benefit of the defendant anytime the defendant offers a "reasonable" interpretation different from that advanced by the State.
Before delving into the rule of lenity, I must point out a statement quoted by the dissent which is an unfounded theory. The dissent quotes from a student note as follows: "separation of powers cannot be preserved unless judges are prevented from construing statutory mandates liberally." Dissent, at 800. Neither the dissent nor the student author appreciates why separation of powers is relevant in construing statutes. The point is rather simple. Regardless of the label — liberal or strict — the judiciary cannot interpret a statute so as to create either a crime or a punishment which is not within the statutory language. The theory that liberally construing a statute violates the doctrine of separation of powers has been labeled "clearly unsound". Note, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748 , 757 (1934-1935). Indeed, our Legislature has mandated a liberal construction of the alcohol beverage control act, RCW Title 66, including its penal provisions, RCW 66.44. The dissent cites no case that has ever held such legislative direction violates the separation of powers doctrine.
This court, like many others, has invoked the rule of lenity without any examination of its history, purpose and limitations. The Harvard Law Review note, cited above, provides an excellent discussion of its origin in the "unmitigated severity", often death, of punishment of numerous crimes in the 16th century. 48 Harv. L. Rev. at 749-51.
However, "[applications of the early common-law rule of strict construction produced numerous examples of legislative frustration in the field of criminal law. Consequently, the legislatures of many states have abrogated or modified the rule." (Italics mine.) 3 N. Singer, Statutory Construction § 59.07, at 136 (5th ed. 1992).
Washington is among those states which have modified the rule. In 1909 the Legislature enacted its Criminal Code *793 and provided: "Every provision of this act shall be construed according to the fair import of its terms." Laws of 1909, ch. 249, § 46, p. 902. In 1975 the Legislature extensively revised the Criminal Code, but was even more explicit in modifying the common law ride. RCW 9A.04.020(2) provides:
The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title.
N. Singer goes so far as to state that a similar provision abrogates the common law rule of strict construction. "One type of statute specifically abrogates the common-law rules of strict construction of penal statutes and provides, instead, that all penal statutes 'are to be construed according to the fair import of their terms, with a view to effect their objects and to promote justice.'" 3 N. Singer § 59.07, at 136.
The Oregon court has recognized the proper application of such a statute. In State v. Moore, 192 Or. 39, 46 , 233 P.2d 253, 256 (1951), it held:
Section 23-106, O.C.L.A., reheves us from applying the common law rule of strict construction to penal statutes and substitutes instead the duty to construe them "according to the fair import of their terms, with a view to effect its objects and to promote justice." A search for the fair import comprehends a reasonable and sensible construction. ...
Moore , at 46.
I find no Washington case which analyzes the meaning of RCW 9A.04.020(2) in relation to the rule of lenity. The statute has a purpose and this court should no longer ignore its existence. I am not aware of a case where the issue has been briefed, but other courts have more fully explored the rule of lenity, quite apart from legislative modification or abrogation. Several are worth noting, rather than continuing with a robotic invocation whenever the court can discern some degree of ambiguity, however minor, in a penal statute.
There is merit in the following admonition: "The rule of lenity, like other canons of construction, extends no further than the functions it serves. It does not preclude the implementation of the criminal law every time a statute needs *794 construction, for all enactments require elucidation." United States v. Palmer, 864 F.2d 524, 527 (7th Cir. 1988).
N. Singer suggests that "the conclusion is warranted that they [the cases] evince a wide-spread sentiment that the historic rule of strict construction of penal statutes is no longer justified or desirable. Modem emphasis of the use of fair procedures to determine when an individual is subject to penal liability suggests that procedural safeguards may now be more suitable than the safeguard of strict construction to protect the interests of individuals." 3 N. Singer § 59.07, at 137.
The United States Supreme Court, in two recent decisions, the first written by Chief Justice Rehnquist and the second by the late Justice Marshall, has put into reasonable perspective the proper scope and application of the rule of lenity, quite apart from any statute abrogating or modifying the common law rule.
In Chapman v. United States, 500 U.S. 453, 463 , 114 L. Ed. 2d 524, 537 , 111 S. Ct. 1919 (1991), the Chief Justice explained:
The rule of lenity, however, is not applicable unless there is a "grievous ambiguity or uncertainty in the language and structure of the Act," Huddleston v. United States, 415 U. S. 814, 831 [, 39 L. Ed. 2d 782 , 94 S. Ct. 1262 (1974)], such that even after a court has " 'seize[d] every thing from which aid can be derived,'" it is still "left with an ambiguous statute." United States v. Bass, 404 U. S. 336, 347 [, 30 L. Ed. 2d 488 , 92 S. Ct. 515 (1971) (quoting United States v. Fisher, 2 Cranch 358, 386 [, 2 L. Ed. 304 ] (1805)). "The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United States, 364 U. S. 587, 596 [, 5 L. Ed. 2d 312 , 81 S. Ct. 321 ] (1961).
Justice Marshall's opinion likewise makes clear that the rule of lenity is one carefully circumscribed.
Because it is possible to read the statute as applying only to forged or counterfeited securities, and because some courts have so read it, Moskal suggests we should simply resolve the issue in his favor under the doctrine of lenity. . . .
In our view, this argument misconstrues the doctrine. We have repeatedly "emphasized that the 'touchstone1 of the rule *795 of lenity 'is statutory ambiguity.'" Bifulco v. United, States, 447 U. S. 381, 387 [, 65 L. Ed. 2d 205 , 100 S. Ct. 2247 ] (1980), quoting Lewis v. United States, 445 U. S. 55, 65 [, 63 L. Ed. 2d 198 , 100 S. Ct. 915 ] (1980). Stated at this level of abstraction, of course, the rule
"provides little more than atmospherics, since it leaves open the crucial question — almost invariably present — of how much ambiguousness constitutes . . . ambiguity." United States v. Hansen, 249 U. S. App. D. C. 22, 30, 772 F. 2d 940, 948 (1985) (Scalia, J.) (emphasis added), cert. denied, 475 U. S. 1045 [, 89 L. Ed. 2d 571 , 106 S. Ct. 1262 ] (1986).
Because the meaning of language is inherently contextual, we have declined to deem a statute "ambiguous" for purposes of lenity merely because it was possible to articulate a construction more narrow than that urged by the Government. See, e. g., McElroy v. United States, 455 U. S. 642, 657-658 [, 71 L. Ed. 2d 522 , 102 S. Ct. 1332 ] (1982). Nor have we deemed a division of judicial authority automatically sufficient to trigger lenity. See, e. g., United States v. Rodgers, 466 U. S. 475, 484 [, 80 L. Ed. 2d 492 , 104 S. Ct. 1942 ] (1984). . . . Instead, we have always reserved lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to "the language and structure, legislative history, and motivating policies" of the statute. Bifulco v. United States, supra, at 387 . . ..
(Citations omitted.) Moskal v. United States, 498 U.S. 103, 107-08 , 112 L. Ed. 2d 449 , 111 S. Ct. 461 (1990).
It must be noted that Chapman v. United States, supra, holds that the rule of lenity is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the act.
On occasion we have declared a more reasonable view. In State v. Carter, 89 Wn.2d 236, 242 , 570 P.2d 1218 (1977), this court held: "Strict construction does not mean that a forced, narrow or overstrict construction should be applied to defeat the intent of the legislature." Accord, State v. Cann, 92 Wn.2d 193, 197-98 , 595 P.2d 912 (1979)!
In State v. Rinkes, 49 Wn.2d 664 , 306 P.2d 205 (1957), this court set out specific rules for construing penal statutes, including the following:
Where an act has a doubtful or ambiguous meaning, it is the duty of the court to adopt a construction that is reasonably liberal, in furtherance of the obvious or manifest purpose of the legislature. . . .
*796 Penal statutes are to be construed strictly, to the end that offenses not entitled to be included shall not be prosecuted. But they are not to be construed so strictly that they would be defeated by a forced and over-strict construction. State v. Larson, 119 Wash. 123, 125, 204 Pac. 1041 (1922), and cases cited.
Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature.
Rinkes , at 667.
In summary, the rule of lenity, in an appropriate case, should be reexamined and not applied, as we have and as the dissent urges, every time there is a possible alternative reading of a criminal statute, RCW 9A.04.020(2) must be considered. The history and purpose of the rule should be examined. At the least, we should avoid narrow or overstrict construction to defeat legislative intent. We should consider the manner in which the United States Supreme Court has employed the rule. In the future, defense counsel who claim the rule applies should address these multiple issues.
In any event, I repeat that the dissent is in dangerous error in how it finds ambiguity. No separation of powers issue is presented here, and finally the rule of lenity bears no consideration here under the solidly reasoned majority.
Durham, J., concurs with Brachtenbach, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9559892. Public record. Not legal advice.