Petition for Writ of Certiorari — Conte v. Washington (No. 07-339)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
ew’
No. ees Supreme Court _
In The
Supreme Court of the ChARV Sawer
¢
JOHN GILBERT CONTE, FRANK FRANCIS
COLACURCIO, JR., FRANK FRANCIS COLACURCIO, SR.,
AND MARSHA MARIE FURFARO,
Petitioners,
v.
STATE OF WASHINGTON,
Respondent.
¢
On Petition For Writ Of Certiorari
To The Washington Supreme Court
¢
PETITION FOR A WRIT OF CERTIORARI
S
ROBERT S. MAHLER
Counsel of Record
BARBARA J. RHOADS-WEAVER
BULLIVANT HOUSER BAILEY PC
1601 Fifth Avenue, Suite 2300
Seattle, WA 98101
(206) 521-6435
RICHARD A. HANSEN
ALLEN, HANSEN & MAYBROWN
600 University Street, Suite 3020
Seattle, WA 98101
(206) 447-9681
IRWIN H. SCHWARTZ
LAW OFFICES OF IRWIN H. SCHWARTZ
710 Cherry Street
Seattle, WA 98104
(206) 623-5084
JOHN W. WOLFE
WOLFE LEINBACH
701 Fifth Avenue, Suite 6110
Seattle, WA 98104
(206) 389-6218
_-~—_-—-—
ose ee
COOCKLE LAW BRIEF PRINTING COO est) 22.) eet
OR CALL CODD Fe Pete2 342-2835)
07-339 SEP 10 2007
QUESTIONS PRESENTED
Does the decision of a state’s highest court to remand
a case for criminal prosecution constitute a final judgment
under 28 U.S.C. § 1257(a), as construed by Cox Broadcast-
ing Corp. v. Cohn, 420 U.S. 469 (1975), when the constitu-
tional question to be decided is whether the Petitioners
were deprived of due process because the laws proscribing
their conduct did not provide fair notice that criminal
prosecution was possible?
Whether the remedies provision of a state’s campaign
finance law, which is entitled “Civil Remedies and Sanc-
tions” and expressly provides only for civil remedies, but
also contains a general reference to “any other remedies
provided by law,” provides fair notice as required by the
Due Process Clause of the Fourteenth Amendment that
individuals acting in violation of the statute may be
subject to criminal prosecution and punishment?
li
PARTIES TO THE PROCEEDINGS BELOW
Petitioners John Gilbert Conte, Frank Francis Cola-
curcio, Jr., Frank Francis Colacurcio, Sr., and Marsha
Marie Furfaro were defendants in the Washington Supe-
rior Court for the County of King, and respondents before
the Washington Supreme Court. Respondent State of
Washington was plaintiff in the superior court and appel-
lant before the Washington Supreme Court.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............0csscescsssssssecssccossessees i
PARTIES TO THE PROCEEDINGS BELOW............... il
Re GIT ENCE sibeccesdesscnvestoviensieninvcsrsiveesovntcones ili
RE FF BC ois dctarsndnctnnrdntnsevineveoxasdavesives Vv
PETITION FOR WRIT OF CERTIORARI................00. 1
ON ad scasescttarsencvbnas 1
STATEMENT OF JURISDICTION ............cccc cece cece 1
CONSTITUTIONAL PROVISION INVOLVED............ 1
STATEMENT OF THE CASE .............cccccccsscsecssecescesseees 2
1. Specific state and municipal civil laws govern
campaign finance and disclosure ................c00000 3
2. Washington’s bait and switch........0...00.0ccceceeeeeeee 4
REASONS FOR GRANTING THE WRIT..........0..00..0.2. 7
1. This case is an opportunity for the Court to
clarify the fourth Cox exception’s “federal pol-
Be IU sisdetiva dacdactudsdccel elceneeccaiiceidded sitthteteaa
A. The “federal policy” criterion of the fourth
Cox category needs clarification................
B. Cox failed to clarify the scope of the “fed-
eral policy” criterion or to provide a stan-
Lg. Milani See Mec eee ome
C. The “federal policy” criterion has not been
clarified in the more than thirty years
since Cox was decided................cccccceesssssseeee
10
11
iv
TABLE OF CONTENTS - Continued
Page
D. Where the constitutional challenge goes
to the very right of the state to proceed
against an individual, federal policy
should permit review under Cox...........60006. 19
2. Does a statutory scheme that explicitly pro-
scribes certain conduct and subjects violators
to “civil remedies and sanctions,” provide fair
notice that violators may be subjected to
criminal prosecution and punishment? ............. 20
PRI INN bss ca sahalicrsvansssaviosicidesaieaivasiateiisucienaee 25
Vv
TABLE OF AUTHORITIES
Page
CASES
Abney v. United States, 431 U.S. 651 (1977)... cece eeeeee 19
Batson v. Kentucky, 476 U.S. 79 (1986).............c..cc000e 15, 16
Construction Laborers v. Curry, 371 U.S. 542
a aaa is slot cease oatuaisisiielbiatidin 11, 12, 14, 19
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
SEIU iis siililesitiaislgasliidcantsdnpunhesdtestasienicediiauiieredymansieaedl passim
Florida v. Thomas, 532 U.S. 774 (2001) ....... eee 14, 16
Flynt v. Ohio, 451 U.S. 619 (1981)............... 8, 14, 16, 17, 18
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46
SUI iii bik icnicieiinisdeinnuteinhtus- chick dedsaildadionzes dcamscancntadpewin 14,17
Healthscript, Inc. v. State of Indiana, 770 N.E.2d
I SEINE? «\ cocutbindedibisnssnusdimtinkettdninntseessiotoineiiind 22, 23, 24
Jefferson v. City of Tarrant, 522 U.S. 75 (1997) .........cceecee 8
Johnson v. California, 541 U.S. 428 (2004)........... 10, 14, 15
Jordan v. DeGeorge, 341 U.S. 223 (1951) ......ccececseeeeeeeeees 20
Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494
RSIS eee retin aaice tee manne 21
Kansas v. Marsh, 548 U.S. ___, 126 S. Ct. 2516, 165
REESE eh Ramone IED RN OE Ne ey ap 18
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .......... 21
Market Street R. Co. v. Railroad Comm’n of Cal.,
RES Pat ke dr aa ree ARE 8
McBoyle v. United States, 283 U.S. 25 (1931) ............. 20, 23
Mercantile National Bank v. Langdeau, 371 U.S.
nS eR ACE Ne San RSE Cee 12, 13, 14, 19
TABLE OF AUTHORITIES -— Continued
Page
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
A ST i iavininsinsnniininwliwigttplcinatah litt aee reais. 13, 14, 17
Nike, Inc. v. Kasky, 539 U.S. 654 (2003)............ 8, 15, 16, 17
Pennsylvania v. Ritchie, 480 U.S. 39 (1987)........00.....c0008-. 11
Rogers v. Tennessee, 532 U.S. 451 (2001)...........ccccccceseeccee 20
State v. Conte, et al., 159 Wash. 2d 797, 154 P.3d
BE I IE iitiiticdiicnaitta err re 1,6
State v. Gunwall, 106 Wash. 2d 54 (1986).............::cccceseeee 6
State v. Sullivan, 143 Wash. 2d 162 (2001) ........ccccccccceseeess 6
United States v. Bass, 404 U.S. 336 (1971) .0......cccccccecceeee 23
United States v. Lanier, 520 U.S. 259 (1997)..........cccccee. 20
United States v. Sisson, 399 U.S. 267 (1970).......ccececeeeeeee 11
CONSTITUTION
as a MI a passim
STATUTES
Sg ee a 1, 7,10
I ae 22
I a 22-23
Ind. Code § 35-43-7.1(a)(1) (Supp. 1997) ........ccceeee eee 22
Seattle Municipal Code (“SMC”) §§ 2.04.150 et seg.
REEL ES MON LIDS gO AN ERE ERT SCRAP Ee OE) 3
En I ra a +
a ee IND CIID i iiccccscianvavexcstcosdanmmrencreccccodedsaveds 3,4
vil
TABLE OF. . "'HORITIES -—- Continued
Page
ae ee ae EEE CIID ches chcvcnsernissuscancdscnsissvasvcncncstenets 3,4
ee Pe CET ois vets csnvtiicccesecncsstenciceiascetencanensstia 4
a ie CI I Bi iiveedvvnccsniiciccdsdectwevecedensevecscrsains 5
Wash. Rev. Code § 42.17.080 (1989) (amended 2006)......... 3
Wash. Rev. Code § 42.17.120 (1975) .........ecetcecscesscccceeseeeeees 3
Wash. Rev. Code § 42.17.390 (1993) (amended 2006)..... 4, 6
Wash. Rev. Code §§ 42.17.6100 et Seq. ........:ccccecseeesseeeeeeseenees 3
I I eB oba sctictcndinccd xadvndiiivseniatenvdncvbeuntenie 3
Ts Te Ns SF hcirspoccnticerttnkenisessntntcerocsersianroesers 5
MISCELLANEOUS
J. Hall, General Principles of Criminal Law 59 (2d
ee EE ihicssilbacaccacis pacvcnscridipiaiesiabddaabiipaibcladbvinedatinandvidbgsatesrons 20
J. Hall, Nulla Poena Sine Lege, 47 Yale L.J. 165
UT Pid aisLiinisssiileadeniacsincsbicies biseinasinaiegiiited “alka sniinidasth alee actagwicwasits a1, 20
T. Morrison, Fair Warning and the Retroactive
Judicial Expansion of Federal Criminal Statutes,
Pe ee ees hie PR Se ED ercorsitesinchcsntssendiaptrsevaasies 20, 21
H. Packer, The Limits of Criminal Sanction 79-80
PI daiciisasiit ascites intcadcsaonaleseaccdadacalchiresiaamenvnnenetbesieanisienes 20
PETITION FOR WRIT OF CERTIORARI
Petitioners John Gilbert Conte, Frank Francis Cola-
curico, Jr., Frank Francis Colacurico, Sr., and Marsha
Marie Furfaro (“Petitioners”) respectfully petition for a
writ of certiorari to the Washington Supreme Court in
State v. Conte, et al., No. 78995-9.
°
OPINIONS BELOW
The opinion of the Washington Supreme Court is
published at 159 Wash.2d 797, 154 P.3d 194 (Wash. 2007),
and is attached at App. at 1-28. The Washington Supreme
Court’s order denying Petitioners’ motion for reconsidera-
tion, filed June 11, 2007, is unpublished, and is attached
at App. at 58. The relevant trial court order is unpub-
lished, and is attached at App. at 47-49.
o
STATEMENT OF JURISDICTION
The opinion of the Washington Supreme Court was
filed March 15, 2007. App. 1. ‘he Washington Supreme
Court denied Petitioner’s motion for reconsideration on
June 11, 2007. App. at 58. This Court’s jurisdiction is
invoked under 28 U.S.C. § 1257(a), as construed by Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
¢
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in relevant part: “... nor shall any
2
State deprive any person of life, liberty, or property,
without due process of law... .”
#
STATEMENT OF THE CASE
This case comes to the Court from the Supreme Court
of Washington, which overturned a trial court decision
dismissing criminal charges against Petitioners. The trial
court’s dismissal was based on state law grounds. The
Washington Supreme Court not only reversed the trial
court on the state law grounds, but also rejected Petition-
ers’ federal constitutional argument that the statutes
proscribing their conduct, which expressly limited the
State to seeking civil remedies, failed to provide constitu-
tionally adequate notice that they could be subjected to
criminal prosecution and punishment. Reversing the trial
court’s order of dismissal, the State Supreme Court re-
manded the case for trial.
This case presents important issues of both federal
jurisdiction and constitutional law. It affords an opportu-
nity to provide guidance on the scope of the “federal policy”
criterion used to determine whether a judgment of a
state’s highest court remanding a case for trial, constitutes
a final judgment under Cox’s fourth exception. That
exception permits review of cases in which “a refusal
immediately to review the state-court decision might
seriously erode federal policy,” even though further pro-
ceedings have been ordered in the state’s lower courts.
Cox, 420 U.S. at 483.
This case also presents the question whether Wash-
ington’s novel theory of prosecution, which “criminal-
ized” conduct that was expressly proscribed by statutes
3
providing only for civil sanctions, runs afoul of the fair
notice doctrine enshrined in the Fourteenth Amendment’s
Due Process Clause.
1. Specific state and municipal civil laws govern
campaign finance and disclosure.
Both the State of Washington and City of Seattle
regulate individuals’ campaign contributions to candi-
dates for elective office. State statutes and local ordi-
nances limit the amount of campaign contributions
individuals may make to candidates, Wash. Rev. Code
§§ 42.17.610 et seq. (1993); Seattle Municipal Code
(“SMC”) § 2.04.370(D) (2002);' require candidates to
publicly disclose contributions received, Wash. Rev. Code
§ 42.17.080 (1989) (amended 2006); SMC §8§ 2.04.150
et seq. (1991); and prohibit acts by individuals designed
to conceal the original source of campaign contributions
and subvert public disclosure, including the act of
reimbursing others for making contributions to candi-
dates. Wash. Rev. Code §§ 42.17.120 (1975),’ and
42.17.780 (1995);° SMC § 2.04.290(A) (2002).’
’ E.g., SMC § 2.04.370(D) provides, in relevant part: “No candidate
for... member of the City Council .. . shall solicit or receive campaign
contributions of more than Six Hundred Dollars ($600) from any person
in an election cycle... .”
* Wash. Rev. Code § 42.17.120 provides, in relevant part: “No
contribution shall be made ... by one person through an agent, relative,
or other person in such a manner as to conceal the identity of the source
of the contribution or in an other manner so as to effect concealment.”
> Wash. Rev. Code § 42.17.780 provides, in relevant part: “A person
may not, directly or indirectly, reimburse another person for a contribu-
tion to a candidate... .”
* SMC § 2.04.2901\A) provides, in relevant part: “No contribution
shall be made and no expenditure shall be incurred, directly or
(Continued on following page)
4
The municipal campaign finance disclosure law
subjects violators to civil penalties and expressly excludes
the possibility of criminal prosecution for violations. SMC
§ 2.04.500(B) (1997) provides, in relevant part: “Whether
or not there is an administrative determination as pro-
vided in Section A, the violation or failure to comply with
the provisions of Sections 2.04.160 through 2.04.290
(regarding campaign reporting), for] Section 2.04.370
(regarding contribution limitations) ... shall constitute an
infraction, not subject to the Seattle Criminal Code.... ”
(emphasis added). The state campaign finance disclosure
law also sets forth civil remedies and sanctions to be
imposed for violations. Wash. Rev. Code § 42.17.390 (1993)
(amended 2006). Wash. Rev. Code § 42.17.390 is entitled
“Civil Remedies and Sanctions.” It provides, in relevant
part: “One or more of the following civil remedies and
sanctions may be imposed by court order in addition to
2. Washington’s bait and switch.
In 2005, Washington accused Petitioners of engaging
in “political money laundering” to improperly influence the
2003 Seattle City Council elections. For purposes of the
federal question this Court is asked to review, the factual
allegations against all four Petitioners are identical. The
state alleges the Petitioners reimbursed some individuals
in cash for contributions those individuals made to three
then Seattle City Council members seeking reelection in
2003. App. at 4. The state’s novel theory further asserts
indirectly, ... by one person through an agent, relative, or other person
in such a manner as to conceal the identification of the source of the
contribution or in any other manner so as to effect concealment.”
that the Petitioners’ alleged reimbursement of campaign
contributions, caused the three candidates to file false
campaign disclosure reports in violation of Wash. Rev.
Code § 40.16.030, which makes the offering of a false
instrument for filing a class C felony. App. at. 6. The false
instrument law is a general criminal -atute enacted in
1909. It provides:
Every person who shall knowingly procure or of-
fer any false or forged instrument to be filed, reg-
istered, or recorded in any public office, which
instrument, if genuine, might be filed, registered
or recorded in such office under any law of this
state or of the United States, is guilty of a class C
felony and shall be punished by imprisonment in
a state correctional facility for not more than five
years, or by a fine of not more than five thousand
dollars, or by both.
Wash. Rev. Code § 40.16.030. This general criminal statute
has never in the history of the state been used to impose
criminal penalties for conduct similar to Petitioners’
alleged acts. The Information charged Petitioners in
various counts based upon each Petitioner’s alleged
reimbursement of campaign contributions with causing
the various campaigns’ treasurers to file false campaign
disclosure reports. App. at 4. Each Petitioner pleaded not
guilty.
The trial court granted Petitioners’ motion to dismiss
on statutory interpretation grounds, ruling that the state’s
campaign finance disclosure laws (Wash. Rev. Code ch.
42.17), not the state’s false instrument law (Wash. Rev.
Code § 40.16.030), governed Petitioners’ alleged actions. As
the campaign finance disclosure law only provides for
imposition of civil remedies and sanctions, the trial court
6
dismissed the criminal charges. App. at 29-56. Because the
trial court granted Petitioner’s motion on statutory
grounds, it did not reach Petitioners’ due process argu-
ment. App. at 49. The state appealed, and the Washington
Supreme Court accepted certification of the case from the
Washington Court of Appeals. App. at 5.
On appeal, Petitioners argued that if the trial court
was reversed on statutory interpretation grounds, then the
Washington Supreme Court could and should uphold the
dismissal on the due process grounds raised but not
reached in the trial court. App. at 21. In its reply, the state
asked the Washington Supreme Court to “consider [Peti-
tioners’] due process claim only under federal constitu-
tional law” because the Petitioners did not provide the
analysis required by State v. Gunwall, 106 Wash. 2d 54
(1986), for consideration of an independent state constitu-
tional law claim. State v. Conte, et al., No. 78995-9, Appel-
lant’s Reply Brief at 12 (emphasis added) (citing State v.
Sullivan, 143 Wash. 2d 162, 180 n.73 (2001)).
The Washington Supreme Court reversed the trial
court. It first addressed the statutory issue and construed
the phrase “any other remedies provided by law,” in Wash.
Rev. Code § 42.17.390, to include criminal punishment.
App. at 13. Accordingly, it reversed the trial court’s order
of dismissal on this statutory interpretation ground.
Next the Washington Supreme Court turned to the
due process issue raised but not reached in the trial court.
The court held it would “only consider [the Petitioners’]
due process claim under federal constitutional law.” App.
at 21 (citing Sullivan, 143 Wash. 2d at 180 n.73). Consider-
ing the Petitioners’ due process claim under federal consti-
tutional analysis, App. at 21, the Washington Supreme
Court rejected Petitioners’ argument that they would be
deprived of their due process rights to fair notice if the
state was allowed to proceed with criminal prosecutions
against them based upon allegations they reimbursed
others for campaign contributions made to Seattle City
Counsel members seeking reelection. App. at 21-22. The
Washington Supreme Court reversed the trial court and
reinstated the charges against the Petitioners and re-
manded the case to the trial court for further proceedings.
App. at 22.
Petitioners seek review of the Washington Supreme
Court’s decision denying their claim that they will be
deprived of due process guaranteed by the Fourteenth
Amendment if the state is allowed to proceed with prose-
cutions where the state legislature failed to put them on
fair notice that their alleged actions subjected them to
criminal punishment.
REASONS FOR GRANTING THE WRIT
1. This case is an opportunity for the Court to
clarify the fourth Cox exception’s “federal pol-
icy” criterion.
Under 28 U.S.C. § 1257(a), this Court has certiorari
jurisdiction to review “[flinal judgments or decrees ren-
dered by the highest court of a State in which a decision
could be had ... where any title, right, privilege or immu-
nity is specially set up or claimed under the Constitution
. of ... the United States.” Generally, to be “final” for
purposes of this Court’s certiorari jurisdiction, the state-
court judgment must be “‘an effective determination of the
litigation and not merely interlocutory or intermediate
8
steps therein.’” Jefferson v. City of Tarrant, 522 U.S. 75,
81 (1997) (quoting Market Street R. Co. v. Railroad
Comm’n of Cal., 324 U.S. 548, 551 (1945)). “Applied in the
context of a criminal prosecution, finality is normally
defined by the imposition of the sentence.” Flynt v. Ohio,
451 U.S. 619, 620 (1981).
However, this Court “has interpreted the [jurisdic-
tional] statute’s phrase ‘final judgment’ to refer, in certain
circumstances, to a state court’s final determination of a
federal issue, even if the determination of that issue
occurs in the midst of ongoing litigation.” Nike, Inc. v.
Kasky, 539 U.S. 654, 671 (2003) (Bryer, J., dissenting).
This Court has treated four categories of state-court
rulings, in which further proceedings were to take place in
the state courts, as falling within the jurisdictional stat-
ute’s meaning of “final judgment or decree.” The four
categories are outlined in Cox, 420 U.S. at 477-483. Peti-
tioners invoke this Court’s jurisdiction under Cox’s fourth
category of cases. Jd. at 482-483.
The cases that fall within Cox’s fourth exception to the
general finality rule were described as follows:
[T]hose situations where [1] the federal issue has
been finally decided in the state courts with fur-
ther proceedings pending in which [2] the party
seeking review here might prevail on the merits
on nonfederal grounds, thus rendering unneces-
sary review of the federal issue by this Court,
and [3] where reversal of the state court on the
federal issue would be preclusive of any further
litigation on the relevant cause of action rather
than merely controlling the nature and character
of, or determining the admissibility of evidence
in, the state proceedings still to come. In these
circumstances, [4] if a refusal immediately to
9
review the state-court decision might seriously
erode federal policy, the Court has entertained
and decided the federal issue, which itself has
been finally decided by the state courts for pur-
poses of the state litigation. Jd. at 482-483.
The Washington Supreme Court’s opinion below meets
the first three criteria for application of Cox’s fourth
category. The state court “finally decided” the federal issue
by rejecting Petitioners’ argument that the campaign
finance disclosure law’s general reference to other laws did
not provide them with fair notice that their alleged con-
duct would subject them to criminal liability. App. at 21-
22. According to the Washington Supreme Court, nothing
remains to be decided with respect to whether the state’s
campaign finance disclosure law is repugnant to Petition-
ers’ due process rights under the Fourteenth Amendment.
Additionally, “the part[ies] seeking review here,” Petition-
ers, “might prevail on the merits on nonfederal grounds.”
Cox, 420 U.S. at 482. Petitioners deny reimbursing others
for contributions made to candidates for Seattle City
Council. If the state is unable to prove the alleged conduct
beyond a reasonable doubt at trial, Petitioners will “pre-
vail on the merits on nonfederal grounds.” Jd. Finally,
“reversal of the state court on the federal issue would be
preclusive of any further litigation on the relevant cause of
action.” Jd. at 482-483. If this Court held the state cam-
paign finance disclosure law failed to provide Petitioners
with fair notice that their alleged conduct could subject
them to criminal liability, and accordingly reversed the
Washington Supreme Court’s decision on federal due
process grounds, the state would be precluded from pursu-
ing criminal prosecution in further proceedings.
10
A. The “federal policy” criterion of the fourth
Cox category needs clarification.
At issue is whether there is a federal policy that may
be eroded by delaying review of the state court opinion
below. However, to answer this question the scope of the
“federal policy” criterion needs to be clarified.
In Johnson v. California, 541 U.S. 428 (2004) (per
curiam), the Court directed the bar to “assure themselves
that the decision for which review is sought is indeed a
“(flinal judgmen|[t]” under § 1257.” Jd. at 432 (holding the
fourth Cox category does not apply and dismissing the case
for want of jurisdiction). Yet, the Court has not articulated
the scope of the federal policy criterion, leaving counsel
without necessary guidance to determine whether a
particular decision is “indeed a “[flinal judgment/t]” under
§ 1257.” Id. Nor has the Court set forth a standard that
counsel could apply to determine whether the federal
policy criterion is met. Thus, counsel are left without the
tools necessary to comply with the Court’s direction to
“assure themselves” that the decisions for which they seek
review are final judgments under § 1257. Instead, counsel
must speculate which federal policies a majority of the
Justices might be interested in protecting by immediate
review, to invoke the Court’s jurisdiction under § 1257, as
construed by Cox.
Cox did not articulate with clarity the scope of its
federal policy criterion, and it did not set forth a standard
* While the vote of only four Justices is necessary for the Court to
exercise its discretion to entertain a petition for certiorari, a vote of a
majority of Justices is necessary to find jurisdiction or the writ of
certiorari will be dismissed as improvidently granted.
11
to be applied to determine in the future which federal
policies deserve the Court’s immediate review. And the
opinions in which jurisdiction has depended upon applica-
tion of Cox’s fourth exception, whether by the Court as a
whole or by individual Justices, in the over three decades
since Cox was decided, have not clarified the category of
federal policies that deserve the Court’s immediate review.
Nor have the opinions that have followed Cox articulated a
standard to be applied to determine whether a particular
federal policy at issue warrants invocation of the Court’s
jurisdiction for immediate review.
While the Court has recognized the importance of
clarity in matters of jurisdiction, see United States v.
Sisson, 399 U.S. 267, 307 (1970), and the waste of great
energy by the courts and the parties “not on the merits of
dispute settlement, but on simply deciding whether a
court has the power to hear a case,” id., in the absence of
such clarity, the efficiency justification for finality, see
Pennsylvania v. Ritchie, 480 U.S. 39, 49, n.7 (1987), will
continue to be undermined until the Court gives the bar
guidance as to the scope of the federal policy criterion
under the fourth Cor exception.
B. Cox failed to clarify the scope of the “federal
policy” criterion or to provide a standard to
be applied.
As then Associate Justice Rehnquist noted in his
dissent, Cox’s fourth category is a “virtually formless
exception to the finality requirement.” Cox, 420 U.S. at 505
(Rehnquist, J., dissenting). Cox discussed three prior cases
as examples of the cases that fall within its fourth cate-
gory. The first case Cox discussed is Construction Laborers
v. Curry, 371 U.S. 542 (1963). Cox, 420 U.S. at 483. In
12
Curry, the state courts rejected labor union claims that the
National Labor Relations Board had exclusive jurisdiction
over the controversy and temporarily enjoined the labor
union’s picketing. The Court recognized a federal policy,
based upon federal labor statutes, that gave the National
Labor Relations Board, not state courts, jurisdiction over
the controversy. Curry, 371 U.S. at 550. The Court was
also convinced that the case was concluded in the state
courts for all practical purposes. Given the practical
posture of the case and to protect the recognized federal
labor policy, the Court took jurisdiction. No explanation
was given as to how the federal labor policy would be
eroded if review were delayed until after the conclusion of
all state court proceedings. Rather, it appears the mere
violation of the federal labor statute (state court assertion
of jurisdiction over a controversy in which exclusive
jurisdiction rested with the National Labor Relations
Board) was sufficient erosion to warrant the Court’s
immediate review.
The second case Cox discussed is Mercantile National
Bank v. Langdeau, 371 U.S. 555 (1963). Cox, 420 U.S. at
483-484. In Langdeau, two national banks asserted a
federal venue statute immunized them from suit on claims
of conspiracy to defraud an insurance company in the
courts of the county in which they were sued. In asserting
jurisdiction, the Court recognized it would serve the policy
of the federal venue statute to immediately decide the
issue of which state courts the banks could be sued instead
of delaying such a decision until the conclusion of the state
court proceedings. Langdeau, 371 U.S. at 558. Judicial
efficiency and fairness principles appear to provide the
underlying support for the immediate need to protect the
policy of the federal venue statute. Specifically, the Court
13
noted the undesirability of subjecting the two banks “to
long and complex litigation which may be all for naught”
by postponing review. Id.
The third case discussed by the Cox majority opinion
as an example of its fourth category is Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Cox, 420
U.S. at 484. In Tornillo, a newspaper claimed the First
and Fourteenth Amendments immunized it from suit for
damages by a candidate for public office based on the
newspaper’s refusal to print the candidate’s reply to the
paper’s editorial critical of him, which was alleged to be in
violation of a state “right to reply” statute. In its jurisdic-
tional holding, the Court noted it would be “intolerable to
leave unanswered ... an important question of the free-
dom of the press under the First Amendment.” Tornillo,
418 U.S. at 247, n.6. There is little discussion of how the
Court reached its jurisdictional holding. However, the
contention of both parties that the Court had jurisdiction
coupled with their joint claim that the exercise of First
Amendment rights would be restricted until the Court’s
review along with the possibility that review could be
rendered unnecessary by further state court proceedings
appears to have persuaded the Court that delaying review
would erode the federal policy underlying the First
Amendment.
In Cox, the Court was asked to review a state supreme
court decision that a state law prohibiting the publication
of rape victims’ names and identities was a legitimate
limitation on the First Amendment’s guarantee of freedom
of the press. Although the state supreme court had re-
manded the case for further proceedings in the state trial
court, the Court held the state court decision was final for
purposes of jurisdiction. In support of its jurisdictional
14
holding, the Court noted that if the state court had “erro-
neously upheld the statute, there should be no trial at all,”
Cox, 420 U.S. at 485, and that delaying review would leave
the press in the state to operate “in the shadow of the civil
and criminal sanctions of a rule of law and a statute the
constitutionality of which is in serious doubt,” id. at 486.
There is no common characteristic shared by the
federal policies at issue in Curry, Langdeau, Tornillo, and
Cox other than the Court’s determination that immediate
review was warranted. In Curry and Langdeau, federal
statutes provided the basis for the federal policies to be
protected from erosion by delayed review. In Tornillo and
Cox, the United States Constitution, in particular the
First Amendment thereto, provided the basis for the
federal policies that warranted immediate review. How-
ever, the fact that a federal policy is enshrined in the
Constitution or codified by federal statute does not mean
the Court will determine it is necessarily worthy of protec-
tion by immediate review. See, e.g., Fort Wayne Books, Inc.
v. Indiana, 489 U.S. 46, 56 (1989) (citing Flynt v. Ohio, 451
U.S. 619 (1981) for the proposition that the federal policy
embodied in the Equal Protection Clause does not deserve
protection from erosion similar to the federal policy em-
bodied in the First Amendment).
C. The “federal policy” criterion has not been
clarified in the more than thirty years
since Cox was decided.
The lack of clarity concerning the scope of Cox’s fourth
exception has resulted in a waste of the Court’s energy and
that of the parties on more than one occasion. Worse, the
cases, in which certiorari was initially granted but the
15
case was ultimately dismissed for want of jurisdiction, do
not clarify the scope of the exception.
For example, in Johnson v. California, 541 U.S. 428
(2004) (per curiam), although certiorari was _ initially
granted, the Court ultimately dismissed the case for want
of jurisdiction following argument on the merits and
supplemental briefing on the jurisdictional issue. In
Johnson, the petitioner sought review of a state supreme
court’s decision rejecting his Batson claim and reinstating
his conviction. The state supreme court had also remanded
the case to the state intermediate appellate court to
address the petitioner’s evidentiary claims. The petitioner
argued the case fit within Cox’s fourth exception. However,
the Court held the fourth exception inapplicable because
“petitioner can make no convincing claim of erosion of
federal policy that is not common to all decisions rejecting
a defendant’s Batson claim.” Jd. at 430 (citing Florida v.
Thomas, 532 U.S. 774, 780 (2001)).
There is no further discussion of the scope of Cox’s
fourth category of cases other than the implicit suggestion
that the scope of the “federal policy” criterion might be
limited to require the erosion that might occur by delay be
unique to the petitioner.’ Because none of the other cases
the Court has recognized as falling within Cox’s fourth
* Batson v. Kentucky, 476 U.S. 79 (1986).
’ Nor did Chief Justice Rehnquist provide additional discussion of
the scope of the fourth Cox category in his opinion for a unanimous
Court in Florida v. Thomas. In contrast to the more lengthy discussion
of each of the other Cox categories, Thomas, 532 U.S. at 777-780, the
discussion of the fourth Cox category merely notes that “the State can
make no claim of serious erosion of federal policy that is not common to
all run-of-the-mill decisions suppressing evidence in criminal trials.” Jd
at 780.
16
exception involved potential erosion of a federal policy
unique to the petitioner, the Court’s jurisdictional holding
in Johnson may rest more on the fact that it has viewed
the federal policies enshrined in the Equal Protection
Clause as undeserving of protection by immediate review.®
Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (per curiam),
is another example of a case in which the writ was “dis-
missed as improvidently granted.” Id. at 655. In Nike, a
state supreme court had reversed a state trial court’s
dismissal of the respondent’s complaint, which had been
affirmed by an intermediate state appellate court, and
remanded for further proceedings. The respondent had
sued Nike for unfair and deceptive practices under the
state’s laws based upon the company’s public statements
concerning working conditions under which Nike’s prod-
ucts are made. The Court had granted certiorari to decide
whether a corporation participating in a public debate may
be subjected to liability for factual inaccuracies and
whether the First Amendment protects such commercial
speech. The Court provided no reasoning for its decision to
dismiss the writ.
Justice Stevens articulated three possible reasons for
the dismissal in his concurring opinion, in which he was
" This basis does not explain the Court’s holding regarding the
fourth Cox category in Thomas. However, another justification may
account for the limited discussion of the fourth Cox category and the
Court's jurisdictional holding in Thomas: the underlying concern that
asserting jurisdiction to immediately decide the Batson issue might
lead to piecemeal review and the need for later review of a Chimel
issue. See Thomas, 532 U.S. at 780; see also Nike, Inc. v. Kasky, 539
U.S. 654, 660 (2003) (Stevens, J., concurring) (citing Flynt v Ohio, 451
U.S. 619, 621 (1981) (per curiam) (“no probability of piecemeal review
with respect to federal issues”)).
17
joined by Justice Ginsberg: the state supreme court
decision was not “final,” the parties lacked standing to
invoke the Court’s jurisdiction, and the lack of a developed
record below, which might aid the Court, militated judicial
restraint. Jd. at 656-665.
Three Justices dissented. Justice Kennedy did not
provide a reason for his dissent. Justice Breyer in his
dissenting opinion, which was joined by Justice O’Connor,
reasoned the state court decision on the First Amendment
issue met the criteria for a final decision under Cox’s
fourth category. Jd. at 681-683. In the dissenting Justices’
view, the federal policy in favor of free speech would be
seriously eroded absent immediate review because the
state court’s decision would “chill” the exercise of free
speech rights by corporations doing business in the state.
Id. at 682.
Unlike Flynt, where the issue presented was viewed
by a majority of the court as whether a state court decision
disregarded the Fourteenth Amendment’s equal protection
guarantee, there is no doubt that the issue presented in
Nike is whether a state court decision disregards the First
Amendment’s freedom of speech guarantee. Yet, without
explanation, the Court reaches the opposite jurisdictional
holding from Tornillo and Cox. Thus, even the scope of the
First Amendment federal policy that warrants the protec-
tion of immediate review is unclear. The conflicting results
suggests the Court views the freedorn of the press federal
policy as demanding immediate review whereas the
freedom of speech federal policy is on par with the equal
protection federal policy.
However, the above suggestion does not hold true for
the Court's jurisdictional holding in Fort Wayne Books, Inc.
18
v. Indiana, 489 U.S. 46 (1989). There, the Court recog-
nized the broad federal policy of adjudicating the proper
scope of the First Amendment’s protections fell within the
scope of Cox’s fourth exception.
In Flynt v. Ohio, 451 U.S. 619 (1981) (per curiam), a
divided court dismissed the writ of certiorari for want of
jurisdiction. Magazine publishers sought review of a state
supreme court decision rejecting their claim that obscenity
charges against them for publishing a political cartoon
should be dismissed on the ground that they were singled
out for prosecution in violation of the Equal Protection
Clause because of their exercise of First Amendment
rights. The Court found no “identifiable federal statutory
or constitutional policies which would have been under-
mined” by delayed review. Id. at 622. The view of the four
dissenting Justices that violations of the Constitution
erode federal policy within the meaning of the fourth Cox
exception, id. at 623-624, finds support in Justice Scalia’s
view that the Court’s “solemn responsibility” is to “ensure
that when courts speak in the name of the Federal Consti-
tution, they disregard none of its guarantees.” Kansas uv.
Marsh, 548 U.S. __, 126 S. Ct. 2516, 2531, 165 L. Ed. 2d
429 (2006) (Scalia, J., concurring).
In the absence of clear guidance from the Court as to
the scope of the federal policy criterion of Cox’s fourth
exception, energy of the Court and parties will continue to
be wasted. This case provides the Court an opportunity to
articulate a definitive category of federal policies that will
be eroded by delayed review. Such policies are those in
which the principle aim is against allowing further state
court proceedings.
19
D. Where the constitutional challenge goes
to the very right of the state to proceed
against an individual, federal policy should
permit review under Cox.
The Court has already implicitly recognized that
federal policies aimed at prohibiting state court proceed-
ings will be eroded by delayed review, and therefore, fall
under Cox’s fourth exception. In Curry, the federal labor
statute vested exclusive jurisdiction over the controversy
in the National Labor Relations Board. Without jurisdic-
tion, further state court proceedings were prohibited.
Similarly, in Langdeau, the issue was whether the federal
venue statute prohibited further state court proceedings in
the county in which the banks were sued. In these cases,
the state court’s authority to continue with further pro-
ceedings was contested based upon a federal policy.
The federal policy that would be eroded here if review
is not granted is one the Court can easily articulate and
embrace as a bright line rule to guide application of the
fourth Cox exception. It is a policy the Court is familiar
with and has applied in other contexts. The Petitioners’
here are “contesting the very authority of the [state] to
hale [them] into court to face trial on the charge[s] against
{them].” Abney v. United States, 431 U.S. 651, 659-660
(1977) (addressing the finality of a pretrial order denying a
motion to dismiss an indictment on double jeopardy
grounds). They allege that Washington’s campaign finance
disclosure law fails to provide fair notice, as required by
the Fourteenth Amendment guarantee of due process, that
their alleged conduct subjects them to criminal prosecu-
tion and punishment. Petitioners urge the Court to accept
certiorart to determine whether a federal constitutional
challenge that goes to the very authority of the state to
20
hale them into court, is one that warrants immediate
review under Cox. In these circumstances, failure to
review a constitutional challenge would seriously erode a
federal policy of needlessly subjecting an individual to the
opprobrium of criminal prosecution. See id.
2. Does a statutory scheme that explicitly pro-
| scribes certain conduct and subjects violators
to “civil remedies and sanctions,” provide fair
notice that violators may be subjected to
criminal prosecution and punishment?
This Court has repeatedly stated “statutes which fail
to give due notice that an act has been made criminal
before it is done are unconstitutional deprivations of due
process of law.” Jordan v. DeGeorge, 341 U.S. 223, 230
(1951). The Due Process Clause’s “fair warning require-
ment,” United States v. Lanier, 520 U.S. 259, 265 (1997)
(quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)),
stems from the fundamental principle expressed by the
maxim nulla poena sine lege. Rogers v. Tennessee, 532 U.S.
451, 470 (2001) (Scalia, J., dissenting). Nulla poena sine
lege, which means no punishment without a law authoriz-
ing it, dates back to the ancient Greeks and is described as
“one of the most ‘widely held value-judgment|[s] in the
entire history of human thought.’” Jd. at 467-468 (quoting
J. Hall, General Principles of Criminal Law 59 (2d ed.
1960)).
The maxim is known as the “principle of legality,”
which has been described as “the first principle” of the
criminal law. T. Morrison, Fair Warning and the Retroac-
tive Judicial Expansion of Federal Criminal Statutes, 74
S. Cal. L. Rev. 455, 462, n.28 (2001) (quoting H. Packer,
The Limits of Criminal Sanction 79-80 (1968)): see also
21
J. Hall, Nulla Poena Sine Lege, 47 Yale L.J. 165, 184
(1937) (“it must be remembered that in the last analysis
nulla poena represents the most cherished of all values
involved in the administration of the criminal law.”). This
first principle and most cherished value of criminal law
rests upon a simple premise: “it is unjust that what was
legal when done should be subsequently held criminal,
that what was punishable by a minor sanction when
committed should later be punished more severely.” Hall,
47 Yale L.J. at 171.
The fundamental principle that gave birth to the fair
warning requirement is related to the “timeless and
universal” principle that the legal effect of conduct should
be assessed under the law as it existed at the time the
conduct took place, Kaiser Aluminum & Chem. Corp. uv.
Bonyjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring),
which “is deeply rooted in our jurisprudence, and embodies
a legal doctrine centuries older than our Republic.” Land-
graf v. USI Film Prods., 511 U.S. 244, 265 (1994).
These two principles similarly serve common interests
and provide guarantees against governmental abuses.
Both assure that criminal laws give fair warning of their
effect, and both further the notion of fundamental justice
that governments must abide by the rules of law they
establish in order to deprive a person of life or liberty.
Morrison, 74 S. Cal. L. Rev. at 463-464. Without the law
providing notice of the conduct the legislature has made
criminal or the law giving notice of the penalty to be
imposed for conduct that has been made criminal, the
government is not authorized to subject individuals to
criminal lability for alleged violations of the law.
22
The first principle and most cherished value of crimi-
nal law is not limited to the definition of crimes at the
time conduct took place, but also extends to and encom-
passes the penalty to be imposed for engaging in prohib-
ited acts. By its plain language, the maxim prohibits
penalties not authorized by law. The underlying premise
acknowledges the unjust result of increasing the severity
of penalty for specific conduct after the conduct has taken
place. Hall, 47 Yale L.J. at 171 (“it is unjust ... that what
was punishable by a minor sanction when committed
should later be punished more severely.”).
But the Court has not answered the important ques-
tion whether the Due Process clause’s constitutional
guarantee of fair notice extends and encompasses the
punishment available for engaging in prohibited acts. This
case invites the Court to determine how this fundamental
principle is to be applied where the state’s theory of
prosecution for violations of a general criminal law rests
upon alleged conduct that is in violation of specific civil
laws. Specifically, does a general reference to any other
remedies in the specific civil statute give fair notice that
conduct in violation of the civil statue may subject the
individual to criminal punishment?
In Healthscript, Inc. v. State of Indiana, 770 N.E.2d
810 (Ind. 2002) the Indiana Supreme Court held a general
reference to a particular article of the state code was
insufficient notice to prosecute the defendant for alleged
acts in violation of the cross-referenced penal statute. In
Healthscript, the state charged defendant with Medicaid
fraud under Ind. Code § 35-43-7.1(a)(1) (Supp. 1997),
which makes it a class D felony to knowingly or intention-
ally file a Medicaid claim in violation of Indiana Code § 12-
15. The state’s theory was that the defendant violated Ind.
23
Code § 12-15-21-1 by allegedly filing Medicaid claims for
more than its usual and customary charges, which the
state argued was a class D felony under the penal statute.
Healthscript’s motion to dismiss, which argued the general
cross reference to Medicaid statutes deprived defendant of
due process because it failed to give fair warning that the
specific alleged conduct was criminal, was denied. On
appeal, the Indiana Supreme Court reversed the trial
court and ordered the trial court to dismiss the informa-
tion against Healthscript.
The Indiana court reasoned that while the state’s
theory was plausible because of the specific cross reference
to the article of the state code concerning Medicaid, such
reference was insufficient to meet due process require-
ments because it failed to give “fair warning ... in lan-
guage that the common world will understand, of what the
law intends to do if a certain line is passed.” Healthscript,
770 N.E.2d at 816 (quoting United States v. Bass, 404 U.S.
336, 348 (1971) (quoting McBoyle v. United States, 283
U.S. 25, 27 (1931))).
Like Healthscript, this case involves a circumstance
where the state’s theory of prosecution is based upon
alleged conduct in violation of a statute other than the
statute charged. And Petitioners, like the defendant in
Healthscript, moved to dismiss the information against
them arguing they were deprived of fair warning that the
specific alleged conduct was criminal. Despite a specific
cross reference to a particular article of the Indiana Code,
the Indiana high court held such reference was insuffi-
cient. In contrast, the Washington Supreme Court in this
case rejected Petitioners’ argument that a general refer-
ence to “any other remedies provided by law” deprived
24
them of fair notice that their specific alleged conduct
subjected them to criminal punishment.
The Washington campaign finance disclosure law at
issue here provides less warning that Petitioners’ specific
alleged conduct is criminal than the Indiana Medicaid law
that was at issue in Healthscript. The penal statute under
which Healthscript was charged specifically referenced the
article of the Indiana Code that prohibited Healthscript’s
alleged specific conduct. Here, the penal statute under
which Petitioners were charged makes no reference to the
statute that specifically prohibits Petitioners’ alleged
conduct (i.e., remmbursing others for campaign contribu-
tions they made), and the cross reference in the campaign
finance disclosure statute at issue is more vast and less
specific than the cross reference at issue in Healthscript.
Accordingly, Petitioners here received less notice that their
specific alleged conduct was criminal than the notice
provided to the defendant in Healthscript. Yet, Washing-
ton’s highest court found the notice comported with due
process requirements, while Indiana’s highest court
reached the opposite conclusion in Healthscript.
The Indiana court reasoned that fair notice is not
provided where one must wade through an entire article in
the state’s code on a specific subject and then through the
agency regulations on the subject to determine what
conduct a specific statute proscribes as criminal. In con-
trast, the effect of the Washington court’s holding is that
one must wade, not only through one article of a state’s
code, but rather the state’s entire criminal code to deter-
mine what conduct a specific statute makes criminal.
This case provides an opportunity for the Court to
resolve the conflicting opinions of state high courts and set
25
forth the standard applicable for determining whether fair
notice that specific conduct may subject one to criminal
punishment, as required by the Fourteenth Amendment,
has been provided by a remedial statute’s general refer-
ence to other remedies provided by law.
°
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
ROBERT S. MAHLER
Counsel of Record
BARBARA J. RHOADS-WEAVER
BULLIVANT HOUSER BAILEY PC
1601 Fifth Avenue, Suite 2300
Seattle, WA 98101
(206) 521-6435
RICHARD A. HANSEN
ALLEN, HANSEN & MAYBROWN
600 University Street, Suite 3020
Seattle, WA 98101
(206) 447-9681
IRWIN H. SCHWARTZ
LAW OFFICES OF IRWIN H. SCHWARTZ
710 Cherry Street
Seattle, WA 98104
(206) 623-5084
JOHN W. WOLFE
WOLFE LEINBACH
701 Fifth Avenue, Suite 6110
Seattle, WA 98104
(206) 389-6218
App. l
IN THE SUPREME COURT OF THE
STATE OF WASHINGTON
STATE OF WASHINGTON,
Appellant, No. 78995-9
V.
)
)
)
)
JOHN GILBERT CONTE; ) En Banc
FRANK FRANCIS COLA- )
CURCIO, JR.; FRANK FRANCIS ?
COLACURCIO, SR.; and .
)
)
MARSHA MARIE FURFARO,
Respondents.
Filed March 15, 2007
MADSEN, J. — The defendants, John Conte, Frank
Colacurcio, Jr., Frank Colacurcio, Sr., and Marsha Furfaro,
were charged with nine counts of violating RCW 40.16.030.
The charges relate to campaign disclosure reports filed by
three Seattle City Council members during their 2003
reelection campaigns. The State alleges that contributions
made by some individuals to these council members were
reimbursed in cash by the defendants. The State further
alleges that as a result of the defendants’ scheme, the
candidates filed false campaign disclosure reports because
they did not identify the true source of the contributions.
The trial court granted the defendants’ motion for
dismissal of the charges, holding, as a matter of law, that
the public disclosure act (PDA), chapter 42.17 RCW,
provides the exclusive penalties for the conduct alleged by
the State.
The State maintains that chapter 42.17 RCW does not
bar prosecution of the defendants under RCW 40.16.030.
We agree. Accordingly, we reverse the trial court, reinstate
App. 2
the charges against the defendants, and remand for
further proceedings.
FACTS
On July 12, 2005, the State filed an information
charging the defendants with one count each of conspiracy
to offer a false instrument for filing or record, in violation
of RCW 40.16.030 and RCW 9A.28.040(1).’ The informa-
tion also charges each of the defendants with at least one
count of knowingly procuring, offering, or causing an
innocent person to offer a false instrument for filing or
record in violation of RCW 40.16.030 and RCW 9A.08.020(1)
and (2)(a) (a total of eight additional counts each applying
to one or two of the defendants).”
According to the certification for determination of
probable cause, which was prepared by an investigator for
the Seattle Ethics and Elections Commission:
The Colacurcio family owns and operates
Rick’s, an adult entertainment establishment
commonly called a strip club ... [and] sought a
rezone to obtain more parking for Rick’s for a
' RCW 9A.28.040(1) provides that “[a) person is guilty of criminal
conspiracy when, with intent that conduct constituting a crime be
performed, he or she agrees with one or more persons to engage in or
cause the performance of such conduct, and any one of them takes a
substantial step in pursuance of such agreement.”
* RCW 9A.08.020(1) provides that “[a] person is guilty of a crime if
it is committed by the conduct of another person for which he is legally
accountable.” RCW 9A.08.020(2Xa) provides that “[a] person is legally
accountable for the conduct of another person when ... [a]cting with
the kind of culpability that is sufficient for the commission of the crime,
he causes an innocent or irresponsible person to engage in such
conduct.”
App. 3
number of years. In the 1980’s additional parking
was created on property owned by Rick’s without
city approval. Rick’s was given the option of re-
moving the parking lot or paying a fine, and
chose to pay the fine. Rick’s then initiated efforts
to get the parking approved for use by obtaining
a rezone. Attempts to get the rezone failed in
1988 and 1998.
Rick’s applied again in September 2002. The
rezone was opposed by the City [of Seattle] and
denied by a hearing examiner. Rick’s appealed, so
the rezone issue was set to be decided by the City
Council, acting as a quasi-judicial body. When is-
sues are to be resolved by the City Council acting
in a quasi-judicial capacity, City Council rules
prohibit council members from undisclosed ex-
parte contact with litigants or their agents. On
July 7, 2003, the City Council approved the re-
zone 5-4.
In the fall of 2003 the Seattle Ethics and
Elections Commission ... fined council members
Jim Compton and Heidi Wills for violation of
[Seattle Municipal Code (SMC)] 4.16.070(1)(a)
when they voted on the rezone after undisclosed
ex-parte contacts with representatives of Rick’s.
Judy Nicastro was fined $200 for violating SMC
4.16.070(3)(a) because she accepted a lunch paid
for by Albert D. Rosellini, ... a close personal
friend of the Colacurcio family ... [djuring
[which he] lobbied Nicastro to grant the zoning
change.... Wills was fined $1,500 for voting
with impaired judgment, because she had toured
the Rick’s rezone site with Albert Rosellini.. . af-
ter she had been notified the rezone issue was
quasi-judicial.
App. 4
News reports ... mentioned that Compton,
Nicastro, and Wills had received a total of about
$36,000 from “people connected to Frank Cola-
curcio, Jr.” (Seattle Times July 19, 2003 article.)
... These contributions were received by the
candidates’ reelection committees before the re-
zone was approved. After these contributions
came to light, each of the three candidates re-
funded all of the contributions.
Clerk’s Papers (CP) at 6-7. The certification for determina-
tion of probable cause explains that in November 2003 the
commission learned two contributors to Nicastro’s cam-
paign had been reimbursed for their contributions, and
then “[iJnvestigators began looking at the bank records of
other persons who contributed to Compton, Nicastro, or
Wills and who were known to have ties to the Colacurcios.”
CP at 9. The investigators identified 14 persons whose
contributions were reimbursed by the defendants. The
certification also explains some of the campaign contribu-
tion reporting requirements of the SMC and the PDA. The
certification states that the defendants caused the council
members’ election campaign committees to file false
campaign finance reports with the Seattle City Clerk, the
Washington State Public Disclosure Commission, or both,
pursuant to the SMC and the PDA.
Following arraignment, each of the defendants pled
not guilty to the charges against him or her. On January
20, 2006, the defendants filed motions to dismiss on
various grounds. Only the first motion is at issue. In this
motion the defendants argued that the civil enforcement
provisions of chapter 42.17 RCW “preempt” the general
criminal penalties in RCW 40.16.030. They also argued
that criminal prosecution under RCW 40.16.030 would
violate their due process rights. Judge Michael J. Fox
App. 5
granted the motion. The State appealed. On July 28, 2006,
we accepted the Court of Appeals certification of the case.
ANALYSIS
A trial court’s pretrial dismissal of criminal charges
pursuant to a Knapstad motion’ is subject to de novo
review. State v. Freigang, 115 Wn. App. 496, 501, 61 P.3d
343 (2002). Similarly, because the issue whether chapter
42.17 RCW precludes prosecution under RCW 40.16.030 is
an issue of statutory construction, appellate review is de
novo. In re Custody of Shields, 157 Wn.2d 126, 140, ¥ 35,
136 P.3d 117 (2006). Our goal is to determine whether the
legislature intended that the penalty provisions of chapter
42.17 RCW bar prosecution under RCW 40.16.030. See id.
The State maintains that the trial court erred in
dismissing the information, arguing that the “general-
specific” rule applied by the trial court is not applicable
under the circumstances. Under this rule, if “concurrent
general and special acts are in pari materia and cannot be
harmonized, the latter will prevail, unless it appears that
the legislature intended to make the general act control-
ling.” Wark v. Wash. Nat'l Guard, 87 Wn.2d 864, 867, 557
P.2d 844 (1976); see also In re Estate of Kerr, 134 Wn.2d
328, 343, 949 P.2d 810 (1998) (“[a] more specific statute
supersedes a general statute only if the two statutes
pertain to the same subject matter and conflict to the
extent they cannot be harmonized”). State v. Presba, 131
Wn. App. 47, 52, 49, 126 P.3d 1280 (2005) (“when a
specific statute punishes the same conduct punished under
a general statute, they are concurrent statutes and the
* State v. Knapstad, 107 Wn.2d 346, 729 P. 2d 48 (1986).
App. 6
State must charge only under the specific statute”); Port
Townsend Sch. Dist. No. 50 v. Brouillet, 21 Wn. App. 646,
655, 587 P.2d 555 (1978) (“[iJt is a fundamental rule of
statutory construction that where a general statute and a
subsequent special statute relate to the same subject
matter, the provisions of the special statute will prevail
unless it appears that the legislature intended expressly to
make the general statute controlling”).
RCW 40.16.030, which the defendants argue is the
superseded general statute, enacted in 1909, provides:
Every person who shall knowingly procure or of-
fer any false or forged instrument to be filed, reg-
istered, or recorded in any public office, which
instrument, if genuine, might be filed, registered
or recorded in such office under any law of this
state or of the United States, is guilty of a class C
felony and" shall be punished by imprisonment
in a state correctional facility for not more than
five years, or by a fine of not more than five
thousand dollars, or by both.
The statutes that are said to constitute the “special”
or “specific” statute are found in chapter 42.17 RCW. To
place them in context, we provide a brief explanation of
the relevant statutory scheme. In 1972 and 1992 the
voters enacted two initiatives that comprise the greater
part of the PDA. Initiative 276 (1-276) was approved by the
voters in 1972 and codified as chapter 42.17 RCW. Among
other purposes of 1-276 are the following, codified at RCW
42.17.010:
* Laws of 2003, ch. 53, § 216, effective July 1, 2004, inserted: “is
guilty of a class C felony and.”
App. 7
It is hereby declared by the sovereign people to
be the public policy of the state of Washington:
(1) That political campaign and lobbying
contributions and expenditures be fully disclosed
to the public and that secrecy is to be avoided.
(3) That the people shall be assured that
the private financial dealings of their public offi-
cials, and of candidates for those offices, present
no conflict of interest between the public trust
and private interest.
(10) That the public’s right to know of the
financing of political campaigns and lobbying
and the financial affairs of elected officials and
candidates far outweighs any right that these
matters remain secret and private.
Modifications have been made to chapter 42.17 RCW since
1-276 was implemented in 1973. Chief among these, in
1992 the voters approved Initiative 134 (1-134), the Fair
Campaign Practices Act (Laws of 1993, ch. 2, $§ 1-36),
which supplemented and amended the chapter. Senate
Republican Campaign Comm. v. Pub. Disclosure Comm’n,
133 Wn.2d 229, 233, 943 P.2d 1358 (1997).
The statutes in chapter 42.17 RCW, then, require that
the public be informed of campaign and lobbying contribu-
tions and, through this disclosure, help to ensure the
integrity of government, and they require that campaign
contributions be limited to prevent disproportionate or
controlling influence by financially strong groups. See
Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523,
532-33, 936 P.2d 1123 (1997); State v. (1972) Dan J. Evans
App. 8
Campaign Comm., 86 Wn.2d 503, 507-08, 546 P2d 75
(1976); Fritz v. Gorton, 83 Wn.2d 275, 284, 517 P2d 911
(1974).
Chapter 42.17 RCW includes two statutes that the
defendants concede would be violated if the State’s allega-
tions were proven and its theory of the law was correct.
RCW 42.17.120 provides that
(njo contribution shall be made and no expendi-
ture shall be incurred, directly or indirectly, in a
fictitious name, anonymously, or by one person
through an agent, relative, or other person in
such a manner as to conceal the identity of the
source of the contribution or in any other manner
so as to effect concealment.
And RCW 42.17.780 provides: “A person may not, directly
or indirectly, reimburse another person for a contribution
to a candidate for public office, political committee, or
political party.”
As the trial court determined, violation of either of
these statutes would subject the defendants to the puni-
tive and enforcement sections of chapter 42.17 RCW, RCW
42.17.390 and .400. RCW 42.17.390 provides that “[o]ne or
more of the following civil remedies and sanctions may be
imposed by court order in addition to any other remedies
provided by law” and then lists a number of possible
sanctions. RCW 42.17.400 governs enforcement and
provides that the attorney general and the prosecuting
authorities of the State’s political subdivisions “may bring
civil actions in the name of the state for any appropriate
civil remedy, including but not limited to the special
remedies provided in RCW 42.17.390.” RCW 42.17.400(1).
It also provides for citizens’ actions if the attorney general
App. 9
and prosecuting attorney fail to bring an action within
specified time periods. RCW 42.17.400(4).
The trial court determined that the PDA constitutes a
comprehensive statutory scheme setting out prohibited
acts and requirements, including reporting requirements,
for candidates and contributors. The court granted the
motion to dismiss on the basis that because the act
“treated the entire subject area of political contributions to
\ local and state-wide campaigns,” the general-specific rule
applies, with the penalty provisions of chapter 42.17 RCW
being the controlling “specific statute” under which the
State must charge. Tr. of Proceedings (Feb. 16, 2006) at
26.°
For a number of reasons, we disagree. First, RCW
42.17.390 expressly provides that “other remedies pro-
vided by law” are not displaced by chapter 42.17 RCW.
Second, the “general-specific” rule is not applicable both
because chapter 42.17 RCW and RCW 40.16.030 are not in
conflict and because there is insufficient support for any
conclusion that the legislating body, the people, intended
that chapter 42.17 RCW supersede RCW 40.16.040. And
finally, we do not believe the rule applies where a criminal
* Some of the trial court’s reasoning seems couched in language
relating to preemption of one statute by another, while other parts of
the court’s explanation show the basis of the decision being the applica-
tion of the “general-specific rule.” While each of these theories has
specific application in specific circumstances, here we are concerned
with whether enactment of chapter 42.17 RCW, and in particular RCW
42.17.390 and .400, bar prosecution under RCW 40.16.030 where the
conduct at issue involves filing false campaign contribution reports. The
chief dispute is whether the “general-specific” rule applies. We note that
some cases refer to application of the “general-specific” rule as involving
repeal of the general statute by the specific or special statute.
App. 10
statute and civil statute are in question. Absent explicit
legislative command that a civil statute precludes prosecu-
tion under an existing criminal statute or that the crimi-
nal statute is repealed, the “general-specific” rule does not
apply because its application would infringe on the prose-
cuting attorney’s discretion to charge a crime.
Turning to the first of these reasons, as set out above,
RCW 42.17.390 expressly states that the civil remedies
and sanctions set forth in the statute “may be imposed by
court order in addition to any other remedies provided by
law.” (Emphasis added.) Thus, the PDA expressly provides
that any remedy available under any other statute may be
imposed.
The defendants maintain, however, that no lay voter
would reasonably construe the reference to “other reme-
dies” to mean criminal penalties. They contend that a
court must view the language as the average informed lay
voter would read it, relying on State ex rel. Evergreen
Freedom Foundation v. Washington Education Association,
140 Wn.2d 615, 637, 999 P.2d 602 (2000) and Senate
Republican Campaign Committee, 133 Wn.2d at 243.
However, because the statute mentions a number of
monetary fines and penalties, and repeatedly refers
specifically to “civil penalt{ies],” RCW 42.17.390(3), (4), (5),
it appears to us just as reasonable (if not more so) that the
informed lay voter would think that the reference to “any
other remedies provided by law” means penalties other
than the “civil penaltlies],” i.e., criminal penalties. RCW
42.17.390 (emphasis added).
Moreover, once an initiative is enacted into law, the
same principles of statutory construction apply as apply
when the legislature enacts a measure. McGowan v. State,
App. 11
148 Wn.2d 278, 288, 60 P.3d 67 (2002); Wash. State Repub-
lican Party v. Pub. Disclosure Comm’n, 141 Wn.2d 245,
280, 4 P.3d 808 (2000); City of Spokane v. Taxpayers of
Spokane, 111 Wn.2d 91, 97, 758 P.2d 480 (1988). One of
these principles of statutory construction is that the
legislature is “‘presumed to have full knowledge of exist-
ing statutes affecting the matter upon which they are
legislating.’” Martin v. Triol, 121 Wn.2d 135, 148, 847 P.2d
471 (1993) (quotation marks omitted) (quoting Bennett v.
Hardy, 113 Wn.2d 912, 926, 784 P.2d 1258 (1990)). Thus,
the voters must be presumed to have known that RCW
40.16.030 made it a felony to knowingly offer any false or
forged instrument for filing when they enacted 1-276 in
1972 and I-134 in 1992. Yet, the initiative did not provide
that the criminal statute was no longer effective.
The defendants maintain, however, that the voters
intended this statutory scheme to exclusively regulate the
field and knew that it would necessarily preempt the
earlier general statute. See Wark, 87 Wn.2d at 866. The
defendants maintain that the sole provisions regarding
penalties and remedies, RCW 42.17.390 and .400, do not
impose or authorize any criminal sanctions. Further, they
urge, unlike other statutes that expressly preserve the
right to bring criminal actions, such as state securities
law, RCW 21.20.420, and the workers’ compensation law,
RCW 50.36.010, chapter 42.17 RCW does not contain such
a provision. These considerations, the defendants main-
tain, lead to the conclusion that when the voters enacted I-
276 in 1972 and [1-134 in 1992, they intended that the
provisions in chapter 42.17 RCW would preempt any other
statutes penalizing conduct within their purview.
But the defendants point to no express indicator that
the voters intended to foreclose criminal prosecutions
App. 12
under existing statutes. Further, the reference to “any
other remedies provided by law” in RCW 42.17.390 ex-
pressly shows that other civil remedies are not precluded.
If other civil penalties are not foreclosed, then it necessar-
ily follows that the act is not intended to be exclusive or to
“preempt the field,” contrary to the defendants’ claim.
The defendants also contend, though, that because
the term “any other remedies provided by law” in RCW
42.17.390 follows the phrase “civil remedies and sanctions”
the two should be read together, and “and other remedies
provided by law” should be understood to mean other
consistent civil remedies. We do not find this argument
convincing. Rather than suggesting that only the same
kind of remedies are preserved, the words “any other”
suggest additional remedies can be of any kind, including
criminal remedies.
The defendants also rely on United States v. Hansen,
249 U.S. App. D.C. 22, 772 F.2d 940, 946 (1985), where the
court, addressing the phrase “‘[s]uch remedy shall be in
addition to any other remedy available under statutory or
common law’” (quoting 2 U.S.C. § 706), said that it “seems
specifically directed to civil actions since criminal sanc-
tions are rarely described as ‘remedies.’” But in contrast,
this court has expressly made reference to “criminal
remedies” on a number of occasions, and, more importantly
for present purposes, so has the legislature. See, e.g., In re
Det. of C.W., 147 Wn.2d 259, 282, 53 P3d 979 (2002)
(referring to “‘civil and criminal remedies’”); Winchester v.
Stein, 135 Wn.2d 835, 849, 959 P.2d 1077 (1998) (referring
to “both civil and criminal remedies” available under the
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-1968, and the Washington Criminal Profi-
teering Act, chapter 9A.82 RCW); City of Tacoma v. State,
App. 13
117 Wn.2d 348, 351, 816 P.2d 7 (1991) (referring to “crimi-
nal remedies” under the domestic violence act of 1979);
RCW 49.60.020 (providing that nothing contained in the
provisions of Washington’s law against discrimination
“shall ... be construed to deny the right to any person to
institute any action or pursue any civil or criminal remedy
based upon an alleged violation of his or her civil rights”
(emphasis added)).
The defendants also maintain that the Court of
Appeals has read the phrase “other remedies” narrowly,
citing Crisman v. Pierce County Fire Protection District
No. 21, 115 Wn. App. 16, 60 P.3d 652 (2002). Crisman does
not support the defendants’ argument. There, the plaintiff
claimed that the phrase “in addition to any other remedies
provided by law” permitted recovery through a private tort
action. The court rejected the claim, finding that chapter
42.17 RCW does not show legislative intent to create an
implied private tort cause of action. In the present case, in
contrast, the question is whether an existing criminal
statute can be utilized in addition to civil remedies.
Crisman is not analogous.
We conclude that the express acknowledgement in
RCW 42.17.390 that the remedies listed do not preclude
“any other remedies provided by law” shows that chapter
42.17 RCW is not intended to preclude a criminal action
under RCW 40.16.040.
The second reason that the trial court’s conclusion is
incorrect is that, as noted, “[a] more specific statute
supersedes a general statute only if the two statutes
pertain to the same subject matter and conflict to the
extent they cannot be harmonized.” Jn re Estate of Kerr,
App. 14
134 Wn.2d at 343. Here, as the State argues, there is no
conflict between RCW 40.16.040 and chapter 42.17 RCW.
Under RCW 42.17.400, the attorney general or a
county prosecuting attorney can bring an action to impose
a fine or other civil remedy for a violation of a provision of
chapter 42.17 RCW. Under RCW 42.17.390, a civil penalty
of not more than $10,000 can be imposed for a violation of
any provision of the chapter; violations of RCW 42.17.640
(setting campaign limits) are subject to fines of $10,000 or
three times the amount of the illegal contribution, which-
ever is greater; fines of $10 per day may be imposed for
each day a properly completed statement of report re-
quired by the chapter is delinquent; and a civil penalty
equivalent to the amount an individual fails to report as a
contribution or expenditure may be imposed.
Working in tandem, RCW 40.16.030 provides that a
person can be convicted of a felony for filing or causing to
be filed a campaign finance report that he or she knows is
false, and then only if all the elements of the offense are
proven beyond a reasonable doubt. As the State argues, it
is only when a person “knowingly” causes the public to be
provided with false information that an individual “crosses
the line” into criminal accountability.
The State also maintains that the two statutes are not
concurrent, and thus the “general-specific” rule does not
apply. We agree. Statutes are concurrent for purposes of
the rule if “the general statute will be violated in each
instance where the special statute has been violated.”
State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984).
“It is not relevant that the special statute may contain
additionai elements not contained in the general statute.”
Id. Initially, as the State maintains, the burden of proof for
App. 15
the criminal statute, beyond a reasonable doubt, is not the
same as it is for a civil violation under chapter 42.17 RCW.
Further, as the State maintains, RCW 40.16.030 contains
a mens rea requirement. Violations of chapter 42.17 RCW
can occur that would not meet the beyond a reasonable
doubt standard and would not involve a “knowingly”
mental state. Thus, the two statutes are not concurrent.°
The defendants say, though, that RCW 42.17.920
precludes reliance on RCW 40.16.030. RCW 42.17.920
states that “filn the event of conflict between the provi-
sions of this act and any other act, the provisions of this
act shall govern.” But there is no conflict. In addition,
RCW 42.17.920 must be read in conjunction with RCW
42.17.390, which expressly authorizes “any other remedies
provided by law.” Because chapter 42.17 RCW expressly
authorizes such “other remedies,” they are not in conflict
with the chapter.
The State says a prosecution and conviction under
RCW 40.16.030 is consistent with the declaration of policy
found in the first section of I-276: “It is hereby declared by
the sovereign people to be the public policy of the State of
Washington ... [t]hat political campaign and lobbying
contributions and expenditures be fully disclosed to the
public and that secrecy is to be avoided.” Laws of 1973,
ch.1, § 1 (1-276). Thus, rather than acting in conflict with
* The defendants point out that if a violation of chapter 42.17 RCW
is intentional, penalties may be trebled. RCW 42.17.400(5). Therefore,
they contend, the act includes a mens rea requirement. However, this
does not mean that all violations of chapter 42.17 RCW would necessar-
ily occur with a “knowingly” mental element, and thus it does not
undercut the conclusion that the two statutes are not concurrent.
App. 16
chapter 42.17 RCW, RCW 40.16.030 serves the purposes of
the PDA.
The State’s observation that a criminal prosecution
under RCW 40.16.030 can effectuate public policy set out
in chapter 42.17 RCW also highlights the distinctive
nature of RCW 40.16.030. Prosecution under the criminal
statute will always effectuate the goal of another statute
or regulation. In State v. Hampton, 143 Wn.2d 789, 793-
94, 24 P.3d 1035 (2001), we repeated the test for defining
an instrument falling within the scope of the statute:
“RCW 40.16.030 encompass[es}] a document
which is required or permitted by statute or valid
regulation to be filed, registered, or recorded in a
public office if (1) the claimed falsity relates to a
material fact represented in the instrument; and
(2a) the information contained in the document is
of such a nature that the government is required
or permitted by law, statute or valid regulation to
act in reliance thereon; or (2b) the information
contained in the document materially affects sig-
nificant rights or duties of third persons, when
this effect is reasonably contemplated by the ex-
press or implied intent of the statute or valid
regulation which requires the filing, registration,
or recording of the document.”
(Quoting State v. Price, 94 Wn.2d 810, 819, 620 P.2d 994
(1980) (alteration in original).) “RCW 40.16.030 requires
that a document be ‘required or permitted by law, statute
or valid regulation.’” Hampton, 143 Wn.2d at 794 (quoting
Price, 94 Wn.2d at 819).
The defendants argue that chapter 42.17 RCW is not
ambiguous, but if it were found to be ambiguous, the
history and context of 1-276 would support their claim.
App. 17
They point out that nothing in the ballot title of I-276
mentions the possibility of criminal prosecution and a
section of the 1972 voters’ pamphlet entitled “The Law as
it now exists” noted only that “[pjresently, candidates
seeking nomination at a primary election must file a
statement indicating the expenditures made for the
purpose of obtaining their nomination. Violation is a
misdemeanor.” CP at 47. The defendants conclude that the
people were thus informed they were being asked to
approve a comprehensive scheme imposing only civil
penalties and that doing so would repeal existing criminal
penalties on the subject.
We do not agree. Nothing in the voters’ pamphlet or
in 1-276 stated that 1-276 was intended to repeal RCW
40.16.030, either in whole or in part.
The defendants say, though, that in the same election
the ballot included an alternative campaign finance law
proposed by the legislature, Referendum Bill 25 (R-25),
with the ballot title and text informing voters of the
referendum’s criminal penalties (those violating the act
would be guilty of misdemeanors). Because the voters
chose 1-276 over R-25, the defendants claim, this shows
they understood the State’s campaign laws would be
enforced strictly through civil penalties.
As this court has often reasoned, legislative intent
cannot be gleaned from the failure to enact a measure,
particularly where there are several different components
of it, any one of which might be critical to the decision to
reject. See, e.g., Leeper v. Dep't of Labor & Indus., 123
Wn.2d 803, 816, 872 P.2d 507 (1994) (rejection of a bill
with five sections, four of which had nothing to do with the
subject matter at issue, was not evidence of legislative
App. 18
intent); Spokane County Health Dist. v. Brockett, 120
Wn.2d 140, 839 P.2d 324 (1992) (court will not speculate as
to why the legislature rejects a proposed amendment).
Here, speculation would not only be required for a meas-
ure with multiple sections (R-25 contained 20 substantive
sections regulating electoral campaign financing), but,
more significantly, it would be required for purposes of
determining what rejection of one measure means to a
separate measure altogether. We decline defendants’
invitation to speculate.
There is no conflict between RCW 40.16.030 and
chapter 42.17 RCW. Both can be given effect and harmo-
nized.
The final reason why the “general-special” rule does
not apply is because one of the statutes at issue is criminal
and the other is civil. In two cases the Court of Appeals
has addressed the “general-specific” argument in the
context of a criminal! statute and a civil statute. In each of
the cases, Division Two rejected the claim that chapter
70.24 RCW is a special statute precluding prosecution
under RCW 9A.36.011(1)(b), first degree assault with
sexual motivation. Each case involved a defendant who
had been diagnosed HIV (human immunodeficiency virus)
positive and then engaged in unprotected sexual encoun-
ters. Chapter 70.24 RCW authorizes a public health officer
to counsel a person with a sexually transmitted disease
and, if necessary, to issue an order to cease and desist
conduct that endangers the health of others, and, if other
procedures have been exhausted, to bring an action to
detain the person in a designated facility for a period of
counseling and education not to exceed 90 days.
App. 19
In State v. Whitfield, 132 Wn. App. 878, 134 P.3d 1203
(2006), the court explained, as it had in an earlier case,
that while chapter 70.24 RCW provides a potential civil
remedy, nothing in the chapter precludes the prosecutor
from choosing to file criminal charges rather than ex-
hausting available civil remedies. Jd. at 889, J 22 (citing
State v. Stark, 66 Wn. App. 423, 431-32, 832 P.2d 109
(1992)). The court also noted that “[t}]he exercise of prose-
cutorial discretion on whether to criminally charge some-
one involves a number of considerations, not the least of
which is the public interest.” Stark, 66 Wn. App. at 431.
Absent a very clear indication that the legislature
intended that a civil statute preclude prosecution under a
criminal statute, we will not apply the “general-specific”
rule to foreclose the exercise of prosecutorial discretion or
to negate the legislature’s determination that the conduct
described by the criminal statute is subject to prosecution
as a crime.
Moreover, it is not unusual for criminal and civil
statutes to “co-exist,” as the State puts it. E.g., United
States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135
L. Ed. 2d 549 (1996) (criminal prosecution and civil prop-
erty forfeiture for the same offense do not violate double
jeopardy); State v. Catlett, 133 Wn.2d 355, 945 P.2d 700
(1997) (same). The “general-specific” rule should be ap-
plied to preclude a criminal prosecution only where the
legislative intent is crystal clear.
We hold that chapter 42.17 RCW does not preclude
prosecution under RCW 40.16.030.
We briefly note other arguments made by the defen-
dants. Although the defendants maintain that the doctrine
of repeal by implication does not apply in this case, the
App. 20
parties have devoted considerable attention to the issue.
The matter is readily resolved. Implied repeal is disfa-
vored and will be found only (1) where the later act covers
the entire field of the earlier one, is complete in itself, and
is intended to supersede prior legislation, or (2) where the
two acts cannot be reconciled and both given effect by a
fair and reasonable construction. Amalgamated Transit
Union Legislative Council v. State, 145 Wn.2d 544, 552, 40
P.3d 656 (2002); Local No. 497, Int'l Bhd. of Elec. Workers
v. Pub. Util. Dist. No. 2 of Grant County, 103 Wn.2d 786,
788-89, 698 P.2d 1056 (1985). The first of these tests is not
satisfied because chapter 42.17 RCW does not cover the
entire subject matter of RCW 40.16.030. For example, as
the State points out, RCW 40.16.030 applies to instru-
ments such as child support orders. State v. Sanders, 86
Wn. App. 466, 937 P.2d 193 (1997). As to the second test,
as explained above the State shows that the two statutes
can be harmonized and both given effect.
The defendants also argue that the public disclosure
commission’s regulations and the SMC interpret chapter
42.17 RCW to preclude criminal penalties. As to the latter,
it makes no difference how drafters of the SMC interpret
chapter 42.17 RCW. As to the former, the defendants rely
on regulations that encourage the parties to consider
alternative, informal resolution procedures. WAC 390-37-
010; -090. However, the PDC’s preference for informal
resolution does not preclude a prosecutor’s decision to file
criminal charges based on the same conduct or conduct
which is more egregious.
The parties debate whether giving effect to both
statutes would undermine enforcement under chapter
42.17 RCW. The defendants maintain that if the State can
criminally prosecute the defendants under RCW 40.16.030,
App. 21
then the State would also be free to ignore the civil stat-
utes. Br. of Resp’t’s at 34. As the State points out, however,
a number of campaign law violations will not rise to the
level of the felony conduct described by RCW 40.16.030.
Moreover, the State’s ability to charge under two statutes
is not a reason to hold that one of the statutes must
prevail over the other.
The defendants next argue that if we reverse the trial
court on statutory interpretation grounds, as we do, we
should nonetheless affirm the trial court’s dismissal of the
charges on the alternative basis that the defendants were
not provided with fair notice that their conduct would be
subject to criminal prosecution. Defendants due process
claim is based on article I, section 3 of the Washington
Constitution. They do not argue that a different due
process analysis applies under the state constitution than
applies under the federal constitution and therefore the
federal analysis will be applied here. See State v. Sullivan,
143 Wn.2d 162, 180 n.73, 19 P.3d 1012 (2001).
The defendants’ due process argument fails because
they make absolutely no argument at all about RCW
40.16.030 itself and whether this statute provides fair
notice of the conduct that it proscribes and standards to
prevent arbitrary enforcement. State v. Harner, 153 Wn.2d
228, 237, 103 P.3d 738 (2004); State v. Riles, 135 Wn.2d
326, 348, 957 P.2d 655 (1998). Because they have not even
addressed RCW 40.16.030, they clearly have not met their
burden of establishing the unconstitutionality of the
statute under which they were charged beyond a reason-
able doubt.
App. 22
Accordingly, the trial court’s dismissal of the charges
will not be affirmed on the alternate due process ground
asserted by the defendants.
CONCLUSION
Through its disclosure and limitation requirements,
chapter 42.17 RCW helps to ensure the integrity of gov-
ernment by preventing disproportionate or controlling
influence by financially strong groups. To carry out this
public purpose, conduct prohibited under the chapter may
be sanctioned through civil remedies under the chapter “in
addition to any other remedies provided by law.” RCW
42.17.390. We hold that chapter 42.17 RCW is not a
specific statute that precludes prosecution under RCW
40.16.030 for conduct that is subject to the penalty provi-
sions of both statutes. Thus, in the appropriate case, one
remedy available to prosecuting authorities is prosecution
under RCW 40.16.030. We reverse the trial court, rein-
state the charges against the defendants, and remand for
further proceedings consistent with this opinion.
AUTHOR:
Justice Barbara A. Madsen
WE CONCUR:
Chief Justice Gerry L. Alexander
Justice Susan Owens
Justice Mary E. Fairhurst
Justice James M. Johnson
App. 23
Justice Bobbe J. Bridge
SANDERS, J. (dissenting) - John Conte, Frank
Colacurcio, Jr., Frank Colacurcio, Sr., and Marsha Furfaro
were charged with nine counts of violating RCW
40.16.030. Defendants allegedly reimbursed individuals
for campaign contributions, thereby concealing the iden-
tity of the contributors and sources of the contributions.
Because of defendants’ alleged scheme, certain Seattle
City Council members’ election campaign committees filed
false campaign finance reports.
Initiative 276 (I-276), overwhelmingly approved in
1972 by the people of Washington, specifically regulates
and prohibits this precise conduct. Seeber v. Pub. Disclo-
sure Comm’n, 96 Wn.2d 135, 138, 634 P.2d 303 (1981).
Now codified at chapter 42.17 RCW, I-276 “provides a
comprehensive financial reporting scheme for lobbyists,
campaign committees, public officials and candidates.”
Seeber, 96 Wn.2d at 138. The peuple created the initiative
for the “expressed purpose of fostering openness in their
government”; its creation reflects our belief that the
electorate “has the right to know of the sources and
magnitude of financial and persuasional influences upon
government.” Fritz v. Gorton, 83 Wn.2d 275, 309, 517 P.2d
911 (1974). See RCW 42.17.010(2) (“[T]he people have the
right to expect from their elected representatives at all
levels of government the utmost of integrity, honesty, and
fairness in their dealings.”).
As the majority states, “(clhapter 42.17 RCW includes
two statutes that the defendants concede would be violated if
——
App. 24
the State’s allegations were proven and its theory of the
law was correct.” Majority at 7. Yet despite these two
statutes specifically proscribing defendants’ precise con-
duct and the State’s concession that RCW 40.16.030 has
never before been applied to a campaign violation, the
majority holds chapter 42.17 RCW does not bar prosecu-
tion of defendants under RCW 40.16.030. I disagree as the
public disclosure act (PDA), chapter 42.17 RCW, limits the
State to civil recoveries.
1. The Plain Meaning of Chapter 42.17 RCW Limits
the State to Civil Remedies
Our goal is to ascertain and implement the legisla-
ture’s intent. Dep’t of Transp. v. State Employees’ Ins. Bd.,
97 Wn.2d 454, 458, 645 P.2d 1076 (1982). To determine
legislative intent, “we begin with the statute’s plain
language and ordinary meaning.” Nat’? Elec. Contractors
Ass’n vu. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999). “If
a statute is plain and unambiguous, its meaning must be
primarily derived from the language itself.” Cockle v. Dep’t
of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001).
“Plain language does not require construction.” Koenig v.
City of Des Moines, 158 Wn.2d 173, 181, 142 P3d 162
(2006) (citing State v. Thornton, 119 Wn.2d 578, 580, 835
P.2d 216 (1992)).
As defendants correctly observe, the unambiguous
language of chapter 42.17 RCW indicates the act’s penal-
ties are “complete, exclusive and non-criminal.” Br. of
Resp’ts at 12. The trial judge correctly determined chapter
42.17 RCW “constitute[s] a comprehensive statute provid-
ing for a series of prohibited acts and requirements on
political candidates and contributors|;] ... [the statute]
treat|s] the entire subject area of political contributions to
App. 25
local and state-wide campaigns.” Transcript of Proceedings
(Feb. 16, 2006) at 26. RCW 42.17.390 and .400 provide the
act’s “sole provisions regarding penalties and remedies”
and neither authorizes the imposition of criminal sanc-
tions. Br. of Resp’ts at 12. Chapter 42.17 RCW empowers
and specifically limits state attorneys and county prosecu-
tors to bring only “civil actions” for “civil remed|[ies];” it
provides: 2
The attorney general and the prosecuting au-
thorities of political subdivisions of this state
may bring civil actions in the name of the state
for any appropriate civil remedy, including but
not limited to the special remedies provided in
RCW 42.17.390.
RCW 42.17.400(1) (emphasis added).
“[A]lny appropriate civil remedy” should end our
analysis as it explicitly limits the State to civil remedies.
The “special remedies” provided in RCW 42.17.390 and the
statute’s reference to “any other remedies provided by law”
(upon which the majority incorrectly fixates) is merely a
subset of “any appropriate civil remedies.” Contrary to the
majority’s belief, the clause “any other remedies provided
by law” is not an invitation for the State to impose crimi-
nal sanctions.
2. RCW 40.16.030 Is Not Remedial
RCW 42.17.400(1) authorizes the State to bring “civil
actions ... for any appropriate civil remedy.” (Emphasis
added.) The “special remedies” provided in RCW 42.17.390
also limit enforcement options to civil remedies and
sanctions. See RCW 42.17.390 (“[o]ne or more of the
following civil remedies and sanctions may be imposed by
App. 26
court order in addition to any other remedies provided by
law” (emphasis added)). As stated above, the majority
mistakenly emphasizes the phrase “any other remedies
provided by law,” believing it indicates “additional reme-
dies can be of any kind, including criminal remedies.”
Majority at 12. But the majority fails to focus on the
statute’s reference to the word “remedies.” Because RCW
40.16.030 is neither civil nor remedial, it does not qualify
as one of the intended “other remedies” cited by the
statute. See United States v. Hansen, 249 US. App. D.C.
22, 772 F.2d 940, 946 (1985) (criminal sanctions are rarely
described as “remedies”).
RCW 42.17.390’s language aptly reflects the predomi-
nantly remedial character of the legislation. See RCW
42.17.390(1) (providing for an election to be held void if the
court finds a violation of this chapter probably affected the
outcome of an election and stating, “[i]t is intended that
this remedy be imposed freely ... to protect the right of
the electorate to an informed and knowledgeable vote”);
RCW 42.17.390(2) (providing for a lobbyist’s registration to
be revoked or suspended should he violate this chapter);
RCW 42.17.390(3) (“lalny person who violates any provi-
sions of this chapter may be subject to a civil penalty”);
RCW 42.17.390(6) (providing for injunctive relief). See 3
Norman J. Singer, Sutherland Statutory Construction
§ 60.02, at 152-53 (5th ed. 1992) (“Usually ‘remedial’ is
used in connection with legislation which is not penal or
criminal in nature, in that such laws do not impose crimi-
nal or other harsh penalties.”).
By contrast, RCW 40.16.030 is punitive: “Every
person who shall knowingly procure or offer any false or
forged instrument to be filed, registered, or recorded in
any public office ... shall be punished by imprisonment
App. 27
. or by a fine....” Unlike civil statutes, which are
considered remedial, criminal statutes are generally
associated with punitive consequences.’ United States v.
Ursery, 518 U.S. 267, 277, 116 S. Ct. 2135, 135 L. Ed. 2d
549 (1996). Because RCW 40.16.030’s sanctions are puni-
tive it is not a “civil remedy” contemplated by chapter
42.17 RCW and is therefore inapplicable to defendants.
3. The History of Chapter 42.17 RCW and the 1972
Voters Pamphlet Confirms the PDA Limits the State
to Civil Remedies
Generally, only when the language of an initiative is
ambiguous do we look to other extrinsic sources, such as
the voters pamphlet, to determine electoral intent. Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149
Wn.2d 660, 671, 72 P.3d 151 (2003). Since chapter 42.17’s
language unambiguously allows the State to seek only
civil remedies, our analysis need not go further. However,
even if the statutory language was ambiguous, the history
of I-276 supports defendants’ position. I-276’s ballot title,
explanatory comments, and the text of the initiative itself
informed voters the act would provide only “civil penal.
ties.” Clerk’s Papers (CP) at 46-47, 50-61, 68.
Importantly, the 1972 ballot included an alternative
campaign finance law, Referendum Bill 25, described by its
supporters as “a strict, realistic approach to the reporting
and limiting of campaign contributions and expenditures.”
' Furthermore, RCW 42.17.400(5) states, “li]f the violation is found
to have been intentional, the amount of the judgment ... may be
trebled as punitive damages.” Such a clause provides the extent of
punitive sanctions available to the State and does not suggest the State
may seek further punitive measures in other criminal statutes.
App. 28
CP at 48. Referendum Bill 25 also proposed a comprehen-
sive statutory scheme for regulating campaign contribu-
tions and expenditures, yet provided for “criminal
penalties” instead of civil. CP at 48, 68 (voters were
informed violators of Referendum Bill 25 “would be guilty
of misdemeanors”). Voters were asked to compare and
choose between the two competing measures in the 1972
election. By choosing I-276 over Referendum Bill 25,
voters expressed specific intent to enact a comprehensive
campaign finance law that provided exclusively for civil
penalties.
Accordingly, I dissent.
AUTHOR:
Justice Richard B. Sanders
WE CONCUR:
Justice Tom Chambers
Justice Charles W. Johnson
App. 29
IN THE SUPERIOR COURT OF THE
STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
STATE OF WASHINGTON ) 05-C-08807-5S
) 05-C-08808-3S
) 05-C-08808-3S
JOHN CONTE, FRANCIS ) 05-C-08810-5S
COLACURCIO, SR.
FRANCIS COLACURCIO, JR.,
MARCIA MARIE FUFARO,
Defendants.
vs.
eZ" SS Se
TRANSCRIPT OF PROCEEDINGS
before the Honorable MICHAEL FOX, Judge,
presiding on February 16, 2006.
HEARING.
APPEARANCES:
For the State of Washington: MARILYN BRENNEMAN, Esq.
SCOTT PETERSON, Esq.
JOHN CARVER, Esq.
For the Defendant Conte: RICHARD HANSEN, Esq.
For the Defendant
Colacurcio, Sr. IRWIN SCHWARTZ, Esq.
For the Defendant
Colacurcio, Jr. JOHN WOLFE, Esq.
ROBERT LEINBACH, Esq.
For the Defendant Fufaro: ROBERT MAHLER, Esq.
REPORTED BY
J. Dan Lavielle, RPR
Official Court Reporter
State of Washington
App. 30
{2] INDEX
WITS. DIRECT CROSS REDIRECT RECROSS VD
None.
EXHIBITS FOR IDENTIFICATION IN EVIDENCE
None.
[3] MR. LIENBACH: I have a handout for you
for ease of referring to certain of the cases and the stat-
utes.
As a brief introduction to all the motions, the genesis
of these is essentially that there is a statute on the books,
RCW 42.17, which governs the conduct prescribed and
alleged by the government in this case and that there have
been a number of times enforcement actions have been
brought against people for violating 42.17. This is the first
time that when conduct alleged in 42.17, that we’re aware
of, that the state is using 40.16 to prosecute the defen-
dant’s criminally.
With that background, that’s sort of what the reason
why we brought all these motions here today.
THE COURT: I'll ask you one question.
I know that a number of you practice in the Federal
courts, you might have the information anecdotally or
otherwise. I recall several years ago that there was a
federal prosecution of an individual who had made contri-
butions through other people to a city initiative campaign
regarding district election of the Seattle city Council, I
believe that was prosecuted in federal court.
Now, I think that was a plea and there is [4] nothing
on it here but can you tell me where that came from? |
App. 31
mean when I was looking at both of your arguments about
the interplay between the civil and criminal statutes, that
was the only thing that I could recall where there was a
criminal prosecution of either the Seattle municipal
Ordinances or the UCC and I just would be curious if
there was — how that wound up in federal court and what
statute was implicated there. I presume it wasn’t the state
statute.
MR. LEINBACH: I assume you're speaking of
the Buckley case.
THE COURT: No, it’s the Stewart case.
MR. WOLFE: My recollection is a little different
about the factual predicate in the Stewart case in the
courts.
In Stewart there were investigations, as I recall,
relating to campaign contributions directed to a congres-
sional candidate, councilman Peter Vonreichbauer (pho-
netic), as well as issues concerning campaign contributions
that may have been governed by Title 40 that were local.
The prosecution in federal court and the guilty plea
relating to Mr. Stewart involved the contributions made to
Mr. Vonreichbauer, who I [5] represented. So I have some
knowledge of this and it was not — while there was, I
believe, a state investigation related to this, as well, that
prosecution was predicated upon the federal elections
campaign.
THE COURT: So didn’t involve the Seattle City
Council?
MR. WOLFE: No.
App. 32
MR. LEINBACH: Apologize for being too green.
THE COURT: Goes back a few years.
MR. LEINBACH: Before I get into the substance
of the first motion to dismiss, the state raised a procedural
objection. I believe we dealt with that sufficiently in our
brief showing the only issues before the court are issues of
law.
If Your Honor has any concerns about that procedural
argument, I’m happy to add —
THE COURT: No, go to the meat of the matter
that is the repeal by implication versus the concurrent
specific versus general rule.
MR. LEINBACH: There is no dispute between
the parties that 42.17 prescribes the conduct alleged here.
Look at the state’s opposition brief, three of the pages of
opposition is devoted to legislative history of 42.17, a
lengthy discussion of that.
[6] The reason that we bring the motion to dismiss is
because 42.17 contains a comprehensive and inclusive
remedial scheme that does not permit the filing of criminal
charges here.
Now, the real question for Your Honor today is what
was the intent of the people in 1972 when they passed I-
276 and the intent of the legislature when they subse-
quently amended it and left the penalty provisions at
civilly only over a 30-year period of time, whether you look
at the question in terms of a statutory interpretation
analysis, whether you look at in terms of a general versus
specific analysis or even a repeal by implication analysis,
we believe the answer to that question is it was only
App. 33
meant to be civil under all three of those analyses because
all three of those doctrines are in place to do the same
thing, which is to give effect to the intent of the people
when they passed the legislation and not allow the state to
usurp the powers of the people and pick and choose where
they want to.
So taking a look first at a statutory interpretation
analysis and looking at the clear language of the statute,
itself, and in the package that I handed up it includes the
relevant, at least what I submit are the relevant statutes
related to the [7] penalty provisions of 42.17.
And you can see on the top 1.400, the attorney general
and prosecuting authority of political substances division
of this state may bring civil actions in the name of the
state for any appropriate civil remedy. It’s clear the legis-
lature the people, when they passed initiatives, are giving
the prosecution the ability to bring civil claims.
Now, any doubt about that you can look at the title
.390 which innumerates the varying civil remedies and
sanctions. See the title says Civil Remedies and sanctions.
And as Mr. Mahler pointed out in his brief, under the
constitution the title has to relate to just one substantive
law. And the differences where I can demonstrate this is in
tab number six - actually the state brought this up, and
that is they brought up the example of, hey, look, the SEC
contains examples where there are civil and criminal
penalties that go side-by-side. But if you look at the last
page of that, in the RCW 21.20 related to securities act
there is a section entitled criminal Punishment, chapter
not exclusive, which says nothing in this chapter shall
limit the power of the state to punish any person for any
conduct that constitutes a crime.
App. 34
[8] That is showing you an example of what — if the
legislature intended for criminal penalties, that is the type
of thing reported under a separate title that allows for
criminal penalties.
Another section on the top page, 42.17.920, also shows
you that the expressed language in the statute is meant to
be civil only. That says in the event of conflict between the
provisions of this act and any other act, the provisions of
this act shall govern.
So, in other words, the people and the legislature
when they amended it, understood there may be potential
conflicts, conflicts like in the penalty provision where
someone might try impose criminal penalties like the state
is doing here and the people clearly set out if there is a
conflict, this statute governs, the civil penalties govern.
So I submit to you that under the statutory interpre-
tation analysis where the first step is look at the clear
language of the statute that it’s dispositive, that the
language is clear, it’s not ambiguous, that it was meant to
encompass the field related to violations under 42.17 and
that it was meant to have civil remedies only.
So I would say you don’t necessarily have to [9] look at
the legislative history in this case, but if you do, I submit
that the legislative history confirms that civil only was
intended.
Tab two shows you the voter pamphlet - excuse me,
tab one shows you the voter pamphlet of I-276 when it was
passed in 1972. As we state in our brief, there was another
initiative at the same time, R-25. Both of them dealt with
the consequences of campaigns, campaign contributions
App. 35
and public disclosure. In the title of 276 at the bottom says
and providing civil penalties. At the bottom of the title —
THE COURT: I’ve read this material in the brief
with regard to what is in the voter’s pamphlet. Frankly,
I’m not interested in that, I think this ought to be deter-
mined on the words of statute and the case law. Move to
that.
MR. LEINBACH: Your Honor, the state basi-
cally throws out one section of the statute in order to try
and defeat the fact that the words, itself, in the statute are
clear and expressed and that is they say there is a clause
in there that says any other remedies provided by law.
Now -
THE COURT: What portion of the statute are
you saying that the state is discarding or ruling out?
[10] MR. LEINBACH: I'm saying that the state
is ignoring the fact when in conflict 42.17 governs but
what they are saying is they are allowed to bring criminal
prosecution because a part of the statute says that these
civil remedies are available in addition to other remedies.
That is the statute, that is the part of the statute they are
citing.
Well, the court of Appeals has addressed this in
Chrisman, and | tab that as number two. In Chrisman an
individual sued the Pierce County Fire Department and
said they violated some of the provisions of 42.17 and tried
to bring a private civil cause of action under 42.17. The
Court of Appeals said you can’t do that.
And the same argument the state is making today, the
Chrisman plaintiff stated. Chrisman, he contended that
the statute expressly allows the court to impose civil
App. 36
remedies and sanctions in addition to any other remedies
provided by law. He said, this clause provided him with
recovery for private tort action. The court rejected that
and said we look at the statute and the statute is clear. It
has all of the different civil things, it allows the prosecutor
to bring a civil action only, it does not allow you to bring a
private citizens right of action.
[11] So if the court of Appeals is saying we’re not going
to read into this a private civil remedy, then how can we
write into it a felony criminal penalty, which has much
greater consequences.
So I believe that the Court of Appeals has spoken to
the issue and, secondarily, as we stated in our brief, in
order to make sense of the provision any other remedies
which occurs under the civil remedies, it only makes sense
if it follows that it be civil.
THE COURT: Your primary argument here is
with regard to the specific versus the general rule, as I
understand it, and the applicability of statutes when one
statute deals specifically with a certain type of violation
and the other is a more general application and as has
been pointed out over and over again in your memoranda
from both the state and the defense, all of the case law in
this state deals with two criminal statutes who are in that
category and none of them deal with a criminal statute
and a civil statute.
Now, that I think is the main thing that I'd like to
hear from you more on about why the cases that you cite
are applicable to a civil and criminal situation, as opposed
to criminal, criminal and whether that doctrine still
applies in that context. [12] And here, one of the things
that, when I’ve gone over the statute, is clear that there
App. 37
are punitive civil sanctions in the public disclosure act, as
opposed to just remedies, for example, that someone pay
back the cost of investigation or something like that.
Is there any distinction anywhere in the law with
regard to a civil statute like that that does have punitive
sanctions, as opposed to a civil statute that perhaps has
remedies but not punitive sanctions?
MR. LEINBACH: I understand Your Honor’s
question.
Before I get into that exact answer, I'd like to reiterate
the primary argument we’re making is statutory interpre-
tation, just reading the statute, itself, shows 42.17 is
exclusive.
THE COURT: I understand the argument there.
MR. LEINBACH: I wanted to reiterate because
the general versus specific argument is underneath that
argument, I think that first argument is looming larger.
But it’s true, we were not able to find a situation whereby
the general versus specific doctrine was used in a civil
versus a criminal context but I think that the purpose of
the rule is to give affect to the legislature’s intent.
THE COURT: But in terms of the 30, 29, [13]
whatever it is, 34 years since this legislation passed by
initiative, there has never been a criminal prosecution
under this statute for a violation of the type that is before
us today, is that correct?
MR. LEINBACH: I am not aware of one. I think
that speaks volumes to it.
App. 38
The other couple of things that support that, I did not
make a copy of this, I apologize, but the WAC 390-37-090 ~
I can hand this up. It talks about a settlement mechanism
for when —
THE COURT: Did you provide this to the state?
MR. LEINBACH: I have not, I’m sorry.
THE COURT: This is with regard to the Wash-
ington Administrative Procedure Act, I presume.
MR. LEINBACH: In regards to enforcement
actions under 42.17.
THE COURT: Okay, all right.
MR. LEINBACH: And what is interesting about
it is it provides for a settlement mechanism whereby it
asks defendants to go in, quickly resolve these, be creative,
talks about be creative in settlement of these type of
actions.
If the people are subject to criminal liability, then it
basically renders this provision [14] moot because who is
going to go in and quickly try and settle the civil when
they are subject to crimivxst lia ility? I just think there are
examples everywhere, the distinction between what is in
the Washington Securities Act and what is here. The fact
that the court of Appeals said you can’t write something in
that show that what was intended by the legislature,
which is what the general versus specific is meant to do,
basically what they are saying is you can’t — prosecutor
you can’t choose, you have to go with what is stated.
And let’s be honest, if 42.17 wasn't on the books, they
would have no cause of action against the defendant. They
App. 39
can’t bring anything without the fact that 42.17 prescribes
the exact conduct here at issue. They have to it have
42.17. What they are doing is saying we're going to choose
these sections of 42.17 which we like and cite those to the
court but we don’t like the penalty provision so we’re going
to go over here in 40.16 and choose the penalty provisions
over here, and they can’t have it both ways and that’s the
underlying policy behind the general versus specific
statute.
I'll touch on the repeal by implication doctrine because
that’s what the state relies on for [15] the majority of their
case.
And I think that the appeal by implication doctrine
actually weighs in our favor, as well. That’s for three
reasons. Two of the reasons are because again, as I’ve
stated, I don’t believe the repeal by implication doctrine
really has application because the Hansen case which they
rely on heavily, there are two things about the Hansen
case which are different here. One is there is no where in
the Hansen case that I could see that there is a similar
provision of where there is a conflict we govern under
42.17.
THE COURT: That’s the federal case, right?
MR. LEINBACH: Yes.
So that alone differentiates the results in Hansen.
But, secondly, Scalia, his whole argument was about
there was this long legislative history where the senators
knew that 1,001 in that case might have application to the
Ethnics in Government Act, and they talked about it in
legislative history they talk about whether or not it would
App. 40
apply and they decided the only way we can pass it is be
silent on it, get it through and cross our fingers.
That’s very different from this case where we [16]
have legislative history where the people actually rejected
criminal penalties to apply.
And finally, the repeal implication doctrine says if
they are clear and manifestly inconsistent, then we will
say it’s repealed by implication and here I submit that the
penalty provisions are clear and manifestly inconsistent
and I think if you look at — to me that’s clear in both 42.17
but even more clear in the Seattle municipal code provi-
sion.
And remember, the state has brought — they say we
filed false documents with the PDC and with the Seattle
city clerk and so they are relying on the Seattle municipal
Code provision for that and as you see at the top of my —
the Seattle municipal code says violation of this shall
constitute infraction not subject to the Seattle Criminal
code.
So they were even more explicit, they said instead of
putting in a in-case-of-conflict-we-govern, which is what
42.17 did, they said huh-uh, no criminal.
So even under the repeal by implication doctrine it is
clearly inconsistent and, therefore, 42.17 governs.
THE COURT: Thank you.
MR. MAHLER: May I make a quick statement
in [17] answer to the court’s question about the fact that
the specific versus general rule applies in criminal stat-
utes typically, and the court pointed out, there are puni-
tive sanctions here.
App. 41
The one thing I wanted to point out to the court that
the fact that punitive sanctions exist here doesn’t rendered
it a statute, that is somewhat akin to a criminal statute
and the Supreme court recognized that in some of its
double-jeopardy cases like Gore versus VFW so that where
punitive sanctions do apply it can be treated in the light
fashioned to a criminal statute.
So this is more like a criminal and a criminal statute
than a statute that may only have, for example, injunctive
relief or equitable relief.
THE COURT: Thank you, Mr. Mahler.
Mr. Carver?
MR. CARVER: Id like to start off by talking
about the overall statutory scheme that we have here.
I think from reading some of the pleadings here and
hearing the arguments today, one might get the impres-
sion 42.17 and 40.16.030 present the conflict of overlap-
ping morass of statutes that are impossible to disintangle
and hopelessly confused. The I submit respectfully that’s
not the case.
[18] Instead I think what we have is a specific gradu-
ated system that increases in severity as the conduct gets
more and more offensive. In other words, in 42.17, to use
42.17.390, I think what the defendants most emphasize,
42.17.390, subsection four, provides a civil penalty of $10 a
day if you don’t get your statements in on time, reports.
Subsection five of that same statute provides a civil
penalty if you fail to report a contribution or expenditure
you may be subject to a civil penalty equivalent to the
amount you failed to report.
App. 42
So those are civil penalties and you will notice there is
no mens rea requirement in that at all. The legislature, in
this case the people in its initiative, one campaign treas-
urers and other people that file these reports to be very
carefully so its a strict liability standard. You leave out an
expenditure, you may be dinged for the amount you failed
to report.
THE COURT: There are other sanctions in the
statute that allow considerably higher monetary sanctions,
I think can be triple the amount or $10,000, whichever is
higher, something like that, I can’t remember the precise
words for other types of violations as well. Right?
{19} MR. CARVER: I’m sure you are right, I’m
not sure which provisions I was looking at .390 in particu-
lar.
But as I said, none of those civil statutes, none of
those civil penalties in 42.17 require any kind of mens rea
and none of them have to do with filing false reports and
that’s where the felony provisions of 40.16.030 kick in,
when you knowingly, knowing it’s false, you file a false
report or cause someone else to file a false report. The
reporting is key. That is the mechanism by which this
information about campaign contributions and who is
getting what money from whom, that’s how it gets to the
public and that is the backbone of both initiatives 276 and
— and that’s the reason I included alot of that legislative
history, as well as —- supreme court commentary.
The point is that’s the thrust of what these were
designed to protect, the public’s right to know. And when
you cross that line, when you knowingly file those false
reports so the public gets false information about these
App. 43
campaign contributions, that’s the key. You crossed the
line, you committed a crime, committed a class C felony.
That’s what distinguishes 40.16.030 from all [20] the
provisions in 42.17.
THE COURT: If that’s the case, why, since we’ve
had the PDC in place since 1973, 33 years, why is this the
first criminal prosecution for this laundering situation?
Because I presume not only the matters that have reached
the paper with regard to this, that have been journalisti-
cally recorded, but I presume that the PDC has been
taking enforcement action for all of those 33 years with
regard to so-called laundered contributions and there has
never been a criminal prosecution for it.
If that’s the case, maybe there has been in some other
county that I’m not aware of.
MR. CARVER: No reported decisions on that, in
fact, there is very few recorded situations on 40.16.030 at
all. I think Hansen, Sanders and Price which was the first
one.
THE COURT: None of them deal with campaign-
type violations?
MR. CARVER: Correct.
THE COURT: Fish tickets and stuff like that?
MR. CARVER: Child support orders, I believe,
in Sanders so forth.
I really can’t say why except to think — one reason I
think is alot of times it is hard to find [21] these things,
alot of this may happen and never get reported, notwith-
standing the efforts of the elections board here in the city
App. 44
of Seattle or the public disclosure section in Olympia. I
think alot it probably never sees the light of day.
The second reason, I speculate, other than King
county, I work in the fraud division, as to Miss Brenneman
and Mr. Peterson, we see this all the time in other coun-
ties, they call us up when they have a fraud case, any kind
of large-scale theft or fraud they call us, they don’t have
the experience or institutional expertise to deal with the
cases, don’t have the resources. You get outside of King
county, maybe Pierce County, Snohomish County, Spokane
County, very hard to have resources, and it’s a matter of
discretion, you figure I have other things to do, this is an
elected prosecutor, I'll deal with this civilly and let the
PDC, whatever county office deal with it, I think. I’m only
speculating, I don’t know the answer to that.
On the specific to general defense the defense is
urging the court to adopt, I think we’ve already discussed
the fact that there is no case, not in this state, not in any
other state, not in any federal case where a court has held
that a criminal [22] case and a civil case are concurrent,
which is the basis for the specific versus general analysis,
and of course leaving to the statutory interpretation the
legislature obviously only intended to punish with this.
There no case considered a criminal statute and civil
statute concurrent as the defendants urge in this case.
Talking about Hansen, I submit, and I’m not going to
go into the details in Hansen, I've know - read — dis-
cussed. Mr. Leinbach talks about the legislative history
that then Circuit Judge Scalia went through in Hansen. |
think it’s clear whatever history he went through, he
based it on the principal of repeal by implication in the
face of the statute not only legislative history and, in fact,
App. 45
Hansen, over a hundred congressmen signed a friend of
the court brief led by Senator Hatch saying Ethnics in
Government Act was not meant to apply to a prosecution
under 18 USC 1001, false statement statute, basically the
federal analog to 40.16.030.
Few more points here. The other point about repeal by
implication is the conflict.
THE COURT: The what?
MR. CARVER: The conflict. The defense is
urging that there’s this - even under statutory [23} impli-
cation by repeal the court can avoid that principal by
finding irreconcilable conflict between — I submit there is
no conflict in 42.17.390 that statute begins by saying in
addition to any other remedies provided by law. The
defense says that limited to civil remedies not criminal
remedies.
Even so, the point is it’s not even exclusive as to civil
remedies — how can it possibly be read as excluding any
criminal penalties. In fact, as Circuit Judge Scalia said in
Haasen - that same point was brought up because there is
a statute in the federal election campaign — section — Title
2 of United States Code, Section 706 authorized the US
attorney general to bring a civil action similar to — and the
DC Court of Appeals concluded there is no difficulty in
applying both 18 USC section 1001 — and to USC 706 and
I submit the same thing should apply here.
There is no conflict between the long-standing statute
pass in the 1909 — the defendants were warned and it’s
been on the books since then and the provisions of 42.17,
that being the case there is no conflict. | think the provi-
sions of repeal by implication should control here.
App. 46
Also one more factor on that. As the Washington
courts have said, if you got a repealer in [24] statutory
scheme, as we do here in 42.17, you have a repealer that
makes the disinclination to define repeal by implication
even stronger. As I cited in the my response, there is a
repealer, it repeals specific statutes in the Revised Code of
Washington, does not repeal 40.16.030.
Under all those circumstances, I urge the court to
deny the motion to dismiss.
THE COURT: Mr. Leinbach?
MR. LEINBACH: Of course, in I-276 it included
the exact statutes that used to prescribe the public disclo-
sure-type of actions and so it put those in as repealing. But
it also went further and said in case of conflict, we govern.
It couldn’t throw out every other statute so it made the
practical decision to say if there a conflict, we govern.
Quickly on Hansen, again. Two things. One is there no
provision like that in the Hansen case and, two, Scalia,
himself, said if the word “remedy” is used, remedy means
additional civil remedies, it does not — he says it says in
their case that they cite that remedies does not mean a
criminal penalty or criminal sanction.
Finally, Your Honor, the state mentioned Price, and
I'm glad they did, I'd forgotten to mention [25] it on my
brief but Price, when it found that they could bring a cause
of action like this under 40.16, the court specifically said
we are not cited to any statute within the gaming code nor
any regulations providing penalties for ticket violations.
This appears to be the reason the state relies upon RCW
40.16 for charges on the steelhead ticket. That because
App. 47
there wasn’t anything else, the court said you can bring a
40.16 case.
Completely different here where there is something
occupying the field and specifically covering the prescribed
conduct in saying you can only do so civilly. I think Your
Honor’s question to Mr. Carver was the essence of this,
why now, why is it that now the state is choosing to ignore
the penalties provisions of 42.17 when it hasn’t in the past
and we believe, Your Honor, that they should have to and
should bring civil penalties and civil enforcement action
against the defendant so the public has the right to know.
THE COURT: I'll rule on the first motion now.
This matter comes before the court on a motion of the
defense with regard to all the counts against all the
defendants. I’m going to grant the [26] motion to dismiss
in motion number one.
In 1973 the Public Disclosure Act was implemented
after being passed in an initiative process in 1972, and the
initiative basically constituted a comprehensive statute
providing for a series of prohibited acts and requirements
on political candidates and contributors, and established a
reporting system through the public disclosure commission
and also passed certain enforcement mechanisms within
the statute that involved some compensatory remedies and
some punitive sanctions. And as I said, the initiative was
comprehensive and treated the entire subject area of
political contributions to local and state-wide campaigns.
Now I think the specific versus general rule is a rule
that applies here. Now, the interesting thing about this
case is as far as I know, | think neither the prosecution or
the state have pointed to any Appellate court decisions
App. 48
that have dealt with the application of the specific versus
general rule with regard to a criminal and a civil statute.
As far as I know this is the first case that comes before a
court that may well find its day into the Court of Appeals
with regard to this subject. I think it’s a very significant
subject.
[27] Here I think it is significant that the initiative,
itself, provides for punitive sanctions and it’s of the nature
of defining what in some other laws are called infractions
and provides for sanctions that are essentially fines that
may be imposed by the PDC and, of course, there’s an
appeal right by anybody aggrieved from the decision of the
administrative agency to the court system.
Now, here I think that the — because of the compre-
hensive nature of the public disclosure law dealing with
contributions and reporting and specifically with regard to
the precise charges that are before this court, which is
individuals reimbursing other individuals to make contri-
butions to campaigns and then submitting information
that these contributions are only being made in the name
of the so-called pass through people. That is the specific
subject that is dealt with very specifically in the statute
and it is clear that it is prohibited, and it’s prohibited in
order to give meaning to the disclosure requirements that
will let everybody see, through the public disclosure
commission., who is contributing to what candidate and
how much.
And all of that information now-a-days, 33 years after
the passage of the act, is available [28] almost instantly to
the public through the public disclosures systems Web site
and the legislation accomplished its goal of transparency
in campaigns.
App. 49
Again, for the reasons that I’ve indicated, I do find
that the general versus specific rule does apply in this case
and in this circumstance it precludes the state from
criminal prosecution under the statute originally passed in
1909, which is the subject matter of all of these counts
against the defendants.
So I am going to dismiss on that ground and that
ground alone.
Now, I will sign an order to that effect. I want to
indicate to you I know that the general doctrine is that
with regard to the remaining motions that generally if the
court acts on one, it should not deal with the others. And I
recognize that this is a clearly appealable issue by the
state and, frankly, I think the trial court would be well
served with some appellate instructions with regard to
this novel issue, and I’m not going to rule on the other
three grounds advanced by the defense, although I want to
say on the record that my strong inclination, based on my
reading of the memoranda that have been submitted, is
that none of those other three motions have merit [29] and
my inclination based on the memoranda was to deny
those.
I’m not ruling on them and I recognize that for the
purposes of the record that has no bearing on how the
Court of Appeals may look on it, they would not review, I’m
sure, the ones that I haven’t ruled on.
Counsel, I'll sign an order to that effect. I'll hear from
Miss Brenneman if you would like to make any points and.
MS. BRENNEMAN: Making a motion at this
juncture the defense be ordered by the court to turn back
to the state every shred of discovery pending the appellate
App. 50
resolution of this matter. We do not want — we have a
reason for that. I think it’s important that we keep track of
it, if we start over at some other time with new counsel
that we have full sets to give instead of having to recoup
it. None the factual bases on this case will impact their
ability to deal with the appeal and some of the sensitive
materials that were turned over including inquiry judge
subpoenas and court orders of special inquiry judge, those
should be in the possession of the prosecuting attorneys
until were are scheduled for the, trial in this matter.
[30] THE COURT: When you talk about every
shred of discovery, you have to understand I’m not aware
of all the papers exchanged. I’ve been involved in some
rulings, I’m not aware of the volume of the material you’re
talking about or the nature, let me -
MS. BRENNEMAN: I would be sensitive to the
fact they may need time to do this and may separate out
any materials that constitute —
THE COURT: Let me ask this because this is
something I would ask Mr. Wolfe, anyway, so I might as
well hear your comment on it now.
Normally when we have a situation like this, we deal
with it with a protective order of some kind requiring that
the materials be protected so that if there were copies
retained, we would make sure they would not be distrib-
uted to persons not authorized to receive them inconsis-
tent with the orders of court, and things like that, but still
they would be kept together so that if, for example, this
matter does go back to the trial court, that there would be
a consolidated record.
App. 51
Would a protective order be adequate for the prosecu-
tor’s interest? I presume they don’t have the originals.
MS. BRENNEMAN: No, they have copies.
[31] Because the material is sensitive and because it deals
with some very highly public materials and because life is
uncertain, and while the best intentions of the people
before this court I do not impugn in any way, shape, or
form, they may not — by the time this thing goes through
the appellate process, I'll be grayer, things can happen,
and I’ve had occasion to have full sets of discovery for
longer — offices get moved, I’ve lost material when other
offices moved, it happens.
I think it’s going to be more safe in our hands and
we'll be in no position to complain if it happens in our
hands and I would keep it sealed and keep it with the
names of the attorneys on it and returned to them if we’re
successful in the Court of Appeals.
MR. WOLFE: Agree to a protective order. I
maintain comprehensive files, I have closed files that are
complete. My fee agreement advises clients that I main-
tain this material, depending upon the jurisdiction, for
between three to five years after the conclusion of case and
there is a reason for it, because if other litigation ensues,
they need complete files.
Second, the suggestion that — the first [32] suggestion
that they don’t want it disseminated because of the IJ
material, the IJ issued orders, authorized the dissemina-
tion of this material to a number of other entities, and to
suggest that officers of the court can’t be trusted to main-
tain the confidentiality of that when issued to other officers
of the court or individuals who are not is preposterous,
App. 52
there is no justification for it. I’ve never heard of such a
procedure.
If the court wants us to shred it, we'll shred it and Ill
file a certification to that extent. Then we can start all
over with discovery, which is going to delay the start up of
this case.
The way I work, I take notes, make comments in the
margins, and I am not prepared to turn over work product,
sealed or otherwise, to the state.
THE COURT: Does anybody on behalf of any of
the other defendants want to be heard on this matter?
MR. HANSEN: Is the state asking we destroy
our copies because we always keep the originals complete
and make working copies, or does the state want the
originals back?
MS. BRENNEMAN: I get a protective order for
the working copies and get the originals back and have a
full set in case Mr. Conte decides —
133] MR. WOLFE: She has a full set.
THE COURT: Were the originals of fhese
documents turned over to any of the defendants?
MS. BRENNEMAN: No.
MR. HANSEN: I meant the original copy.
MS. BRENNEMAN: Original copy is expensive
and time-consuming and we have limited resources. If I
have to make four more sets of copies, it will be an expense
to the state. This case is expensive, it’s not reasonable to
the state to ask them back, these attorneys win the Lotto,
App. 53
decide to retire or moving vans get lost or have a terrorist
attack, I need to have a feeling that we have control of the
material so it can be turned over, we can get on the with
the case quickly.
THE COURT: I’m not going to rule on this today,
I want to give you a chance to discuss whether a suitable
protective order could be put in place and if you can’t agree
on this, then I'll rule on this motion and hear anything
else you want to say.
But this wasn’t contemplated today, I think people
ought to have time to reflect on the issue and whether
there are reasonable ways in which to protect what the
prosecution has indicated but also protect the rights of
defendant.
[34] Now, one thing that occurs to me and I’m sure
occurs to you, as I said, I think an appeal here by the state
is allowed and I think this is the type of case that can be
reviewed, frankly, very quickly in the Court of Appeals
because there is a limited record, there is no trial record
here and I’ve ruled on strictly legal grounds.
So I would think that — and I think that there is a
good argument that could be advanced by the state that
this is a matter of significant public interest, that it might
even be able to obtain accelerated review and with that in
mind I think a protective order that would essentially seal
all the documents that defense ..as in some way and
provide for its safekeeping would be appropriate. I think
there could be a protective order that could be crafted,
we've done it in civil cases where the materials from each
of these offices could be sealed and placed in a place that
was secure and was not going to be moved by moving van
or anything like that, and that the order could provide it
App. 54
wouldn’t be moved unless with court order and designate
where it was to be kept. You can keep things like this in
safe deposit box if you want to go to that extent.
But Id like to give you all a chance, those [35] of you
who are familiar with this case, to try to work something
out that will protect all of your legitimate interests and if
you can’t resolve it within a week, the state is welcome to
file a motion with the court and I'll hear from you again.
MS. BRENNEMAN: Thank you. we'll be able to
work something out, hopefully. My colleague and I would
like the court to rethink the idea, and Ill let Mr. Peterson
address it, the other issues.
MR. PETERSON: I’m not sure if there is any
objection, I think it would be — I’m Scott Peterson for the
prosecutor’s office. If we had rulings on each issue not
necessarily today but in time to take them up on appeal
and resolve them all at one time.
THE COURT: You know the problem that I have
is that there is alot of case law that says that when —- many
of these arguments are constitutional and there is a long
doctrine, well-established, that the court should not reach
the constitutional question if it disposes of a case on non-
constitutional grounds and | have not ruled on a constitu-
tional issue under the state or Federal Constitution today.
MR. PETERSON: I believe that rule is designed
for appellate courts so they are not unnecessarily reaching
constitutional issues that wind [36] up in a published deci-
sion when it doesn’t have to, be reached in a trial court’s
decision. If there are pending motions that can be resolved
on appeal, I’m sure the court of Appeals appreciate this, too.
If we take them all at once, we can resolve them all.
7
App. 55
My thought is this: I understand you may have
formed some thoughts after reading the briefs and consid-
ering them, how you would rule. You might not be the
judge when we come back and another judge may decide
one of the other issues they raise and one that has merit
and might dismiss the case and have sequential appeals
on all the issues. I hope that defense counsel, too, would
like to have all the issues resolved at once.
My proposal is this: We could continue and have brief
argument on them today, all agree, maybe let you decide
them on the briefs. We could come back another day.
THE COURT: Why don’t we take a brief recess
and let me give you an opportunity to discuss this among
counsel, see if you — because | think this is probably
unanticipated. I think Mr. Peterson’s suggestion is one
that deserves attention and might well serve the interest
of defense, as well as the state. But I want to give you a
chance to think about [37] that and talk about it and see
whether that’s something you can agree on.
MR. WOLFE: Could I make a suggestion? I don’t
mean to belabor, I’m not sure all these attorneys are going
to be able to huddle, the defense is going to want to huddle
separately and discuss, work through the issues and try to
get you an answer this morning.
What I would suggest is that the written order of
dismissa! that the court is indicated it will sign be delayed
for ten days, that we try to work through those issues and
if we can't, then the court, I guess, we'll come back on the
27th or 28th, if we can, and you can decide how we're
going to proceed. But at this point the court dismissed it
and indicated inclinations not to proceed, which I agree
with but we haven't had a chance to think it through.
App. 56
THE COURT: What about that Mr. Peterson?
MR. PETERSON: Sounds good. If we could
choose a date now?
THE COURT: Go off the record.
(Off-the-record discussion)
THE COURT: We have discussed off the record
scheduling with regard to the issues we just been discuss-
ing and we set Friday March 10, 9:30 in the [38] morning
for this matter to be brought before the court.
Again, if the parties can reach agreement on this,
although I’m conscious of the case law that | indicated and
the general doctrine that I mentioned, I think it would be
in potentially the interest of all concerned to have all the
issues ruled on so there could be an appeal, for example, if
the defense or prosecution wanted to take an appeal from
any of the court’s proposed ruling with regard to defense
motions two, three, and four.
Thank you.
(Adjourned)
(39] STATE OF WASHINGTON _ )
COUNTY OF KING )
I, James D. Lavielle, RPR, an Official Court Reporter
for the Superior Court, County of King, State of Washing-
ton, hereby certify that the foregoing comprises a full, true
and correct transcription of my stenographic notes taken
in the above-entitled cause.
App. 57
Dated this 17th day of February, 2006.
OFFICIAL COURT REPORTER
James D. Lavielle, RPR,
CSR 1991
App. 58
THE SUPREME COURT OF WASHINGTON
STATE OF WASHINGTON, )
= ; ORDER DENYING
, MOTION FOR
JOHN GILBERT CONTE; FRANK ) RECONSIDERATION
I .
PRANK FRANCIS COLACURCIO ) (Filed Jun. 11, 2007)
SR., and MARSHA MARIE
FURFARO, .
Respondents. )
The Court having considered the Motion for Reconsid-
eration;
Now, therefore, it is hereby
ORDERED:
That Respondents’ Motion for Reconsideration is
denied.
DATED at Olympia, Washington this llth day of
June, 2007.
For the Court
/s/ Gerry L. Alexander
CHIEF JUSTICE
159 Wn.2d 797
App. 59
Seattle Municipal Code
SMC 2.04.150 Intent of chapter - Interpretation -
Construction.
A. Itis the public policy of the City:
1. That political campaign contributions and expenditures
be fully disclosed to the public and that secrecy in the
sources and application of such contributions be avoided;
2. That the people have the right to expect from their
elected representatives the utmost of integrity, honesty,
and fairness in their dealings;
3. That the people shall be assured that the private
financial dealings of their public officials, and of candi-
dates for those offices, present no conflict of interest
between the public trust and private interest;
4. That our representative form of government is
founded on a belief that those entrusted with the offices of
government have nothing to fear from full public disclo-
sure of their financial and business holdings, provided
those officials deal honestly and fairly with the people;
5. That public confidence in municipal government is
essential and must be promoted by all possible means;
6. That public confidence in municipal government can
best be sustained by assuring the people of the impartial-
ity and honesty of the officials in all public transactions
and decisions;
7. That it is desirable to have legislation at the municipal
level complementary to the concept of disclosure estab-
lished in Initiative 276 (RCW Chapter 42.17);
App. 60
8. That small contributions by individual contributors
are to be encouraged, and that not requiring the reporting
of small contributions may tend to encourage such contri-
butions;
9. That the public’s right to know of the financing of
political campaigns far outweighs any right that this
matter remain secret and private; and
10. That, mindful of the right of individuals to privacy
and of the desirability of the efficient administration of
government, full access to information concerning the
conduct of municipal government must be assured as a
fundamental and necessary precondition to the sound
governance of a free society.
B. The provisions of this chapter shall be liberally
construed to promote complete disclosure of all informa-
tion respecting the financing of political campaigns so as
to assure continuing public confidence of fairness of
elections, and so as to assure that the public interest will
be fully protected. In promoting such complete disclosure,
however, this chapter shall be enforced so as to ensure
that the information disclosed will not be misused by
arbitrary and capricious purposes and to ensure that all
persons reporting under this chapter will be protected
from harassment and unfounded allegations based on
information they have freely disclosed.
~ ©. Further, it is the intent of the Council that this chapter
be interpreted and applied consistent with the de minimus
maxim, that inadvertent minor viclations of this chapter
may be corrected and cured without full hearing in a
manner consistent with the spirit and intent of this chapter.
App. 61
Seattle Municipal Code
SMC 2.04.290 Identification of contributions and
communications.
A. No contribution shall be made and no expenditure
shall be incurred, directly or indirectly, in a fictitious
name, anonymously, or by one person through an agent,
relative, or other person in such a manner as to conceal
the identity of the source of the contribution or in any
other manner so as to effect concealment.
B. 1. All audio and video broadcast political advertising,
whether relating to candidates or ballot propositions, shall
include the sponsor’s name. All other political advertising,
whether relating to candidates or ballot propositions, shall
include the sponsor’s name and address. Political advertis-
ing paid for by someone other than an agent of the com-
mittee that benefits from the advertising, i.e., in-kind
contributions, must state “paid for by ...” followed by the
name and address of the person who paid for the advertis-
ing, and “sponsored by” followed by the name and address
of the committee(s) that will benefit from the advertising.
The use of an assumed name shall be unlawful.
2. In addition to the materials required by subsection Bl
of this section, all political advertising undertaken as an
independent expenditure by a person or entity, other than
a bona fide political party as defined in RCW 42.17.020(5),
must include the following statement on the communica-
tion “NOTICE TO VOTERS (Required by law): This
advertisement is not authorized or approved by any
candidate. It is paid for by (name, address, city, state).” If
the advertisement undertaken as an independent expendi-
ture is undertaken by a nonindividual, other than a bona
fide political party as defined in RCW 42.17.020(5), then
App. 62
the following notation must also be included: “Top Five
Contributors,” followed by a listing of the names of the five
persons or entities who or which, during the twelve (12)-
month period before the date of the advertisement, made
to the sponsor of the advertisement the largest contribu-
tions reportable under this chapter.
3. The statements and listings of contributors required
by subsections B1 and B2 of this section shall:
a. Appear on the first page or fold of the written commu-
nication in at least ten (10)-point type, or in type at least
ten (10) percent of the largest size type used in a written
communication directed at more than one (1) voter, such
as a billboard or poster, whichever is larger;
b. Not be subject to the half-tone or screening process;
c. Be set apart from any other printed matter; and
d. Be clearly spoken on any broadcast advertisement.
Seattle Municipal Code
SMC 2.04.370 Mandatory limitations on contribu-
tions.
A. No person shall make a contribution to any candidate
for Mayor, member of the City Council, or City Attorney of
the City, except in the election cycle for that candidate as
defined in Section 2.04.010(7).
B. No person shall contribute more than Six Hundred
Dollars ($600) to any candidate for Mayor, member of the
City Council, or City Attorney of the city, in any election
cycle.
App. 63
C. Acandidate for Mayor, member of the City Council, or
City Attorney of the City, may only accept or receive a
campaign contribution during an election cycle as defined
in Section 2.04.010(7).
D. No candidate for Mayor, member of the City Council
or City Attorney of the City shall solicit or receive cam-
paign contributions of more than Six Hundred Dollars
($600) from any person in any election cycle; provided:
1. a. The limitations imposed by this section shall not
apply to a candidate’s contributions of his or her own
resources to his or her own campaign, or contributions to
the candidate’s campaign by the candidate or the candi-
date’s spouse of assets of their marital community;
b. The limitations imposed by this section apply to
contributions of the candidate’s spouse’s separate property;
2. The limitations imposed by this section shall not apply
to independent expenditures as defined by this chapter;
and
3. The limitations imposed by this section shall not apply
to the value of in-kind labor; and
4. The limitations imposed by this section shall not apply
to contributions consisting of the rendering of clerical or
computer services on behalf of a candidate or an author-
ized political committee, to the extent that the services are
for the purpose of ensuring compliance with City, county,
or state election or public disclosure laws.
E. Adjustment Index.
1. In March of each even-numbered calendar year, the
Commission shall promulgate a rule in accordance with
App. 64
Chapter 3.02 of the Seattle Municipal Code. This Rule
may increase the dollar amount in subsection A based on
changes in economic conditions as reflected by the Implicit
Price Deflator of the United States Domestic Product as
published by the United States Department of Commerce
Bureau of Economic Analysis (IPD). If application of the
IPD wouid result in a decrease in the dollar amount, the
dollar amount shall remain unchanged.
2. The new dollar amounts established by the Commis-
sion shall be determined by multiplying the base amount
provided in this section (Six Hundred Dollars $600)) by the
percentage change in the most recently published IPD
since January 1, 2000. The resulting amount shall be
added to the amount derived from the multiplication of the
base amount, and the amount resulting from that calcula-
tion shall be rounded to the nearest whole dollar amount
that can be divided by fifty (50). In cases where the un-
rounded amount derived from this procedure is exactly
Twenty-five Dollars ($25) different from the two (2) near-
est numbers evenly divisible by Fifty Dollars ($50), the
amount shall be rounded up to the next number evenly
divisible by Fifty Dollars ($50). The new dollar amount
shall become effective May lst of the even-numbered
calendar year. Once adopted, any increase in the contribu-
tion limit shall be effective for all election cycles that have
not ended by May Ist of that even-numbered year.
3. This subsection shall expire six (6) years after the
effective date of the enabling ordinance.’
’ Editor’s Note: Ordinance 120321] was passed by the City Council
April 9, 2001
App. 65
Seattle Municipal Code
SMC 2.04.500 Civil remedies and sanctions.
A. 1. Upon determining pursuant to Sections 2.04.070
through 2.04.090 that a violation has occurred, the Com-
mission may issue an order requiring the party to take
particular action in order to comply with the law, and in
addition, or alternatively, may impose sanctions up to Five
Thousand Dollars ($5,000) for each violation.
2. Upon determining that a contribution was illegally
made or accepted, in addition to the remedies in subsec-
tion /.1, the Commission may order the return of a contri-
bution illegally made, and impose a penalty of two (2)
times the amount of a contribution illegally made or
accepted by a person who violates Section 2.04.180,
2.04.200, 2.04.210, 2.04.215, 2.04.240, 2.04.290, 2.04.300,
2.04.370, or 2.04.480.
3. Upon determining that a report was filed excessively
late, in addition to the remedies in subsection Al, the
Commission may impose a penalty of two (2) times the
amount of each deposit or expenditure for each deposit or
expenditure that was reported excessively late. A report is
excessively late if it was due more than twenty-one (21)
days before the election in which the candidate or ballot
proposition appeared on the ballot, but was not filed at
least twenty-one (21) days before that election. A report is
also excessively late if it was due within twenty-one (21)
days before the election in which the candidate or ballot
proposition appeared on the ballot, but was not timely
filed.
4. In addition to the actions in subsections Al, A2, and
A3 above, the Commission may forward the determination
App. 66
of violation to the Seattle City Attorney or the King
County Prosecutor for prosecution. If the court finds that
the violation of any provision of this chapter by any
candidate or political committee probably affected the
outcome of any election, the result of the election may be
held void and a special election held within sixty (60) days
of such finding. Any action to void an election shall be
commenced within one (1) year of the date of the election
in question. It is intended that this remedy be imposed
freely in all appropriate cases to protect the right of the
electorate to an informed and knowledgeable vote.
B. Whether or not there is an administrative determina-
tion as provided in subsection A, the violation or failure to
comply with the provisions of Sections 2.04.160 through
2.04.290 (regarding campaign reporting), Section 2.04.370
(regarding contribution limitations) or Section 2.04.310 of
this chapter (regarding political signs) shall constitute an
infraction, not subject to the Seattle Criminal Code, for
which a monetary fine, not to exceed Five Thousand
Dollars ($5,000), may be assessed by a court, however, a
person or entity who violates Section 2.04.370 may be
subject to a civil fine of Five Thousand Dollars ($5,000) or
be required to return the illegal contribution and pay a
penalty of two (2) times the amcunt of the contribution
illegally made or accepted, whichever is greater. Violation
of the ordinance and existence of an infraction may be
proven by a preponderance of the evidence and need not be
proven beyond a reasonable doubt. An action seeking to
establish the fact of an infraction and imposition of a
monetary fine under this section may be commenced by
the City Attorney at a request of a majority of the Com-
mission.
App. 67
C. Any candidate who fails to comply with the require-
ments of Chapter 2.04 of the Seattle Municipal Code or
conditions of his/her campaign contract shall be ineligible
to receive further such. funds until in compliance. Any
candidate who exceeds the expenditure limitation for
which he/she has contracted shall immediately return to
the appropriate City account Three Dollars ($3) for every
One Dollar ($1) he/she has overspent in that election to a
maximum amount equal to the total sum of public funds
he/she has received.
D. The following persons shall be liable for violation of
this chapter, and shall be subject to all penalties, civil
remedies and sanctions set forth in this section, in Section
2.04.330, or elsewhere in this chapter:
1. Each candidate whose campaign has violated any
provision of this chapter;
2. Each officer of a ballot proposition political committee
or continuing political committee whose committee has
violated any provision of this chapter;
3. Each individual violating any provision of this chapter.
App. 68
RCWA 40.16.030. Offering false instrument for filing
or record
Every person who shall knowingly procure or offer any
false or forged instrument to be filed, registered, or re-
corded in any public office, which instrument, if genuine,
might be filed, registered or recorded in such office under
any law of this state or of the United States, is guilty of a
class C felony and shall be punished by imprisonment in a
state correctional facility for not more than five years, or
by a fine of not more than five thousand dollars, or by
both.
RCWA 42.17.080. Reporting of contributions and
expenditures - Inspection of accounts
(1) On the day the treasurer is designated, each candi-
date or political committee shall file with the commission
and the county auditor or elections officer of the county in
which the candidate resides, or in the case of a political
committee, the county in which the treasurer resides, in
addition to any statement of organization required under
RCW 42.17.040 or 42.17.050, a report of all contributions
received and expenditures made prior to that date, if any.
(2) At the following intervals each treasurer shall file
with the commission and the county auditor or elections
officer of the county in which the candidate resides, or in
the case of a political committee, the county in which the
committee maintains its office or headquarters, and if
there is no office or headquarters then in the county in
which the treasurer resides, a report containing the
information required by RCW 42.17.090:
App. 69
(a) On the twenty-first day and the seventh day immedi-
ately preceding the date on which the election is held; and
(b) On the tenth day of the first month after the election;
and
(c) On the tenth day of each month in which no other
reports are required to be filed under this section: PRO-
VIDED, That such report shall only be filed if the commit-
tee has received a contribution or made an expenditure
in the preceding calendar month and either the total
contributions received or total expenditures made since
the last such report exceed two hundred dollars.
When there is no outstanding debt or obligation, and the
campaign fund is closed, and the campaign is concluded in
all respects, and in the case of a political committee, the
committee has ceased to function and has dissolved, the
treasurer shall file a final report. Upon submitting a final
report, the duties of the treasurer shall cease and there
shall be no obligation to make any further reports.
The report filed twenty-one days before the election shall
report all contributions received and expenditures made as
of the end of the fifth business day before the date of the
report. The report filed seven days before the election shall
report all contributions received and expenditures made as
of the end of the one business day before the date of the
report. Reports filed on the tenth day of the month shall
report all contributions received and expenditures made
from the closing date of the last report filed through the
last day of the month preceding the date of the current
report.
(3) For the period beginning the first day of the fourth
month preceding the date on which the special election is
App. 70
held, or for the period beginning the first day of the fifth
month before the date on which the general election is
held, and ending on the date of that special or general
election, each Monday the treasurer shall file with the
commission and the appropriate county elections officer a
report of each bank deposit made during the previous
seven calendar days. The report shall contain the name of
each person contributing t
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.