# Petition for Writ of Certiorari — Conte v. Washington (No. 07-339) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1448%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## 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 deta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1448%3A1. Public record. Not legal advice.