THE CITY OF TACOMA, Respondent, v. THE STATE OF WASHINGTON, ET AL, Appellants.
No. 56836-7
En Banc.
September 12, 1991.
4. The trial court erred when it admitted evidence seized pursuant to the telephonic warrant, including the scales, Ziploc bags, memo with drugs, accounts book, and cash. This evidence must be suppressed because there is not a sufficient record of the magistrate‘s probable cause determination.
5. Defendant‘s conviction of possession of a controlled substance with intent to deliver is reversed and dismissed.
UTTER, DOLLIVER, SMITH, GUY, and JOHNSON, JJ., concur. BRACHTENBACH, ANDERSEN, and DURHAM, JJ., concur in the result.
Preston Thorgrimson Shidler Gates & Ellis, by Elizabeth Thomas, for respondent.
Katrin E. Frank on behalf of the Northwest Women‘s Law Center, amicus curiae for appellants.
UTTER, J. — The City of Tacoma filed a petition with the State Office of Financial Management asking to be reimbursed, pursuant to
A. The Domestic Violence Act.
In 1979, the Legislature enacted the domestic violence act.1 Laws of 1979, 1st Ex. Sess., ch. 105, codified as
B. RCW 43.135 .
In November 1979, the voters of the state of Washington passed Initiative 62. This initiative was intended to limit state tax revenues by tying increases in revenues to increases in state personal incomes. The initiative was codified as
The legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any taxing district unless the districts are reimbursed for the costs thereof by the state.
C. The Domestic Violence Prevention Act.
In 1984, the Legislature, apparently not satisfied with the effectiveness of the 1979 act, adopted the Domestic Violence Prevention Act. Laws of 1984, ch. 263, codified as
The Domestic Violence Prevention Act imposed several new duties on courts and peace officers. All court clerk‘s offices are required to make available simplified forms and informational brochures.
In addition, this act made various related amendments to the 1979 act. For example, it altered the definition of domestic violence and added four new crimes to the list contained in
In 1985, the Legislature made some amendments to the 1984 act concerning jurisdiction of municipal and district courts; realignment of parties and waiver of filing fees; and reimbursement of costs and fees by respondents. Laws of 1985, ch. 303, codified as
II
In January 1986, the City of Tacoma (the City), pursuant to
III
The State recognizes that the Domestic Violence Prevention Act imposes certain responsibilities upon local government, but contends that
The City responds that
Two issues are presented for review:
- Does the Domestic Violence Prevention Act create new programs or increased levels of service which require reimbursement pursuant to
RCW 43.135 ? - What costs are allowed under
RCW 43.135 ? (Did the trial court err in its award of damages?)
A
In order to answer the first issue, we must consider two arguments raised by the State: (1) that
The language of
The legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any taxing district unless the districts are reimbursed for the costs thereof by the state.
The State claims we should look to the voters’ pamphlet to ascertain the intent of the people. See Department of Rev. v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973) (material in the official voters’ pamphlet may be considered by the court in determining the purpose of a law adopted by a vote of the people). Because the intent of the people is clearly expressed in the statute, we do not need to look to the pamphlet. But even if we were to do so, there is nothing there to support the State‘s construction. The pamphlet provides:
The initiative, however, would prohibit the legislature from requiring local governments to offer new or expanded services unless the costs are paid by the state.
Clerk‘s Papers, at 115 (ballot synopsis, written by the Attorney General). The statement in support of Initiative 62 said that the initiative was drafted, in part, to “[p]rotect local governments from having to pay for programs mandated by the legislature.” Clerk‘s Papers, at 114. The Domestic Violence Prevention Act falls within the stated purpose.
There is nothing in the language of the statute, either as it appeared in the voters’ pamphlet or as it appears in
We have decided two cases involving
In State v. Howard, 106 Wn.2d 39, 722 P.2d 783 (1985), the Attorney General prosecuted a criminal case pursuant to
The State emphasizes the fact that in Howard we only ordered the State to pay the extraordinary costs of the prosecution, and not those normally paid by the County. The County, however, asked that the State pay only these costs. Likewise, in the present case, the Superior Court limited the City‘s right to reimbursement to those costs which were directly attributable to the new responsibilities imposed by the Domestic Violence Prevention Act.
In AGO 24, at 5 (1980), the Attorney General stated the statute requires reimbursement “where, and to the extent that, mandatory state legislation results in either new services to the general public or in an actual increase in local governmental services offered to the public in some measurable, quantifiable sense.” This idea was adopted by this court in Howard, 106 Wn.2d at 43. The benefit to the public here is measurable — there has been a significant increase in the reporting, prosecuting and handling of domestic violence complaints. The Domestic Violence Prevention Act increases the level of services to the public. Therefore, the State is obligated to reimburse the City.
We next consider whether the Domestic Violence Prevention Act was merely intended to streamline and render more efficient the 1979 act. The State bases this argu
There is some merit to the State‘s argument that the 1984 and 1985 acts were intended to “streamline” and “render more efficient” the 1979 act. The Law Center explains this argument more fully in its amicus brief. It states the Domestic Violence Prevention Act mandates police and court action which should have been carried out under the 1979 act, e.g., that permissive arrests are now mandatory, that domestic violence be treated as a crime, and that the notice which police officers should have been giving to victims concerning their rights and remedies is also now mandatory. The argument, however, fails to account for the new civil remedy, which did not exist under the 1979 act. Furthermore, the language in Seattle v. State, supra, may be distinguished on several grounds: it applies only to the particular legislation involved in that case; it is a prefatory remark, not a holding; and the legislation at issue in the present case does create an entirely new program for domestic violence.
The 1984 and 1985 acts do not simply mandate a response which should have been made earlier; rather, they create a “new program” and “increase the levels of service” within the meaning of
In Seattle v. State, supra, a 2-part test was used to determine when the State‘s obligation to reimburse local governments arises: (1) is the program or service a responsibility imposed by the Legislature; and (2) is it a new program or increased level of service under an existing program? 100 Wn.2d at 21. The Domestic Violence Prevention Act meets this test. The Superior Court found the act was a “new program” and that it “also increases the level of service to the public because its goal is the same, that is, to protect the rights of victims of domestic violence.” Report of Proceedings, at 11. We hold the Domestic Violence Prevention Act is a responsibility which is imposed upon the City by the Legislature, and that it is a “new program” and “an increased level of services under an existing program“. Therefore, we affirm the Superior Court‘s summary judgment that the State, pursuant to
B
Having decided that the Domestic Violence Prevention Act is a program intended to be paid for by the State pursuant to
increased levels of service to victims of domestic violence in that it mandated arrests, required advice of additional rights and created new programs by providing a civil remedy. . . . For those mandated services the State is responsible to reimburse the City of Tacoma. The State is not liable to reimburse the City for costs expended in the enforcement of criminal laws which were clearly in existence for the benefit of society as a whole, and victims in particular, prior to 1984.
Findings of fact and conclusions of law; Clerk‘s Papers, at 259.
Where the trial court has weighed the evidence, our review is limited to ascertaining whether the findings of fact are supported by substantial evidence and, if so, whether the findings support the conclusions of law and the judgment. Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432, 437, 545 P.2d 1193 (1976). A review of the court‘s findings of fact reveals there is substantial evidence to support the judgment.
With regard to the Domestic Violence Unit,4 the Superior Court found the costs of this unit which are reimbursable are: the costs of service of protection order petitions and other orders; the costs of the position which was added for the purpose of serving protection orders; and 20 percent of the cost of employing a Domestic Violence Advocate (finding she devoted 20 percent of her time to the implementation of the 1984-85 legislation). Other costs were denied due to lack of sufficient proof they were incurred solely because of the 1984-85 acts. Findings of fact and conclusions of law; Clerk‘s Papers, at 254-55. The
The State alleges the trial court erred in computing some of these costs and refers us to its request for modification, Clerk‘s Papers, at 236-38. It alleges the costs for Detective Hill were found to be $48,855. In fact, the court awarded $48,835. Oral decision, at 3; findings of fact and conclusions of law; Clerk‘s Papers, at 254. The State also argues the costs for Detective Hill should be reduced because he spent only one-half of his time on service of protection orders. Detective Hill testified that another full-time detective position was added to the Unit in 1984, and that the Unit as a whole devoted half of its time to service of protection orders. Report of Proceedings, at 16-21. The Superior Court‘s oral ruling provides “reimbursement for Detective Hill or the equivalent of his position“. Oral decision, at 3. The language contained in the findings of fact (above), indicates the trial court‘s award of costs for Detective Hill was not limited to Hill alone, but includes costs expended for service of protection orders by any detective within the Unit. We affirm these costs.
Finally, the State argues the court made an error in the computation of Officer Revelle‘s salary, which was computed to be $219,001. The State claims the salaries for this position between the years 1985 through 1988 total $189,989. The City claims the total should be $219,173.50. There is evidence in the record to support both figures. The record further reveals the court adjusted baselines and took into account benefits, longevity pay and overhead costs. The court explicitly stated it was not allowing any costs for 1989. Oral decision, at 3. We find no reversible error in the Superior Court‘s computation and affirm the total costs awarded for the Domestic Violence Unit.
The City claimed $289,849 in jail costs through December 31, 1988. With regard to these costs, the court found, because these costs and the identification costs are “potentially criminal matters contemplated under the
The court followed the same procedure for identification costs. It adjusted the baseline in order to limit these costs to those actually attributable to the Domestic Violence Prevention Act. Clerk‘s Papers, at 255-56; oral decision, at 5-6.
The Law Enforcement Support Agency (LESA) receives and dispatches phone calls and the patrol unit investigates, gives advice and makes arrests. The court found that other than the additional advice and the mandatory arrests, there was nothing being done which was not already required under the 1979 act. Oral decision, at 8. While there was certainly an increase in calls, some of this increase was due to an increase of public awareness and a change in society‘s attitude (e.g., victims more certain of police assistance). Oral decision, at 8. The court emphasized that the State should not be responsible for costs due to publicity. In order to limit the LESA and patrol costs to those attributable to the “newly imposed responsibilities“, the court, based on a percentage of time spent, awarded 4 percent of total costs for 1984 (the last 4 months of the year following the implementation of the act); and 12 percent for each year from 1985 through 1988. Clerk‘s Papers, at 256; oral decision, at 7-12.
With regard to the municipal court costs, the court allowed costs for the court commissioner‘s time which was actually spent on handling the petitions filed for civil protection orders (e.g., assisting people in filing petitions, receiving petitions, and scheduling hearings). The court based its award on the number of petitions filed, the time
The 1984 act authorizes the city attorney to assist victims who cannot afford a private attorney in prosecuting criminal sanctions for violations of protective orders. The court found:
Although the City Attorney‘s Office has hired additional staff and devoted considerable time to aspects of the domestic violence activities since 1984, there was inadequate evidence at the time of trial from which to ascertain by a preponderance of the evidence the dollar amount or percentage of the City Attorney‘s budget attributable to new levels of service required by the 1984-85 legislation.
Clerk‘s Papers, at 257-58. Ms. McCann (a city attorney), testified at trial there is no one in the office to handle such matters and so she did not advise victims of this particular right. Oral decision, at 14-15. Therefore, the court denied the city attorney‘s costs.
The court therefore ordered the State to reimburse the City for the following costs:
| A. Domestic Violence Unit | $301,445 |
| B. Jail Costs | 125,375 |
| C. Identification Costs | 12,891 |
| D. LESA and Patrol Costs | 107,383 |
| E. Municipal Court | 33,717 |
| F. City Attorney | -0- |
| TOTAL | $580,811 |
The proper measure for determining damages pursuant to
The Domestic Violence Prevention Act constitutes a “new program” and an “increased level of services” within the meaning of
BRACHTENBACH, DOLLIVER, ANDERSEN, DURHAM, SMITH, GUY, and JOHNSON, JJ., concur.
DORE, C.J. (dissenting) — The City of Tacoma claims that
In Seattle v. State, 100 Wn.2d 16, 24, 666 P.2d 359 (1983) and State v. Howard, 106 Wn.2d 39, 43, 722 P.2d 783 (1985) we conclude that the terms “programs” and “service“, as used in
The City proposes that the “new” definition of “domestic violence” contained in the 1984 Domestic Violence Prevention Act increased the level of service offered to the public. The definition of “domestic violence” contained in the Domestic Violence Prevention Act of 1984, however, includes no more than the conduct described in the domestic violence act of 1979. The 1979 act lists illustrative crimes that fall within the scope of “domestic violence“, but it also states that this list is not exclusive: “‘Domestic violence’ includes but is not limited to any of the following crimes.” (Italics mine.)
The City argues that the 1984 act expands the rights of victims of domestic violence. Under either the 1979 act or the 1984 act, the right of the victim is the same. The victim is entitled to maximum protection from abuse and impartial enforcement of the law against an aggressor, regardless of whether the aggressor is a member of the victim‘s family or household.
Similarly, the “expansion of advice given to victims” does not constitute a new program or increased level of service. The 1979 act required peace officers to cooperate with community service organizations with expertise in domestic violence, protect victims of violence, and “offer, arrange, or facilitate” victims’ access to medical treatment or to safe shelter.
The City claims that the issuance and enforcement of no-contact orders constitute a new program or increased level of service. Under the 1979 act, however, the court could prohibit the defendant from contacting his victim to protect the victim and prevent further aggression. Laws of 1979, 1st Ex. Sess., ch. 105, § 4(2). Moreover, the 1979 act made the violation of such orders a misdemeanor. The more explicit language of the 1984 act only modified the procedures to be followed when implementing a duty created in 1979.
The City argues that entering no-contact orders into a computer based criminal intelligence information system, as required by the 1984 act, is a new program or level of service.
Amendment of the domestic violence act, making arrest mandatory when an officer believes a crime of domestic violence has been committed, does not impose a new program or service on a taxing authority. The 1979 act authorized peace officers to arrest whenever they had probable cause to believe a crime had been committed. Laws of 1979, 1st Ex. Sess., ch. 105, § 3(3)(a). The mandatory language of the 1984 act only makes more explicit what the 1979 act permitted.
The City alleges that the new civil remedy that the 1984 act created, the petition for an order for protection, is a new program or level of service.
Finally, courts may take judicial notice of any public statute of this state. Gross v. Lynnwood, 90 Wn.2d 395, 397, 583 P.2d 1197, 96 A.L.R.3d 187 (1978). Appellate courts may also take judicial notice of “facts capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy and verifiable certainty.” Tyler Pipe Indus. v. Department of Rev., 96 Wn.2d 785, 796, 638 P.2d 1213 (1982) (quoting State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 779, 380 P.2d 735 (1963)). I take judicial notice of
| 1984 | $7,930,226.92 |
| 1985 | $8,218,626.75 |
| 1986 | $8,414,835.13 |
| 1987 | $9,189,212.53 |
| 1988 | $10,015,494.01 |
It is readily apparent that the City‘s revenues increased more than $2 million after 1984 and it received total revenues of $45,768,395.34 during 1984 through 1988. This money was available to the City of Tacoma to meet any cost it incurred complying with the Domestic Violence Prevention Act of 1984. The revenue the City accepted would more than cover either the $2 million that the City alleged it spent complying with the 1984 act, or the $580,811 the court awarded it.
I would reverse the trial court and dismiss.