Forster v. Pierce CountyForster v. Pierce County
In 1972, Carey L. Forster pleaded guilty to delivering a controlled substance in violation of the Uniform Controlled Substances Act (UCSA). He was sentenced to prison for the statutory maximum term of five years.
In August 1973, Forster was paroled. On January 12, 1977, almost a year before his maximum term was to expire, he received a “Final Discharge Restoring Civil Rights” from the Washington State Board of Prison Terms and Paroles. The Board granted the final discharge pursuant to Laws of 1961, chapter 187.
On January 7, 1994, Forster applied for a permit to carry a concealed firearm. He submitted his application to Pierce County’s Law Enforcement Support Agency (LESA), acting as designee of the Tacoma Police Department. LESA promptly denied his application
Nearly three years later, in January 1997, Forster filed a pro se complaint against Pierce County, the City of Tacoma, and two of their employees. He alleged that the defendants had unlawfully denied him a concealed pistol permit, violated
On May 20, 1997, the defendants counterclaimed for malicious prosecution. They also alleged that Forster’s claims were “frivolous and advanced without reasonable cause, requiring Defendants to incur costs and attorney’s fees in defending the action.”
On July 1, 1997, the City moved to dismiss Forster’s action pursuant to CR 12(b)(6). The trial court granted the motion and dismissed Forster’s complaint. The City then moved for summary judgment on its counterclaims, but failed to provide any factual support. The trial court granted the motion, finding among other things that the action had been filed without probable cause. The trial court ordered Forster to pay reasonable attorney fees and $1,000 in damages to each of the two employees, after which Forster filed this appeal.
In 1972, Washington law did not bar a person convicted of delivering a controlled substance from possessing a firearm.
2
Since 1983 it has barred such a person from possessing
Forster argues to us that these statutes do not affect his right to possess a firearm. This is true, he says, because he falls within a statutory exemption or, even if he does not, because it would violate the ex post facto clause of the constitution to apply 1983 legislation to him. He also assails the order that granted summary judgment on the counterсlaims for damages, costs, and fees.
I. STATUTORY EXEMPTION
Forster bases his first argument on (A)
A.
In 1994, when Forster applied for a permit,
A person shall not be precluded from possession of a firearm if the conviction or adjudication has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted . . . .[ 7 ]
Forster now argues that he has satisfied
Division Three recently considered the meaning of the phrase, “other equivalent procedure based on a finding of the rehabilitation of the person convicted.” In
State v. Radan,
Montana discharged a previously convicted defendant and restored his civil rights “the same as if the conviction had not occurred.”
8
Later, after Washington charged him with unlawful possession of a firearm based on the Montana conviction, he argued that the Washington charge was invalid because Montana had restored his civil rights based on a finding of rehabilitation. Disagreeing, Division Three held that
applies only when it is established that the procedure included a fact-finding inquiry resulting in a finding of the rehabilitаtion or innocence of the felon in question. The Montana restoration of rights determination here was automatic and was not based on any fact-finding procedure.[ 9 ]
Hoping to remedy this deficiency, Forster relies on
Any convicted person undergoing sentence in the penitentiary or the reformatory, not sooner released under the provisions of this chapter, shall, in accordance with the provisions of law, be discharged from custody on serving the maximum punishment provided by law for the offense of which such person was convicted, or the maximum term fixed by the court where the law does not provide for a maximum term. The board shall not, however, until his maximum term expires, release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release.[ 11 ]
Based on the second sentence of this statute, and on the fact that the Board discharged him a year before his maximum term expired, Forster argues that the Board necessarily found that “his rehabilitation has been complete.”
We reject this argument for several reasons. First,
B.
Forster also claims to have satisfied
Any person whose firearms rights have been restricted and who has been granted reliеf from disabilities by the secretary of the treasury under18 U.S.C. Sec. 925(c) or who is exempt under18 U.S.C. Sec. 921(a)(20)(A) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored except as otherwise prohibited by this chapter.
(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has bеen pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Forster apparently reasons that
Peculiarly, Forster relies on a version of
Any person whose firearms rights have been restricted and who has been granted relief from disabilities by the secretary of the treasury under18 U.S.C. Sec. 925(c) or who is exempt under18 U.S.C. Sec. 921(a)(20) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored.
This version might have a place in this case
if,
within 30 days of the defendants’ denial of his application for a
permit, Forster had sought judicial review of their decision to deny. In that event, he at least cоuld argue, by analogy to the budding permit cases,
14
that he had a vested right in the law and regulations that existed on the date of his application (January 7, 1994).
15
It is obvious, however, that he did not seek judicial review of the administrative denial; instead, he waited three years, then brought an
original action
for declaratory judgment or mandamus. As a result, he could not possibly have a right to apply a version of the statute that ceased to be effective more than two and a half years before he commenced the action, and he has failed to satisfy
II. EX POST FACTO
Forster argues that even if he has not satisfied
The United States Constitution provides that no state shall pass any ex post facto law. 16 The purрoses are “to assure that legislative Acts give fair warning of their effect,” and to restrain “arbitrary and potentially vindictive legislation.” 17
Whether a law is “ex post facto” turns on two basic questions: (1) Is the law “criminal” or “punitive,” rather than “civil” or “non-punitive”? (2) If the law is “criminal” or “punitive,” does it punish past or future conduct? 18 “Past conduct” means conduct occurring before the law’s effective date, while “future conduct” means conduct occurring after the law’s effеctive date. 19
If a law is not “criminal” or “punitive,” it can be applied to any conduct, either past or future, without violating the ex post
If a law is “criminal” or “punitive,” it can be applied to future conduct without violating the ex post facto clause. As the United States Supreme Court explained in McDonald v. Massachusetts, “The statute, imposing a punishment on none but future crimes, is not ex post facto.” 21
If a law is “criminal” or “punitive,” it cannot be applied to past conduct without violating the ex post facto clause. 22 Accordingly, the United States Supreme Court has repeatedly categorized as ex post facto:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a- crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.[ 23 ]
These concepts have been imprecisely expressed by say
ing that “A law violates the ex post facto clause if it: (1) is
In this case, the 1983 changes to
Even though the 1983 changes were criminal and punitive, they apply to future conduct, not to past conduct; thus,
Other jurisdictions are generally in accord. 31 So also are the commentators; discussing the analogous problem of habitual criminal statutes, LaFave and Scott state:
Some ex post facto questions of the increased-punishment type have arisen in connection with the passage of habitual criminal laws, which impose enhanced penalties for later offenses if the defendant has previously been convicted of one or more crimes. If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only the new crime B, which was committed after the statute was passed.[ 32 ]
Based on these authorities, we conclude that the 1983 changes to
III. COUNTERCLAIMS AND FEES
Forster argues that the trial court erred by granting the defendants’ motion for summary judgment on their counterclaims. The defendants did not respond in their briefs, and they conceded error at oral argument. A party seeking summary judgment has the initial burden of showing the absence of any issue of material fact, 34 and the defendants did not meet that burden here. We reverse the order granting the counterclaims.
Forster argues that the trial court erred by characterizing his complaint as frivolous and awarding reasonable attorney fees. As with the counterclaims, the
In any civil action, the court having jurisdiction may, upon written findings by the judge that the action . . . was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action. . . . This determination shаll be made upon motion by the prevailing party after a voluntary or involuntary order of dismissal, order on summary judgment, final judgment after trial, or other final order terminating the action as to the prevailing party. The judge shall consider all evidence presented at the time of the motion to determine whether the position of the nonprevailing party was frivolous and advanced without reasonable cause.
A lawsuit is frivolous when it cannot be supported by a rational argument on the law or facts. 35 The statute also requires the action be frivolous in its entirety, i.e., if any of the claims asserted are not frivolous, then the action is not frivolous. 36 Given the welter of statutes involved here, we cannot say the action is utterly frivolous. We reverse the order granting reasonable attorney fees.
The order dismissing Forster’s complaint is affirmed. The orders granting damages, fees and costs are reversed. Neither side shall receive fees or costs on appeal.
Houghton and Hunt, JJ., concur.
Review denied at
Notes
‘Clerk’s Papers at 178.
Laws of 1961, ch. 124, § 3.
Laws of 1983, ch. 232, § 2.
State v. Radan,
Id. at 658. The Attorney General has reached a similar conclusion on at least two occasions. 1993 Op. Att’y Gen. No. 10; 1988 Op. Att’y Gen. No. 10; cf. 1969 Op. Att’y Gen. No. 5 (antedating statutes in issue here).
While such opinions are not controlling, they can be given considerable weight.
Elovich v. Nationwide Ins. Co.,
Clerk’s Fapers at 27.
This section applies to felonies committed before July 1, 1984.
See
Compare Laws of 1955, ch. 133, § 11, with Laws of 1961, ch. 187, § 1.
Laws of 1992, ch. 168, § 1; Laws of 1994, 1st Spec. Sess., ch. 7, § 407.
See Noble Manor Co. v. Pierce County,
We do not imply that Forster has any such right. We have no occasion to consider that question.
Weaver v. Graham,
See Weaver,
Weaver,
Kansas v. Hendricks,
McDonald v. Massachusetts,
Calder,
Calder,
State v. Hennings,
Collins,
Weaver,
Collins,
In passing, we note that the reasoning in
United States v. Huss,
Id.
at 732;
accord, State v. Tully,
United States v. Karnes,
Forster relies on
Davis,
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.4(a) at 139 (1986).
See
Young
v. Key Pharms., Inc.,
Daubner v. Mills,
Biggs v. Vail,