In the Matter of the Personal Restraint of JENNIFER POWELL, Petitioner.
No. 45891
En Banc
November 15, 1979
92 Wn.2d 882
The judgmеnt of the trial court, holding the home rule charter provision unconstitutional, is reversed, the writ of mandate is quashed, and the case is dismissed.
ROSELLINI, STAFFORD, WRIGHT, BRACHTENBACH, DOLLIVER, HICKS, and WILLIAMS, JJ., and HAMILTON, J. Pro Tem., concur.
Jeffrey C. Sullivan, Prosecuting Attorney, and Catherine Lee Campbell, Deputy, for respondent.
The background and facts of the case can be summarized briefly as follows:
Pursuant to
[i]t is unreasonable to expеct an average person to continually research the Federal Register to determine what drugs are controlled substances under
RCW 69.50 .
Dougall, at 122.
(1) . . . The code reviser shall keep a permanent register of such rules open to public inspection.
(2) Emergency rules adopted under
RCW 34.04.030 shall become effective upon filing. All other rules hereafter adopted shall become effective upon the expiration of thirty days after the date of filing, unless a later date is required by statute or specified in the rule.
(Italics ours.)
Aside from the permanent register which is open to the public in the office of the Code Reviser, the only notice regarding promulgation of еmergency regulation appeared
[r]egulating the substances subject to the controlled substances act by adding and rescheduling certain named substances, amending WAC 360-36-100. Adding as new sections WAC 360-36-110, -120, -130, -140, and -150.
WAC Bulletin No. 181, at 3 (October 15, 1977-October 31, 1977).
The bulletin did not specify which drugs had been rescheduled or give the substantive content of the emergency regulations.2
Petitioner was arrested and charged with possession of Dalmane during the pendency of the emergency regulations. She pleaded guilty and was given a 5-year sentence. At the same time, her probation arising from a previous forgery conviction was revoked, and petitioner was sentenced to 5 years on the forgery conviction to run concurrently with the other sentence.
At the outset, we find that petitioner is not entitled to her requested remedy of release from custody. Petitioner claims that if she had not been unlawfully convicted of drug possession, her probation from the forgery charge would not have been revoked. We do not agree.
Contrаry to petitioner‘s contention, the record indicates that petitioner‘s probation was revoked for reasons independent of her conviction on the drug charge. Indeed, a bench warrant had issued for petitioner‘s arrest because of the violation of the terms of her probation prior to her arrest for possession of Dalmane. In his order revoking
Before dealing with the question of whether petitioner‘s conviction for possession of a controlled substance is constitutional, we must determine whether a prisoner bringing a personal restraint petition is entitled to relief when she is lawfully restrained under a concurrent sentence. Pursuant to RAP 16.3(a), relief formerly available by a writ of habeas corpus is now available by way of a personal restraint pеtition. A number of jurisdictions will not consider an application for such relief if the appellant will not be released from confinement because he is also held on a separate and valid conviction other than the one under attack. See People ex rel. Malinowski v. Casscles, 53 App. Div. 2d 954, 385 N.Y.S.2d 640 (1976); In re Bryant, 129 Vt. 302, 276 A.2d 628 (1971); Frazier v. Langlois, 103 R.I. 607, 240 A.2d 152 (1968). On the other hand, other jurisdictions will consider an application for relief as to an invalid sentence, even though the petitioner rеmains detained by virtue of other sentences. See State ex rel. Jackson v. Henderson, 260 La. 90, 255 So. 2d 85 (1971); Frizzell v. State, 238 So. 2d 67 (Fla. 1970); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975).
It is our opinion that release from confinement is no longer the sole function of the writ of habeas corpus. See Atkins v. Hopper, supra; see also Carafas v. LaVallee, 391 U.S. 234, 20 L. Ed. 2d 554, 88 S. Ct. 1556 (1968). We note that an unlawful conviction can serve as a restraint on liberty due to collateral consequences affecting one adjudged to be a habitual criminal. See
[a] petitioner is under a “restraint” if the prisoner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.
(Italics ours.) Therefore, we deem it appropriate to consider petitioner‘s claim that her restraint arising from the drug conviction is unlawful even though she must serve a lawful concurrent sentence.
Petitioner states two reasons why her conviction for the possession of Dalmane was unconstitutional. First, she contends that the procedure by which Dalmane was designated as a controlled substance afforded inadequate notice and thereby violated her due process rights. Second, she claims that the statute constitutes an unlawful delegation of legislative authority under
We agree with petitioner‘s contention that the procedure by which Dalmane was designated as a controlled substance afforded inadequate notice. We hаve traditionally required that citizens be given fair notice of conduct forbidden by penal statutes. See State v. Jordan, 91 Wn.2d 386, 588 P.2d 1155 (1979); State v. Dougall, 89 Wn.2d 118, 570 P.2d 135 (1977); State v. Martinez, 85 Wn.2d 671, 538 P.2d 521 (1975); Seattle v. Pullman, 82 Wn.2d 794, 514 P.2d 1059 (1973). This court recently restated the rule that “[s]tatutory language must convey a sufficiently definite warning of proscribed conduct when measured by common understanding and practice.” Jordan, at 389. See State v. Dougall, supra. We find the notice of
It is unreasonable to expect an average person to continually research the Federal Register to determine what drugs are controlled substances under
RCW 69.50 .
Dougall, at 122. We believe that it is even more unreasonable to expect an average person in this state to maintain continuous contact with the office of the Code Reviser in Olympia in order to determine which substances have been dеsignated as controlled. This means of notice is not one by which “a person of common intelligence can, with reasonable certainty, determine what substances are designated or rescheduled as controlled substances . . .“, possession of which is a felony. See Dougall, at 121.
Our conclusion is consistent with our ruling in Jordan, where we declared unconstitutional the legend drugs act,
Petitioner next argues that the legislature unlawfully delegated to the board the power to schedule Dalmane as a controlled substance, possession of which is a crime. Petitioner bases this contention on two grounds. First, she claims that the RCW provisions which authorized the board to classify drugs in the various schedules did not provide sufficient standards to guide administrative action, citing Miller v. Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963); State ex rel. Pruzan v. Redman, 60 Wn.2d 521, 374 P.2d 1002 (1962); and Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959).
She further claims that the authority to define the elements of a crime cannot be delegated to an administrative agency, relying on Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975), and Howell v. State, 300 So. 2d 774 (Miss. 1974). We agree with petitioner‘s conclusion that she is entitled to relief under the nondelegation doctrinе, but we base this conclusion on grounds other than those set forth by petitioner.
In contending that strict standards to guide administrative action are required to effect a lawful delegation, petitioner cites cases which have been superseded by this court‘s decision in Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972). See also State v. Crown Zellerbach Corp., 92 Wn.2d 894, 602 P.2d 1172 (1979); Polygon Corp. v. Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978); Lindsay v. Seattle, 86 Wn.2d 698, 548 P.2d 320 (1976). In Barry & Barry, the court rejected the requirement of strict standards demanded under the traditional nondelegation doctrine, having determined that the purpose of the nondelegation doctrine
Barry & Barry, at 161. See K. Davis, Administrative Law Treatise § 2.00 (Supp. 1970). Accordingly, in Barry & Barry, this court set out two requirements for the lawful delegation of legislative power to whiсh we still adhere:
First, the legislature must provide standards or guidelines which indicate in general terms what is to be done and the administrative body which is to do it. . . .
Second, adequate procedural safeguards must be provided, in regard to the procedure for promulgation of the rules and for testing the constitutionality of the rules after promulgation. See Jordan v. State Bd. of Ins., 160 Tex. 506, 334 S.W.2d 278 (1960). Such safeguards can ensure that administratively promulgated rules and standards are as subject to public scrutiny and judicial review as are standards established and statutes passed by the legislature.
(Italics ours.) Barry & Barry, at 163–64.
We hold that the delegation of authority under
In the cases of Barry & Barry and Washington State School Directors Ass‘n v. Department of Labor & Indus., 82 Wn.2d 367, 510 P.2d 818 (1973), this court reviewed challenges to the legislature‘s authority to delegate to administrative agencies the power to promulgate rules of general applicability. At issue in Barry & Barry was the lawfulness of the delegation of authority to the Department of Motor Vehicles to establish a schedule of maximum fees
This case presents an entirely different set of circumstances than that which was present in eithеr of those cases. The legislature has delegated to the board the authority to promulgate rules which supply the elements of felonies. For petitioner, the promulgation of one such rule has resulted in a 5-year prison sentence and the social and civil burdens resulting from a felony conviction. In short, the outcome of this rule making has affected interests of petitioner which far exceed those economic interests at stake in Barry & Barry and Washington State School Directors Ass‘n.
To determine whether a delegation of power meets the second criterion regarding procedural safeguards in Barry & Barry, it is imperative to consider the magnitude of the interests which are affected by the legislative grant of authority. “For the desideratum should be safeguards proportionate to the grant; the larger the grant, the greater thе safeguards required.” Amsterdam v. Helsby, 37 N.Y.2d 19, 36, 332 N.E.2d 290, 371 N.Y.S.2d 404 (1975) (Fuchsberg, J., concurring).
Our view reflects the approach taken by the United States Supreme Court that the procedural safeguards required to prevent arbitrary administrative action vary, depending on the context. See L. Tribe, American Constitutional Law §§ 10–13 (1978). In Mathews v. Eldridge, 424
“[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). “[D]ue prоcess is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. Arnett v. Kennedy [416 U.S. 134], supra, at 167-168 (Powell, J., concurring in part); Goldberg v. Kelly [397. U.S. 254], supra, at 263-266; Cafeteria Workers v. McElroy, supra, at 895.
See also H. Friendly, “Some Kind of Hearing“, 123 U. Pa. L. Rev. 1267, 1278 (1975).
In contrast to the great personаl interest placed at stake under the challenged statutory and regulatory scheme, we find the procedural safeguards afforded in this case to be almost nonexistent. Because the rule classifying Dalmane as a controlled substance was promulgated as an emergency rule, the board dispensed with notice and public comment procedures which are normally afforded in thе rule-making process. Theoretically, a party could petition for the repeal of a rule after its promulgation pursuant to
Because of our holding that the statutory scheme presents an unlawful delegation on the ground of inadequate procedural safeguards, we decline to address рetitioner‘s claim that the authority to designate the elements of a
The petition is granted as to petitioner‘s drug possession conviction and denied as to her forgery conviction.
UTTER, C.J., and ROSELLINI, WRIGHT, HOROWITZ, DOLLIVER, and HICKS, JJ., concur.
STAFFORD, J. (concurring)—Lest there be some misunderstanding, it should be made clear that the instant case is concerned with the adequacy of “notice“. We do not hold, however, that a defendant must have “actual notice” of proscribed criminal conduct. Rather, the instant case is couched in terms of “fair” or “reasonable” notice.
BRACHTENBACH, J., concurs with STAFFORD, J.