*1 injury may brought damage tent compe- or be court of by any jurisdiction person corporation. (Italics ours.) 81.04.440. RCW agree language cannot that the
We statute its liability liability imposes public strict without fault companies. It service passage has never been so construed its since p. § of 1911. Laws ch. 608. The statute is couched in terms of fault and causation rather liability. Upon proof than in of terms strict or absolute compel per negligence fault, it se, would conclusion of liability, necessarily proximate absolute cause would recovery Culpabil have be shown before be could had. ity injured party necessarily of the would issue. judgment reversed, dismissal is cause
remanded for new trial. will Costs abide the result new trial.
Hale, C.J., Finley, Rosellini, Hunter, Stafford, and Brachtenbach, JJ., concur. Wright, Utter, January 31, 1974.] 42729. En [No. Banc. Application Corpus the Matter a Writ Habeas Daryl Sidney E. Petitioner, Standlee, Smith,
Respondent. *2 Phillip Ginsberg, petitioner. Defender, H. Public Attorney Predi- Thomas A. General, and Gorton, Slade respondent. letto, Assistant, cor- a writ of habeas J. Petitioner seeks Brachtenbach, Appeals pus. presented the Court The matter first was denying granted re- We an order writ. entered view. parole when the Board Prison on
Petitioner was suspending that an order Terms and Paroles entered upon alleged the terms and conditions violations based alleged charges were based The six violations thereof. daughter, petitioner and her had abducted mother that attempted rape subsequently them, assaulted had day daughter. The before the revo- and molested the mother by charged hearing petitioner in- held was cation was degree. in the of assault second with two counts formation petitioner being hearing then held with was A revocation petitioner hearing represented officer found counsel. guilty charged hear- violations, the six but continued the ing, felony request, charges at defense counsel’s until the were tried. nonjury charges acquit-
A
trial of the assault
resulted in
hearing
tal
an
based
alibi
The revocation
defense.
testimony being pre-
then concluded with the same alibi
sented
officer. That officer
concluded
petitioner
inwas
fact the
assailant,
should be
petitioner
society
revoked and that
was a
risk
view of
past history
of sexual assaults.
Petitioner’s main contention is that the doctrine of
estoppel prohibits
finding
collateral
board from
guilt
him
of violations when the
issue
had been
superior
resolved
his favor in the
court. The doctrine of
estoppel prevents relitigation
collateral
between the same
parties
particular
of a
issue or determinative
Bor
fact.
Ingersoll
deaux v.
Co.,
Rand
71 Wn.2d
There is no doubt that collateral is a of the guarantee against jeopardy. Fifth Amendment double Ashe v. Swenson, 397 436, U.S. 25 L. Ed. 2d 90 469, S. Ct. 1189 (1970).
Equally proposition is clear the that the revocation parole part prosecution. Morrissey of not a is of criminal v. Brewer, 471, 408 33 L. Ed. 2d 92 484, U.S. S. Ct. 2593 (1972). Parole is revoked for violation of the terms and parole part continuing conditions of the as of conse quences granted. of the for crime which was Parole punishment subsequent not revocation is the for events may the violate and which also constitute a separate Morgan, People App. crime. 157, v. 55 Ill. 2d 204 (1965). 314 N.E.2d proceeding between a criminal
The distinction important of the is because rule a proof degree in the of the burden of in difference the that a application estop precludes proceedings of collateral two Helvering pel. 303 L. Mitchell, 917, v. U.S. 82 Ed. 58 attempt (1938), the court was confronted an Ct. 630 with S. by deficiency a for fraud with Internal Revenue assess taxpayer acquitted tax the had been intent evade attempt Mr. to evade tax. on an indictment willful page said at 397: Justice Brandeis proof degree in in of burden of the The difference application precludes of the doc- criminal and civil cases “merely judicata. acquittal . . . of res was trine adjudication proof over- that the sufficient an guilt all of the accused.” come reasonable doubt Frick, v. Lewis U. S. 302. (2d Cir. Commissioner,
Neaderland v.
424 F.2d
1970),
nonapplication of
the
instructive as to
reason
is
estoppel
degree
varies.
collateral
where
estoppel
however,
confined,
to “situations
Collateral
in
suit is identical
where
matter raised
second
proceeding
respects
in the
all
with that decided
first
legal
applicable
controlling
rules
where the
remain
cal
facts
unchanged.”
.
Even if the issue
identi-
.
.
adjudication
constant,
and the facts remain
estop
parties
second,
in the
unless
first case
does
case involves substan-
the matter raised
tially
the second
legal principles
contrib-
bundle of
that
“the same
rendering
judgment.”
.
.
uted to the
first
jury
only
acquits,
an
. When a
it decides
charged
proven
be-
is not
the offense
accused
yond
not
the
doubt,
and the Commissioner is
reasonable
thereby
attempting
fraud in
from
to show
foreclosed
counterpart against
fair
defendant
civil
the same
Helvering
preponderance
supra,
Mitchell,
of the evidence.
397-398,
This burden
It is clear there is different level proceed hearings applicable revocation than criminal to probation pro ings. describing comparable revocation ceedings, this court said: hearing, probation the court need
At the be furnished revocation establishing guilt of criminal with evidence
409 All that is doubt. offenses required reasonably a reasonable as to and be such the evidence facts is that satisfy probationer has court granted proba- he a condition under which was breached or rules and of the state tion, or has violated law regulations Paroles. of the Board of Prison Terms (Citations omitted.) 503 650, 648, Kuhn, State v. 81 Wn.2d (1972). 1061 P.2d recognized distinction has been elsewhere.
Such necessary degree probation The required a criminal is less than that sustain reasonably only hearing judge conviction. The satisfied that the need have been violated terms 1973). (Mo. App. State Wilhite, 397, v. 492 399 Ct. S.W.2d People App. Accord, Kuduk, v. Ill. 51 997 610, 320 N.E.2d (1943); People App. Whittaker, v. 101 Ill. 2d 243 (1968). N.E.2d 467
Here the alibi witness in the created reasonable doubt judge’s necessarily acquitted petitioner. trial mind and he proof, On the other hand, with a lesser standard of hearing officer victims, believed the discounted the alibi judge’s witness who had created reasonable doubt importantly petitioner evaluation and felt the was a threat society large. may if at officer have been by petitioner’s testify influenced initial refusal identify hearing. the alibi witnesses at the first
Keeping procedures purposes in mind the different separate proceedings, relying of the two on the above principles, estoppel pro- we hold that collateral does not hibit the revocation under these circumstances. heavily Morrissey Brewer, relies v. 408
Petitioner U.S. (1972), 484, 92 Ct. 2593 Ed. 2d S. 471, 33 L.
Scarpelli, 36 L. Ed. 2d Ct. U.S. S.
(1973). true that those cases establish that certain It is process apply requirements of due to revocation minimum pro- hearings. However, we do not read those decisions as emphasize hibiting Both reach here. cases the result we *5 rights parole probation limited accorded the violator. Morrissey recognizes case, fact, the interests so- nonadversary dealing ciety in with revocation in a manner: previous proper imposition conviction and the Given of overwhelming conditions, the has an interest State being imprisonment able to with- return the individual to adversary out the of a trial if in burden new criminal parole. fact he has failed abide conditions of his Finally petitioner due contends that he was denied present at the because one alibi witness was alleges hearing. final revocation that this due to He was inability pay expenses Oregon. her from to travel How testimony superior transcript ever, a of the witness’ at the presented court was to the officer. v. Scar pelli, supra n.5, at 783 answers the issue: simply adequate
While in some cases there is tive to live Morrissey no alterna- testimony, emphasize did we that we prohibit appropriate of intend to use where testimony, including the conventional for live substitutes depositions, documentary affidavits, evidence. The writ is denied.
Hale, C.J., Finley, Hunter, Stafford, Rosellini, JJ., Tern., J. Pro concur. Wright, LeVeque, disagreement (dissenting) My J. narrow area Utter, — majority with the whether, under the circumstances beyond case, this the burden of a reasonable doubt apply allegations should to the of the violation in a hearing. In revocation hear- case, this acquittal ing on the concluded the defendant’s majority opinion, charges and, I criminal as understand doubt test that, it concedes if the a reasonable collaterally estopped applies, board would superior from the court trial which a different result reach applied that test. Morrissey L. Ed. 2d 471, 482, 33 Brewer, 408 U.S. (1972), the stated: court Ct.
484,92 S. liberty parolee, al- of a therefore, see,We many the core values though includes indeterminate, liberty inflicts unqualified termination and its parolee others. It is “grievous often on loss” problem try hardly longer this to deal with useful liberty “right” parolee’s or a is a in terms of whether the liberty By “privilege.” and must be seen as within the valuable name, whatever
protection Four- of the or- calls for some teenth Amendment. Its termination derly process, however informal. Gagnon Scarpelli, 2d Ed. 781, 36 L. 411 U.S. emphasized (1973), again
656, 93 Ct. S. the court part though “[e]ven not a is revocation liberty prosecution entailed is criminal . . . loss of deprivation parolee requiring a accorded serious that the be process.” due was whether the court in
An issue before pro- during probation right or to counsel part process. ceedings The court an inherent of due emphasized the touchstone that fundamental fairness was process. not be that, It then ruled while counsel need due pro- they presumptively provided case, should be in each right being informed of their where, vided in cases probationer parolee request a counsel, the or makes such timely request that he has on a and colorable claim based alleged violation of the conditions committed the liberty. Alternately, the court indicated which he is at appointed presumptively if the should also even counsel public if or a matter of record violation is uncontested justify mitigate there substantial reasons which are inappropriate and the rea- make revocation violation and develop pre- complex or otherwise difficult sons are sent. parolee granted at a revocation right to counsel
If the denied, as a basic due the offense is where in cases apply fail to also right, we process how can circumstances same standard doubt reasonable right of a basic due denied, as offense where language logic I believe fairness? and fundamental Winship, 25 L. Ed. 2d 90 Ct. S. 397 U.S. In re (1970), compels pages such a result. at There, 363, 364, proof beyond the court stated a reasonable doubt has a procedure “vital role in cogent our criminal reasons” emphasized: Lest there remain doubt about the constitutional stature of explicitly the reasonable-doubt standard, we protects hold that the Due Process Clause the accused against except upon proof beyond conviction a reasonable every necessary doubt of fact to constitute the crime charged. with which he is policy page reasons for this, as stated the court at 363,were that: prime reducing It is a instrument for the risk of convic- resting tions provides on factual error. The standard con- presumption crete substance for the of innocence—that elementary”
bedrock principle “axiomatic and whose “enforcement at lies the foundation of the administration of our person criminal law.” . . “a accused crime . disadvantage, would be at a severe a dis- *7 advantage amounting to a lack of fundamental fairness, if adjudged guilty he imprisoned could years be strength on the of the same evidence as would suffice in a civil case.” always litigation . . margin . “There is in a of error, representing factfinding, parties error in which both must party take into account. Where one has at stake an transcending interest of a value—as criminal defendant liberty margin his by of error is reduced as to him —this process placing party of on the other the burden of persuading . . . at factfinder the conclusion of guilt beyond the trial of his a reasonable doubt. Due liberty commands that no man shall lose his un- less the Government has borne the burden of . . convincing guilt.” the factfinder of his To end, this indispensable, reasonable-doubt standard is for it “im-
presses necessity reaching the trier of fact the a subjective state of certitude of the facts in issue.” .
Moreover, use the reasonable-doubt standard is in- respect dispensable to command the and confidence of community applications in of the criminal It law. the moral critical that force of the criminal law people diluted a standard that leaves in doubt being It is innocent men are condemned. also whether society every going important in our free individual ordinary gov- about his affairs have confidence that adjudge ernment cannot him of a criminal offense convincing guilt proper without utmost factfinder of his with certainty. applied The court made clear that considerations these only proceedings enunciating adult them, did it juvenile question application pro- turn of their ceedings. Morrissey Gagnon
The issues before the court in did precise by Winship. only not involve the issue The raised Winship context in which in of these mentioned either Gagnon. page two cases, was in footnote 789 of There why every the court discussed counsel were not in needed distinguished orig- as from their need in they dealing inal criminal cases. court stated were “not right prose- with the of an accused to in counsel a criminal process right cution, but with the more limited due of one probationer only parolee who ais because he has been convicted of a crime.” The footnote then In re cited Gault, (1967), Ed. U.S. 18 L. 2d 527, 87 Ct. 1428 S. juvenile’s right established to counsel. The court distin- guished right juveniles, requested, this available to if every they charged noting case where are crime, with a charged generally applicable that one “with violation of a differently already-convicted statute is situated from an probationer parolee, higher degree is entitled protection.” Winship establishing was then cited as the bur- juvenile den of cases as a reasonable doubt. explicit ruling later makes clear the court’s This footnote right required as a matter that counsel *8 by probation process compelled revoca- in all due being required hearings, in all crimi- as contrasted tion juvenile proceedings the prosecution where defend- nal may does affirm due be taken. ant’s freedom compel however, the state to process can, considerations denies commission of the defendant counsel where furnish special the act or needed in other where counsel’s skills are ways. Winship approach. Proof be- is consistent with this yond required, of due reasonable doubt is as a matter process, point specific allegations at made the where are regarding are con- the commission of criminal acts which parole. tested and are the basis for revocation of sole policy It would seem to reasons stated me all by establishing importance applying the court beyond Winship apply in a reasonable doubt standard Morrissey Gagnon, previously this case. As stated process apply probation due does proceedings despite an the fact that the defendant is not person original proceedings. “accused” as in criminal Due upon concept is based of fundamental fairness specifically Winship identified where court has as to a a reasonable doubt standard basic applica- concept for fairness, of fundamental the reasons its by appear cogent. tion more The cases cited the ma- even They jority persuasive. on the burden of issue are predate Winship either it. or fail discuss petitioner’s violation reason advocated the sole Where of criminal acts the commission application adjudged by be- he been has superior yond court standard in the reasonable doubt petitioner’s subsequently freedom remove state, this application to me to com- standard seems of a lesser unusually strong language ignore used in Win- pletely right. importance asserting ship, of this fundamental grant the writ. therefore, would, I rehearing 29, 1974. denied March Petition