139 Wash. 2d 724 | Wash. | 2000
Lead Opinion
Appellant State of Washington seeks direct review of a decision of the Kitsap County District Court which dismissed with prejudice a charge against Respondent Dennis L. Wadsworth for unlawful possession of a weapon in violation of RCW 9.41.300(1) by attempting to take a knife into the Kitsap County Courthouse. The District Court reasoned the Legislature, by enacting RCW 9.41.300(l)(b), unconstitutionally delegated to “local judicial authority” the power to designate the areas in court buildings where possession of a weapon is unlawful. We granted review. We reverse.
QUESTION PRESENTED
The question presented in this case is whether the
STATEMENT OF FACTS
This case comes before the court on stipulated facts,
In the 1993 legislative session, House Bill ESHB 1059 was introduced to revise provisions relating to prohibition of weapons in restricted areas of court facilities used in connection with court proceedings.
The statute as amended includes a provision that “[t]he local judicial authority shall designate and clearly mark those areas where weapons are prohibited, and shall post notices at each entrance to the building of the prohibition
On August 25, 1995, in response to the legislative directive under RCW 9.41.300, the Kitsap County Superior Court adopted Resolution 82295
Effective September 5, 1995, all persons entering the Kitsap County Courthouse are required to pass through a
On July 10, 1997, Respondent Dennis L. Wadsworth attempted to enter the front public entrance to the Kitsap County Courthouse.
Respondent maintained he had a right to possess the knife inside the courthouse.
Respondent Wadsworth on July 10, 1997 attempted a second time to enter the courthouse with his black bag.
On July 10, 1997, Respondent Dennis L. Wadsworth was formally charged with Count I, criminal trespass in the first degree in violation of RCW 9A.52.070(1), and Count II, making a false or misleading statement to a public servant in violation of RCW 9A.76.175.
Defendant [Dennis L. Wadsworth] did commit the crime of UNLAWFUL POSSESSION OF WEAPON IN CERTAIN PLACES as follows—
On or about the 10 day of July, 1997, in the County of Kit-sap, State of Washington, the above-named Defendant, who knowingly possessed or knowingly had under his or her control a weapon, did enter those areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judge’s chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings; contrary to Revised Code of Washington 9.41.300(l)(b).
(MAXIMUM PENALTY — One(l)year in jail or $5,000.00 fine, or both, pursuant to RCW 9.41.300(10) and RCW 9.92.020, plus restitution, assessments and court costs.).
On April 13, 1998, the Honorable James M. Riehl, Kitsap County District Court, granted an order of dismissal of Counts I and II in the original complaint.
Respondent Wadsworth, relying upon the facts stated in the stipulation, filed several motions to dismiss the charge against him.
On November 30, 1998, the State under RAP 4.3 filed a timely notice for direct review to this court.
*732 A delay in obtaining a prompt and precedential determination of the above issues could cause significant detriment to the State of Washington and/or the public’s interest in having safe access to seek redress through the judicial branch of government and its courtrooms and courthouses.[44 ]
This court granted review on February 8, 1998.
DISCUSSION
RCW 9.41.300(1) provides:
Weapons prohibited in certain places — Local laws and ordinances — Exceptions—Penalty. (1) It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:
(a) The restricted access areas of a jail, or of a law enforcement facility, or any place used for the confinement of a person (i) arrested for, charged with, or convicted of an offense, (ii) held for extradition or as a material witness, or (iii) otherwise confined pursuant to an order of a court, except an order under chapter 13.32A or 13.34 RCW. Restricted access areas do not include common areas of egress or ingress open to the general public;
(b) Those areas in any building which are used in connection with court proceedings, including courtrooms, jury rooms, judge’s chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings. The restricted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building. The restricted areas shall be the minimum necessary to fulfill the objective of this subsection (l)(b).
In addition, the local legislative authority shall provide either a stationary locked box sufficient in size for pistols and key to a weapon owner for weapon storage, or shall designate an official to receive weapons for safekeeping, during the*733 owner’s visit to restricted areas of the building. The locked box or designated official shall be located within the same building used in connection with court proceedings. The local legislative authority shall be liable for any negligence causing damage to or loss of a weapon either placed in a locked box or left with an official during the owner’s visit to restricted areas of the building.
The local judicial authority shall designate and clearly mark those areas where weapons are prohibited, and shall post notices at each entrance to the building of the prohibition against weapons in the restricted areas;
(c) The restricted access areas of a public mental health facility certified by the department of social and health services for inpatient hospital care and state institutions for the care of the mentally ill, excluding those facilities solely for evaluation and treatment. Restricted access areas do not include common areas of egress and ingress open to the general public; or
(d) That portion of an establishment classified by the state liquor control board as off-limits to persons under twenty-one years of age.[45 ]
Respondent Wadsworth argues that RCW 9.41.300(l)(b) is an unconstitutional violation of the separation of powers doctrine. He contends that passage of Resolution 82295, “which criminalize [s] a particular conduct which would otherwise be legal,” is equivalent to the judiciary defining the elements of a specific crime.
It is the function of the Legislature to define the elements of a specific crime.
Appellant State of Washington asserts the Legislature purposely defined the crime in general terms, and left to the judiciary the task of establishing specifics.
“The separation of powers doctrine is not specifically enunciated in either the Washington or federal constitutions, but is universally recognized as deriving from the tripartite system of government established in both constitutions. See, e.g., Wash. Const, arts. II, III, and IV (establishing the legislative department, the executive, and judiciary); U.S. Const, arts. I, II, and III (defining legislative, executive, and judicial branches); .... When separation of powers challenges are raised involving different branches of state government, only the state constitution is implicated. . . . However, this court relies on federal principles regarding the separation of powers doctrine in interpreting and applying the state’s separation of powers doctrine. . . .”
In adjudging the potential damage to one branch of government by the alleged incursion of another, it is helpful to examine both the history of the practice challenged as well as that branch’s tolerance of analogous practices. E.g., Mistretta [v. United States,] 488 U.S. [361,] at 398-401 [109 S. Ct. 647, 102 L. Ed. 2d 714 (1989)] (allowing judicial participation on Sentencing Guidelines Commission based on historical analogues of extrajudicial activity). “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 96 L. Ed. 1153, 72 S. Ct. 863, 897, 26 A.L.R.2d 1378 (1952) (Frankfurter, J., concurring). Thus, a long history of cooperation between the branches in any given instance tends to militate against finding any separation of powers violation.[63 ]
Appellant cites statutes relating to “bail-jumping,” “protection orders” and “contempt” as examples of the Legislature defining a crime generally and the judiciary providing the specifics.
Under the “bail-jumping” statute, RCW 9A.76.170, it is
Under statutes relating to “protection orders,” the judiciary determines the specific prohibitions against a restrained party which subjects the party to criminal liability.
The offense of criminal contempt is defined by the Legislature which has designated the mode of prosecution and available punishment.
Analogous to the circumstances in this case, the Legislature, after designating the specific “places” where knowing possession of a weapon is unlawful, merely left to the judiciary determination of the area of its protected “place.” By granting to local judicial authority the discretion to indicate the portion of the courthouse to be designated weapons-free under RCW 9.41.300(l)(b), the Legislature was
Appellant asserts the judicial branch is primarily responsible for administration of courthouse security.
Citing the decision of this court in State v. Hartzog,
This court has recognized the inherent power and obligation of the judiciary to control all its necessary functions to promote the effective administration of justice.
Under the inherent powers of the courts, the judiciary has authority to administer justice and to ensure the safety of court personnel, litigants and the public. In this case, Respondent Wadsworth claims the Legislature did not provide procedural safeguards against arbitrary action by the local judicial authority.
RCW 9.41.300(1) is clear that reasonable restrictions may be placed on a citizen’s ability to bring weapons into court areas. Given the layout of the Kitsap County Courthouse, it is not possible to protect court areas used in connection with court proceedings without restricting ingress and egress to the entire building. The weapons restricted area, in this case the entire Kitsap County Courthouse, is the minimum restricted area necessary to fulfill the objectives of the statute.[103 ]
The Superior Court judges selected the resolution as the means for implementing RCW 9.41.300. Under the inherent powers of the courts, judges may issue orders that are “necessary and reasonable.”
SUMMARY AND CONCLUSIONS
A party challenging the constitutionality of a statute bears the burden of proving it is unconstitutional beyond a reasonable doubt.
In determining whether RCW 9.41.300(1) constitutionally delegated to the local judicial authority the power to
Respondent Wadsworth has not met his burden in establishing- that RCW 9.41.300(1) is an unconstitutional violation of the separation of powers. He has not established that the Legislature improperly delegated to the judiciary the authority to define an element of the crime. The Legislature has an established practice of defining prohibited acts in general terms, leaving to the judicial and executive branches the task of establishing specifics. Respondent cites no evidence or case law to support his assertion that Resolution 82295 is invalid because it exceeds the scope of statutory authority under RCW 9.41.300. Nor does he show that the Legislature should have established procedural safeguards to protect against arbitrary action by the local judicial authority.
The statute, RCW 9.41.300, satisfies the constitutional separation of powers requirement. Based upon the inherent powers of the court to administer justice and provide for courthouse security to ensure the safety of court personnel, parties and the public, Resolution 82295 is a valid exercise of that authority.
We reverse the decision of the Kitsap County District Court which ruled RCW 9.41.300(1) unconstitutional as a violation of the separation of powers doctrine and dismissed with prejudice the charge against Respondent Dennis L. Wadsworth of attempting to take a knife into the Kitsap County Courthouse in violation of the statute.
Guy, C.J., Johnson, Madsen, Talmadge, and Ireland, JJ., and Sweeney, J. Pro Tem., concur.
The parties ¡filed stipulations on April 13, 1998 and October 12, 1998. Clerk’s Papers at 31-104, 144-45.
Id. at 53-76.
Id. at 55-59.
Id.
The amendments proposed by the Senate to House Bill ESHB 1059 were: “The locked box provided by the local legislative authority must be stationary; The local legislative authority is liable for any negligence causing damage to or loss of a weapon placed in a locked box or left with a designated official; [and] The judicial authority is required to designate and mark the restricted areas of the building. Id. at 76. (Final Bill Report, ESHB 1059).
The Final Bill Report of ESHB 1059 indicates that “[i]n response to increasingly frequent reports of violent incidents in court facilities, ... all dangerous weapons should be banned from all areas used in connection with court proceedings.” Id. at 75.
RCW 9.41.300(l)(b).
Prior to the amendment House Bill ESHB 1059 provided that “the local legislative authority must designate and clearly mark areas in court facilities where weapons are prohibited, and must post notices at each entrance to the court facility that weapons are prohibited in the restricted areas.” Clerk’s Papers at 76 (emphasis added).
Id. at 58
Id. at 49-51.
The parties stipulated to a schematic diagram of the first and second floors of the Kitsap County Courthouse located at 614 Division Street in Port Orchard, Washington. Id. at 46-47.
Id. at 49-51. As some of the reasons for the ban of weapons from the entire Kitsap County Courthouse and the Kitsap County Youth Services Facility, Resolution 82295 refers to the free flow of jurors, witnesses, victims, defendants and court-related personnel through the hallways of the two-story courthouse; the extensive use of stairwells; and the location of permanent courtrooms on the second floor and temporary courtrooms on the first floor near elevators.
Id. at 32.
Id.
Id. at 33.
Id.
Id.
Id.
The 1996 annual report of the Kitsap County Court Security office stated that approximately 9,402 knives, 824 containers of pepper spray, and 118 firearms were intercepted at the entrance of the Kitsap County Courthouse. In contrast, the 1997 report indicated interception of 725 knives, 66 containers of pepper spray, and 12 firearms. Id. at 33, 99-100.
Id. at 34-35.
Id. at 35.
Id.
Id.
Id.
Respondent Wadsworth asserts he was shown a copy of only RCW 9.41.250 and not shown a copy of Kitsap County Superior Court Resolution 82295. Court security officers assert Respondent was shown a copy of both RCW 9.41.300 and RCW 9.41.250. Id.
Id.
Id. at 35-36.
Respondent Wadsworth was released and escorted from the courthouse by court security officers. Id. at 36.
Id.
Id.
Id.
Id.
Id.
Id.
Respondent Wadsworth claims he suffers from diabetes and carries medical supplies, including insulin, in the small black bag. He self-administers insulin by syringe injection and claims he uses a knife to cut the used syringe in half. Court security officers were not made aware of this on July 10, 1997. Id. at 36-37.
Id. at 1-2.
Id. at 105.
Id. at 106.
0n April 13, 1998, Respondent Wadsworth and the State entered into a stipulation of facts concerning (1) the incident forming the basis of this action (Clerk’s Papers at 31-44); (2) a schematic diagram of the first and second floors of the Kit-sap County Courthouse (Clerk’s Papers at 46-47); (3) the location of signs notifying the public of the prohibition of weapons in the courthouse (Clerk’s Papers at 31-32); (4) the location of the permanent and temporary courtrooms on the first and second floors of the courthouse (Clerk’s Papers at 34); (5) Resolution 82295 of the Kitsap County Superior Court (Clerk’s Papers at 49-51); (6) the security measures then in place at the Kitsap County Courthouse and corresponding statistics for the years 1996 and 1997 compiled by courthouse security (Clerk’s Papers at 33-37, 99-100); (7) the legislative history of RCW 9.41.300 (Clerk’s Papers at 53-76); and (8) the availability of sufficient room at the top of the stairwells on the second floor of the courthouse for installation of metal detectors and X-ray devices (Clerk’s Papers at 144-45).
The motions to dismiss made the following assertions: (1) RCW 9.41.300(l)(b) was unconstitutional under the separation of powers doctrine (Clerk’s Papers at 107-13); (2) the State cannot establish a prima facie case because the Swiss Army style knife with a two-inch blade does not constitute a weapon (Clerk’s Papers at 114-19); and (3) Resolution 82295 of the Kitsap County Superior Court exceeds the statutory authority granted under RCW 9.41.300(l)(b) (Clerk’s Papers at 120-23).
In a memorandum decision dated November 30, 1998, Judge Riehl denied Respondent’s motion to dismiss for failure by the State to establish a prima facie case and Respondent’s motion to dismiss on the grounds that Resolution 82295 of the Kitsap County Superior Court exceeded the statutory authority granted by RCW 9.41.300(l)(b). Clerk’s Papers at 150.
The brief order of dismissal on the motion of [Respondent] dated November 5, 1998 was a check-off form dismissing with prejudice with interlined notations “pending further findings and conclusions” and “violates separation of power.” Id. at 149-59. The court’s memorandum decision was filed November 30, 1998. Id. at 150-59.
Id. at 238-39.
Id. at 236-37.
RCW 9.41.300(1) (emphasis added).
Br. of Resp’t at 8.
Br. of Appellant at 14.
Clerk’s Papers at 159.
See Rettkowski v. Department of Ecology, 128 Wn.2d 508, 514-15, 910 P.2d 462 (1996).
See Island County v. State, 135 Wn.2d 141, 146-47, 955 P.2d 377 (1998).
See Washington State Coalition for the Homeless v. Department of Soc. & Health Servs., 133 Wn.2d 894, 904, 949 P.2d 1291 (1997) (citing Tommy P. v. Board of County Comm’rs, 97 Wn.2d 385, 391, 645 P.2d 697 (1982)).
See Washington State Coalition for the Homeless, 133 Wn.2d at 904 (citing Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993)).
See Hendrix v. City of Seattle, 76 Wn.2d 142, 155, 456 P.2d 696 (1969), cert. denied, 397 U.S. 948 (1970), overruled on other grounds by McInturf v. Horton, 85 Wn.2d 704, 707, 538 P.2d 499 (1975) (citing Morgan v. Devine, 237 U.S. 632, 35 S. Ct. 712, 59 L. Ed. 1153 (1915); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 5 L. Ed. 37 (1820).
See RCW 9.41.300(l)(a), (b), (c), and (d).
See RCW 9.41.300(10): “Any person violating subsection (1) of this section [RCW 9.41.300(1)] is guilty of a gross misdemeanor.”
Fixing penalties for criminal offenses is a legislative function, and not a judicial one. See, e.g., State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718
See Geschwind, 121 Wn.2d at 841.
Br. of Appellant at 16.
Id. at 16-19.
Id. at 16.
State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997). Pertinent portions of Wash. Const, arts. II, § 1 (amend. 72), and iy § 1, read:
*736 Article II.
Legislative Department
§ 1 Legislative Powers, Where Vested. The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington ....
Article IV
The Judiciary
§ 1 Judicial Power, Where Vested. The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace and such inferior courts as the legislature may provide.
125 Wn.2d 129, 882 P.2d 173 (1994).
Carrick, 125 Wn.2d at 136.
Br. of Appellant at 17.
See RCW 9A.76.170.
State v. Bryant, 89 Wn. App. 857, 863, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999) (court ordered defendant to appear at a December 8, 1994 omnibus hearing).
See, e.g., RCW 10.99.050; RCW 10.99.040; RCW 26.50.060; RCW 26.50.110; RCW 9A.46.080.
Id.
See generally State v. Dejarlais, 136 Wn.2d 939, 969 P.2d 90 (1998) (burglary conviction based in part on a protection order issued by a judge that limited defendant’s ability to contact the victim); State v. Jackson, 91 Wn. App. 488, 490, 957 P.2d 1270 (1998) (conviction for a telephone call made in violation of judicial order precluding any contact with victim unless it concerned the scheduling of visitation with defendant’s children).
RCW 7.21.040(2) (a) and (5).
RCW 7.21.010(1).
Id.
Spokane County v. State, 136 Wn.2d 663, 670-72, 966 P.2d 314 (1998) (act is not an unconstitutional violation of separation of powers because courts retain final judicial review of resolutions issued by the Public Employment Relations Commission); State v. Manussier, 129 Wn.2d 652, 667-69, 921 P.2d 473 (1996) (Initiative 593, the “three strikes law,” is a constitutional delegation of the Legislature’s authority to alter the sentencing process); State v. Lewis, 115 Wn.2d 294, 304-07, 797 P.2d 1141 (1990) (Sentencing Reform Act giving prosecutors discretion in charging decisions does not usurp legislative power to set sentencing ranges and does not violate the separation of powers); Diversified Inv. Partnership v. Department of Soc. & Health Servs., 113 Wn.2d 19, 25, 775 P.2d 947 (1989) (Legislature may delegate administrative power if it defines generally what is to be done, which administrative body is to accomplish specified purposes, and what procedural safeguards are in effect to control arbitrary administrative action); State v. Lee, 87 Wn.2d 932, 933, 558 P.2d 236 (1976) (habitual criminal statute is a constitutional delegation of legislative authority to determine appropriate punishment for criminal violations).
74 Wn.2d 865, 870, 447 P.2d 593 (1968).
Id.
Id.
We note that Congress has deferred to the courts in matters relating to possession of weapons in Federal courthouses. Under 18 U.S.C. § 930(f), Congress criminalized possession of a firearm or other dangerous weapons in federal court facilities and stated that:
Nothing in this section limits the power of a court of the United States to punish for contempt or to promulgate rules or orders regulating, restricting, or prohibiting the possession of weapons within any building housing such court or any of its proceedings, or upon any grounds appurtenant to such building.
Br. of Appellant at 9.
125 Wn.2d 129, 882 P.2d 173 (1994).
Br. of Appellant at 10.
Carrick, 125 Wn.2d at 136.
Br. of Resp’t at 8-9.
96 Wn.2d 383, 635 P.2d 694 (1981).
Br. of Appellant at 11.
Hartzog, 96 Wn.2d at 396 (requirement of a courtroom’s security order that a maximum-security defendant submit to another body cavity search before appearing in court was justifiable to allow the court to maintain order and decorum).
Id. at 401.
Board of County Comm’rs v. Nineteenth Judicial Dist., 895 P.2d 545 (Colo. 1995) (courts have the inherent authority to order the sheriff to provide security measures for a courthouse such as metal detectors, security checkpoints, and guards).
Petition of Mone, 143 N.H. 128, 719 A.2d 626 (1998) (law requiring the county sheriff departments instead of the court-supervised bailiffs to provide courthouse security violated the separation of powers); State v. LaFrance, 124 N.H. 171, 471 A.2d 340 (1983) (statute allowing law enforcement officers to wear firearms in any courtroom in the state was struck down on separation of powers grounds).
State ex rel. Farley v. Spaulding, 203 W. Va. 275, 507 S.E.2d 376 (1998) (court recognized that the judiciary had the inherent power to designate and authorize persons to perform security services necessary to the safe and efficient operation of the county judiciary).
Br. of Appellant at 11-13.
Zylstra v. Piva, 85 Wn.2d 743, 748-50, 539 P.2d 823 (1975). See Washington State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674-75, 763 P.2d 442 (1988); Washington State Bar Ass’n v. State, 125 Wn.2d 901, 908-09, 890 P.2d 1047 (1995).
In re Juvenile Dir., 87 Wn.2d 232, 245-50, 552 P.2d 163 (1976). See also Ordell v. Gaddis, 99 Wn.2d 409, 411, 662 P.2d 49 (1983) (The inherent power of Superior courts to appoint pro tem commissioners is based upon the efficient administration of justice).
See State ex rel. Syverson v. Foster, 84 Wash. 58, 146 P. 169 (1915).
See State ex rel. Haugland v. Smythe, 25 Wn.2d 161, 169 P.2d 706, 165 A.L.R. 1295 (1946).
See State v. Smith, 84 Wn.2d 498, 502, 527 P.2d 674 (1974).
See State v. Cook, 84 Wn.2d 342, 525 P.2d 761 (1974).
See State v. Edwards, 94 Wn.2d 208, 212, 616 P.2d 620 (1980).
Williams v. State, 690 N.E.2d 162 (Ind. 1997); People ex rel. Sullivan v. Swihart, 897 P.2d 822 (Colo. 1995); State v. Shelton, 270 S.C. 577, 243 S.E.2d 455 (1978).
State ex rel. Lambert v. Stephens, 200 W. Va. 802, 490 S.E.2d 891 (1997); County of Barnstable v. Commonwealth, 422 Mass. 33, 661 N.E.2d 47 (1996); State ex rel. Frazier v. Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994); In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991); O’Coin’s, Inc. v. Treasurer of Worcester County, 362 Mass. 507, 287 N.E.2d 608 (1972); Judges for the Third Judicial Circuit v. County of Wayne, 386 Mich. 1, 190 N.W.2d 228, 59 A.L.R.3d 548 (1971).
Br. of Resp’t at 15.
Id. at 9.
Id. at 12.
Clerk’s Papers at 155.
In re Juvenile Dir., 87 Wn.2d at 245-50.
Dissenting Opinion
(dissenting) — I would affirm the Kitsap
I
The majority essentially determines that the Legislature may delegate to the judiciary the task of defining criminal conduct. This is an incorrect conclusion because we have consistently held that the Legislature, not the judiciaiy, is the branch of government that is responsible for defining the elements of a crime. See, e.g., McInturf v. Horton, 85 Wn.2d 704, 706, 538 P.2d 499 (1975). In McInturff, we stated that “[t]he power to decide what acts shall be criminal, to define crimes, and to provide what the penalty shall be is legislative.” McInturff, 85 Wn.2d at 706; see also State v. Ritchie, 126 Wn.2d 388, 394, 894 P.2d 1308 (1995); State v. Ermert, 94 Wn.2d 839, 847, 621 P.2d 121 (1980); State v. Carothers, 9 Wn. App. 691, 696, 514 P.2d 170 (1973) (“The specification of the ways or modes by which a given crime may be committed is a legislative function.”), aff’d, 84 Wn.2d 256, 525 P.2d 731 (1974). Although the majority pays lip service to the Legislature’s prerogative to specify the elements of a crime, it appears undisturbed by the fact
The delegation of legislative authority that took place here flies in the face of the notion that the judiciary should not be in the business of creating crimes or defining criminal conduct. See State v. Wissing, 66 Wn. App. 745, 755, 833 P.2d 424 (noting that there exists no common law crime in Washington), review denied, 120 Wn.2d 1017, 844 P.2d 436 (1992); State v. Danforth, 56 Wn. App. 133, 137, 782 P.2d 1091 (1989), overruled on other grounds by State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993). In my view, we should hold fast to the idea that under the doctrine of separation of powers the judicial branch may not be assigned tasks that are the functions of other branches of government. See Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994). Because the task of deciding where it is unlawful to carry a weapon is a task that appropriately resides with the legislative branch, the delegation here is improper.
The majority incorrectly analogizes the present statute to other statutes relating to “bail jumping,” “protection orders,” and “criminal contempt.” See Majority op. at 736-37. I readily agree with the majority’s assertion that under the bail jumping statute
I also disagree with the majority that the delegation embodied in RCW 9.41.300 is justified as merely an “acknowledgment” of the judicial branch’s inherent power. See Majority op. at 738-39. At the same time, I readily acknowledge that judges must and do have the inherent power to ban weapons in courtrooms, jury rooms, and other facilities used in connection with court proceedings and to expel persons who violate such proscriptions. See State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981). I also recognize that judges may even enforce the ban by requiring persons entering court facilities to undergo security checks in order to make certain the court’s order is followed. Indeed, a trial court has the statutory and inherent power
The judicial branch is limited to exercising powers that are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction. State v. Gilkinson, 57 Wn. App. 861, 865, 790 P.2d 1247 (1990) (citing In re Guardianship of Hayes, 93 Wn.2d 228, 243, 608 P.2d 635 (1980) (Rosellini, J., dissenting)). These inherent powers are by no means absolute. “Such powers are strictly procedural in nature and do not confer any substantive authority nor increase the jurisdiction of the court.” Gilkinson, 57 Wn. App. at 865 (emphasis added) (citing Ladenburg v. Campbell, 56 Wn. App. 701, 784 P.2d 1306 (1990)). In the case before us, the local judicial authority, at the behest of the Legislature, gave life to a criminal statute by supplying an element of the crime — designating areas in buildings housing court facilities where it is unlawful to carry weapons. The designation by the Kitsap County Superior Court judges of the entire building, which houses their court, had the effect of imposing criminal liability on Wadsworth, a person who was found carrying a small knife at the entrance of the courthouse. Making such an act illegal is power the judiciary does not possess.
II
Even if it were constitutionally acceptable for the Legislature to delegate the task of defining criminal conduct to the judiciary, the majority simply assumes, without any analysis, that the delegation procedure embodied in RCW 9.41.300(l)(b) poses no constitutional problems. This assumption is in error because the statute is not clear as to who or what constitutes the local judicial
delegation of legislative power is justified and constitutional . . . [only] when it can be shown (1) that the legislature has provided standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it; and (2) that procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power.
Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 159, 500 P.2d 540 (1972) (emphasis omitted).
The delegation of legislative power here is remarkably unfettered. The statute merely instructs the “local judicial authority” to designate areas where it is unlawful to carry weapons. RCW 9.41.300(1)(b). Unfortunately, the statute provides no direction as to who or what constitutes the local judicial authority. One can reasonably ask whether the authority is vested in all of the judges of the superior court or in its presiding judge. If the superior court shares a building with the district court, which is not at all uncommon in this state, is the authority vested in an ad hoc panel of judges from both courts? If so, is the decision to be made by a majority of the judges or must there be unanimity among all the members of the local judicial authority? It is plain, in short, that the statute is significantly devoid of details as to who or what constitutes the “local judicial authority” and how it is to make the statutorily mandated decision. The constitution requires more. Barry, 81 Wn.2d at 159.
Another troublesome aspect of RCW 9.41.300 is the complete absence of procedural safeguards. There is, in other words, no framework under which the “local judicial authority” must act. Although courts are not administrative agencies, I would observe that such agencies are typically bound by the Administrative Procedure Act, RCW 34.05, that ensures that interested parties will be given notice and an opportunity to comment on a proposed rule before it is adopted. Barry, 81 Wn.2d at 164. Adequate
In the final analysis, the local judicial authority has been given the ultimate discretion to decide where weapons will be prohibited in buildings where court business is transacted. Even assuming the delegation of authority was proper in the first place, it is constitutionally unacceptable for the local judicial authority to exercise its discretion without supplying any opportunity for public comment. See Biermann v. City of Spokane, 90 Wn. App. 816, 822, 960 P.2d 434 (1998) (noting that the City’s decision based on unpublished informal policy does not fulfill requirement of providing adequate procedural safeguards), review denied, 137 Wn.2d 1004, 972 P.2d 466 (1999). Although I quickly add that there is nothing in the record to suggest that any judicial personages have acted in an arbitrary manner, whether or not a recipient of legislative authority has acted with the utmost of judiciousness is not relevant to the inquiry of whether adequate procedural safeguards exist at the outset.
CONCLUSION
I might have no quarrel with the statute in question,
I, therefore, dissent.
Sanders, J., concurs with Alexander, J.
The statute states in pertinent part that “[t]he local judicial authority shall designate and clearly mark, those areas where weapons are prohibited, and shall post notices at each entrance to the building of the prohibition against weapons in the restricted areas.” RCW 9.41.300(l)(b) (emphasis added).
RCW 9A.76.170
See, e.g., RCW 9A.46.080; RCW 10.99.040; RCW 10.99.050; RCW 26.50.060; RCW 26.50.110.
RCW 7.21.010(1); RCW 7.21.040(2)(a), (5).
One could reasonably argue, though, that the Legislature’s designation of specific areas where it is unlawful to carry weapons, i.e., courtrooms, jury rooms, judge’s chambers and the like, does not make the proscription in the statute complete because the statute still requires the local judicial authority to implement the statute by designating and clearly marking areas where weapons are prohibited, including those specifically designated. See RCW 9.41.300(l)(b). Because Wadsworth did not enter an area specifically listed in the statute, we need not address this issue.