State v. WadsworthState v. Wadsworth
- Reporters:
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- Before:
- Smith
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
The question presented in this case is whether the Legislature may constitutionally delegate to “local judicial authority” under
STATEMENT OF FACTS
This case comes before the court on stipulated facts,1 including a stipulation on the legislative history of
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.3 The bill passed the House.4 After the Senate proposed three amendments,5 the House and Senate conferees agreed on them.6 Both houses passed House Bill ESHB 1059 which was codified as
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 against weapons in the restricted areas[.]”7 These duties were assigned to the “local judicial authority” instead of to the “local legislative authority”8 at the request of the Office of the Administrator for the Courts.9
On August 25, 1995, in response to the legislative directive under
Effective September 5, 1995, all persons entering the Kitsap County Courthouse are
On July 10, 1997, Respondent Dennis L. Wadsworth attempted to enter the front public entrance to the Kitsap County Courthouse.20 As the small black bag he was carrying passed through the X-ray machine, court security officers observed a Swiss Army style pocketknife with a two-inch blade.21 A security officer explained to Respondent that the knife was not permitted inside the courthouse and that Respondent had the option of allowing court security to store the knife until he left the building; or returning the knife to his vehicle; or not entering the courthouse at all.22
Respondent maintained he had a right to possess the knife inside the courthouse.23 Court security officers warned him he would be charged with a crime if he attempted to enter the courthouse while in possession of the knife.24 At his request, coúrt security officers provided Respondent an opportunity to review
Respondent Wadsworth on July 10, 1997 attempted a second time to enter the courthouse with his black bag.29 His bag was run through the X-ray machine.30 Court security officers observed another pocketknife in the bag.31 Respondent denied having a knife in the bag.32 A search of the bag by court security officers confirmed a Swiss Army type knife with a red handle in the bag.33 Respondent then permitted the knife to be stored by court security officers while he was inside the courthouse.34 It was returned to
On July 10, 1997, Respondent Dennis L. Wadsworth was formally charged with Count I, criminal trespass in the first degree in violation of
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 toRCW 9.41.300(10) andRCW 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.38 Additionally, the parties entered into a stipulation regarding certain facts.39
Respondent Wadsworth, relying upon the facts stated in the stipulation, filed several motions to dismiss the charge against him.40 On November 5, 1998, Judge Riehl granted Respondent’s motion to dismiss,41 concluding that
On November 30, 1998, the State under RAP 4.3 filed a timely notice for direct review
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
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 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
This case requires interpretation of
It is the function of the Legislature to define the elements of a specific crime.53 In this case, the Legislature defined the elements of the crime under
Appellant State of Washington asserts the Legislature purposely defined the crime in general terms, and left to the judiciary the task of establishing specifics.58 It maintains there are other examples of this practice in the Revised Code of Washington.59 Appellant asks this court to conclude it is not unconstitutional under the separation of powers doctrine for the Legislature to defer to the “local judicial authority” designation of areas of a courthouse to be declared “weapons-free” and placement of signs notifying the public of restrictions.60
“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
Appellant State of Washington relies on our decision in Carrick v. Locke which states:62
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.64
Under the “bail-jumping” statute,
Under statutes relating to “protection orders,” the judiciary determines the specific prohibitions against a restrained party which subjects the party to criminal liability.67 The Legislature has classified violations of protection orders as misdemeanors or felonies. The Legislature specifies the criminal intent necessary for a violation of the orders and also determines when protection orders may be issued. However, the judiciary determines whom the restrained person may or may not contact and what areas are off limits to the restrained person.68 Criminal liability is based upon violation of the statute and specific prohibitions determined by the courts.69
The Legislature has in many instances delegated to the executive branch the discretion to make rules and regulations for implementation of statutes. These have been upheld as constitutional delegations of power.73 For example, this court in American Federation of Teachers, Yakima Local 1485 v. Yakima School District No. 7 upheld the constitutionality of an act involving an organization of certificated school district employees who were victorious in an employee election.74 In that case we concluded the Legislature may grant broad powers to municipal corporations, including school districts, without delineating precise standards and guidelines, so long as those powers relate to local purposes of regulation or administration.75 We also concluded the Legislature’s grant of discretion to make rules and regulations for implementation of the statute was not an unconstitutional delegation of power.76
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
Appellant asserts the judicial branch is primarily responsible for administration of courthouse security.78 Relying on Carrick v. Locke,79 Appellant states two main concerns in separation of powers challenges to judicial action.80 First, the judicial branch must neither be assigned nor allowed tasks that are more properly accomplished by other branches; and second, no provision of law may impermissibly threaten the institutional
Citing the decision of this court in State v. Hartzog,83 Appellant asserts that “an integral part of any court’s duty to administer justice and fairly adjudicate disputes is to ensure that all parties have the opportunity to advance their cause in an atmosphere of safety, decorum, and fairness.”84 In Hartzog we stated “[i]t is fundamental that a trial court is vested with the discretion to provide for courtroom security, in order to ensure the safety of court officers, parties, and the public.”85 In that case we concluded it is within the “inherent power” and discretion of a trial court to impose additional security measures to provide for the safety of the public and persons in attendance upon the courts.86 The Appellant also relies on several cases decided by the Supreme Courts of Colorado,87 New Hampshire,88 and West Virginia89 to establish the authority of the judiciary in the matter of courthouse security.90 We find the cases interesting, but they are of no precedential value.
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.91 We have stated that the inherent powers of the courts are neither derived from nor dependent upon express constitutional authority, but the courts are empowered to do all that is reasonably necessary for the efficient administration of justice.92 This court has relied upon the inherent powers doctrine in a variety of circumstances: to grant bail;93 to compel the production of evidence and attendance of witnesses;94 to prescribe rules for granting of bail on appeal;95 to regulate the practice of law;96 and to adopt procedural rules for operation of the courts.97 Supreme Courts in other jurisdictions have also relied upon the inherent powers doctrine as the basis for resolving issues
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.100 Although
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
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
Respondent Wadsworth has not met his burden in establishing- that
The statute,
We reverse the decision of the Kitsap County District Court which ruled
Guy, C.J., Johnson, Madsen, Talmadge, and Ireland, JJ., and Sweeney, J. Pro Tem., concur.
Notes
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.
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
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
The motions to dismiss made the following assertions: (1)
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
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.
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
See
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 P.2d 796, cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986); State v. Freitag, 127 Wn.2d 141, 144-45, 896 P.2d 1254, 905 P.2d 355 (1995).
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:
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
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.,
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).
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
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 County District Court because I agree with the experienced judge of that court, the Honorable James M. Riehl, that our constitution does not permit the Legislature to delegate to the judiciary the task of defining, in whole or in part, what conduct constitutes criminal activity. Such a delegation is precisely what took place here because the “local judicial authority” was assigned the task of designating the areas in buildings used in connection with court proceedings in which weapons are prohibited. See
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 that, in the statute before us, the judiciary has been given the responsibility of deciding where, in court buildings, it is unlawful for citizens to carry weapons. See
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
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 statute106 “[t]he court, and not the Legislature, determines the dates for the person to appear in court.” Majority op. at 737. I also agree with the court that the statutes governing the issuance of protection orders107 require the judiciary to order “whom the restrained person may or may not contact.” Majority op. at 737. It is also correct that under criminal contempt statutes108 “[t]he judiciary provides specifics of the offense by declaring the acts of disobedience.” Majority op. at 737. What the majority overlooks, however, is that the court provides what the majority refers to as the “specifics” during the course of an adjudicative proceeding where the parties affected by the court’s ruling are before the court. In other words, while the court is establishing specifics, it is acting in its official capacity adjudicating the rights and liabilities of the parties. Here, on the other hand, when the local judicial authority makes the decision imposed upon it by
I also disagree with the majority that the delegation embodied in
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
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
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.
Another troublesome aspect of
In the final analysis, the local judicial authority has been given the ultimate discretion to decide where weapons will be prohibited
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.”
See, e.g.,
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