Maxfield, Matter of

• Decision Date: 16 October 1997
• Docket Number: Nos. 64083-1,64200-1,s. 64083-1
• Citation: 133 Wn.2d 332,945 P.2d 196
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of Mark MAXFIELD, Petitioner. In the Matter of the Personal Restraint Petition of Pamela MAXFIELD, Petitioner.

Page 332

133 Wn.2d 332

945 P.2d 196

In the Matter of the Personal Restraint Petition of Mark MAXFIELD, Petitioner In the Matter of the Personal Restraint Petition of Pamela MAXFIELD, Petitioner.

Nos. 64083-1, 64200-1.

Supreme Court of Washington En Banc.

Argued March 11, 1997.

Decided Oct. 16, 1997.

MacDonald, Hoague & Bayless, Timothy Ford, Seattle, for Petitioner

David Skeen, Jefferson County Prosecutor, Port Townsend, for Respondent State of Washington Jefferson.

David Bruneau, Clallam County Prosecutor, Port Angeles, for Respondent State of Washington Clallam.

JOHNSON, Justice.

In these two consolidated personal restraint petitions, we are asked to decide whether Mark and Pamela Maxfield were denied effective assistance of counsel when their attorney failed to adequately brief the state constitutional issue in the direct appeal of their convictions for possession and manufacture of a controlled substance. Specifically, we must decide whether there is a state constitutional protected privacy interest in electric consumption records prohibiting disclosure of such records by a public utility district employee. Because the Maxfields' rights under article I, section 7 of the Washington Constitution were violated, we hold they were denied effective assistance of counsel and grant their petition to vacate their convictions and dismiss the charges.

FACTS

In late 1991 and early 1992, Mark and Pamela Maxfield were convicted of possession and manufacture of a controlled substance. The convictions arose out of the Maxfields' involvement in two marijuana grow operations in Clallam and Jefferson counties. We affirmed those convictions in State v. Maxfield, 125 Wash.2d 378, 886 P.2d 123 (1994).

The genesis of the State's investigation of the Maxfields was a telephone call from Warner Childress, the treasurer-comptroller of the Clallam County Public Utility District On June 6, 1991, Drug Task Force member Kirk D. Chaney received a telephone call from Childress, informing Chaney of records indicating high power usage at 431 Atterbury Road. During the telephone call, Childress told Chaney there were two meters on the 431 Atterbury Road property, one on the house and one on the garage, and the meter on the garage indicated high readings. Chaney testified that Childress also told him the PUD had replaced two transformers at that location because of the load generated by the power usage in the garage. Childress testified he did not remember whether he learned of the blown transformers before or after the call to Chaney. Childress also testified that while the electric consumption records were high, they did not indicate an increase in consumption because the service at 431 Atterbury Road was new service.

PUD), to a member of the Clallam County Drug Task Force (Drug Task Force). Childress was the PUD's designated contact person for law enforcement. He had also attended general PUD employee meetings where members of local law enforcement requested assistance in the form of information on suspicious activities.

Although he did not recall this specific instance, Childress testified he usually received information about suspicious power levels from meter readers and then he or the meter reader would contact the Drug Task Force. He had previously contacted the Drug Task Force on his own initiative on at least six occasions.

Based on this contact and pursuant to RCW 42.17.314 (the public disclosure act), the Drug Task Force requested the power records for 431 Atterbury Road and began an investigation. Ultimately, the Drug Task Force obtained a search warrant for 431 Atterbury Road and discovered a marijuana grow operation. ¹ The Maxfields were charged with possession of a controlled substance and intent to manufacture or deliver a controlled substance. Maxfield Following their direct appeal, the Maxfields individually filed personal restraint petitions, requesting relief based on double jeopardy and ineffective assistance of counsel for failure to brief the Gunwall factors. The Court of Appeals dismissed both petitions, holding double jeopardy was not implicated and Petitioners had failed to meet their burden on the ineffective assistance of counsel claim because actions of public utility district employees do not implicate the state constitution. In re Personal Restraint of Maxfield, 81 Wash.App. 705, 915 P.2d 1134 (1996). We granted discretionary review solely on the state constitutional issue.

                125 Wash.2d at 384, 886 P.2d 123.   The trial court denied the Maxfields' motion to suppress the evidence and both were convicted based on stipulated facts.  Maxfield, 125 Wash.2d at 384, 886 P.2d 123.   On direct appeal, this court held RCW 42.17.314 had been complied with and the Maxfields' Fourth Amendment rights had not been infringed.  This court specifically declined to address the question of the Maxfields' privacy interest under the state constitution because of defense counsel's failure to brief the Gunwall 2 factors.  Maxfield, 125 Wash.2d at 394, 886 P.2d 123
                

ANALYSIS

I

The sole issue remaining in the review of the Maxfields' PRPs involves the extent of protection afforded state citizens under article I, section 7. As required by our case law, the Maxfields have completed the requisite first step in a state constitutional case, allowing for meaningful review in this court, by adequately briefing the Gunwall factors. See City of Seattle v. McCready, 123 Wash.2d 260, 267-68, 868 P.2d 134 (1994); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).

The specific provision of our state constitution at issue is article I, section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const. art. I, § 7. Before undertaking a Gunwall analysis and determining the extent of article I, section 7's protections in this context, we must first determine whether there is state action such that the provision is applicable at all. As a general proposition, neither state nor federal constitutional protections against unreasonable search and seizure are implicated in the absence of state action. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159 (1921); State v. Ludvik, 40 Wash.App. 257, 262, 698 P.2d 1064 (1985); 1 Wayne R. LaFave, Search and Seizure § 1.8 (3d ed.1996). While state action is required, action by law enforcement is not necessary to invoke the protections of article I, section 7. State v. Vonhof, 51 Wash.App. 33, 37, 751 P.2d 1221 (1988) (action by tax appraiser implicates article I, section 7); see also McCready, 123 Wash.2d 260, 868 P.2d 134 (article I, section 7 applies to city building inspectors' authority to perform nonconsensual inspections.); Kuehn v. Renton Sch. Dist. No. 403, 103 Wash.2d 594, 602, 694 P.2d 1078 (1985) (school officials and parents were state actors for purposes of Fourth Amendment and article I, section 7 when conducting general search of students luggage).

Here, the complained of action was undertaken by Warner Childress, the treasurer-comptroller of the PUD. Public utility districts are municipal corporations, created and defined by statute, and with only those powers conferred on them by charter, statute, or the constitution. City of Tacoma v. Taxpayers of Tacoma, 108 Wash.2d 679, 685-86, 743 P.2d 793 (1987); see RCW 54.04.020. So long as Childress was acting in his official governmental capacity, his actions invoke the protections of article I, section 7. See Vonhof, 51 Wash.App. at 37, 751 P.2d 1221 (tax appraiser acting in official capacity is state actor); Ludvik, 40 Wash.App. at 262-63, 698 P.2d 1064 (state game agent was not acting in official capacity when he viewed drug transactions from his home).

There is no question that Childress was acting in his official

capacity as the treasurer-comptroller, and designated law enforcement contact, when he noticed or was alerted to the Maxfields' electric consumption records and contacted the Drug Task Force. Childress testified that in the course of his employment, if he discovered or was alerted to suspicious power usage he would contact the Drug Task Force, and had done so on at least six previous occasions. He also testified law enforcement officers had previously made presentations to the PUD's employees asking for assistance in identifying any suspicious activities they might discover. Here, in the same manner as the tax appraiser in Vonhof, Childress was acting in his official capacity when he discovered the high electric consumption levels at 431 Atterbury Road and contacted the police; therefore, we find the constitutional protections in article I, section 7 are implicated in this case.

II

Having determined article I, section 7 applies, we must next examine that provision and determine whether the Maxfields have a protected privacy interest in their electric consumption records prohibiting disclosure by a PUD employee without authority of law. The framework used to make such determinations is set forth in Gunwall, and consists of six nonexclusive criteria. Gunwall, 106 Wash.2d at 58, 720 P.2d 808. In Gunwall, and on numerous subsequent occasions, this court has examined the state constitutional provision at issue here, article I, section 7, and found that the protections it affords are "qualitatively different from, and in some cases broader than, those provided by the Fourth Amendment." McCready, 123 Wash.2d at 267, 868 P.2d 134; see, e.g., State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990); Gunwall, 106 Wash.2d 54, 720 P.2d 808. Examining article I, section 7 in light of Gunwall, specifically its language, structure, and our preexisting case law and statutes, we hold there is a privacy interest in electric consumption records preventing their disclosure by a public utility district employee without authority of law. In keeping with our approach in On its face, article I, section 7's structure and language are...