City of Bothell v. Barnhart

• Decision Date: 28 July 2011
• Docket Number: No. 84907–2.,84907–2.
• Citation: 172 Wash.2d 223,257 P.3d 648
• Court: Washington Supreme Court
• Parties: CITY OF BOTHELL, Petitioner,v.James K. BARNHART, Respondent.

172 Wash.2d 223

257 P.3d 648

CITY OF BOTHELL, Petitioner,

v.James K. BARNHART, Respondent.

No. 84907–2.

Supreme Court of Washington, En Banc.

Argued May 24, 2011.Decided July 28, 2011.

Joseph N. Beck, Paul Reginald Byrne II, City of Bothell Attorney's Office, Bothell, WA, for Petitioner.Mark R. Stephens, The Law Office of Mark R. Stephens, Everett, WA, for Respondent.Daniel Brian Heid, Auburn, WA, amicus counsel for City of Auburn.FAIRHURST, J.

[172 Wash.2d 226] ¶ 1 The city of Bothell, which encompasses portions of both King County and Snohomish County, charged James K. Barnhart in Bothell Municipal Court with stalking in the Snohomish County portion of the city. The jury, which was composed of two King County and four Snohomish County jurors, ultimately convicted Barnhart. The Court of Appeals reversed Barnhart's conviction because the impaneling of the King County jurors, although valid under RCW 2.36.050, violated article I, section 22 of the Washington Constitution. We affirm the Court of Appeals and hold that the composition of Barnhart's jury violated his right to an “impartial jury of the county in which the offense is charged to have been committed.” Wash. Const. art. I, § 22.

FACTS AND PROCEDURAL POSTURE

¶ 2 On April 3, 2007, Bothell charged Barnhart with the crime of stalking. While Bothell, Washington, encompasses portions of both Snohomish County and King County,¹ both parties concede that the alleged stalking occurred entirely within Snohomish County. The case was tried before a jury in Bothell Municipal Court.

¶ 3 Pursuant to RCW 2.36.050, the Bothell Municipal Court drew its jury panel from Bothell regardless of the county where the jurors resided. The jury ultimately included two residents of King County and four residents of Snohomish County. Before the commencement of trial, Barnhart raised a for-cause challenge to the two King County jurors. The judge denied the for-cause challenges, and Barnhart declined to exercise any of his peremptory challenges. The jury ultimately convicted Barnhart of stalking.

¶ 4 Barnhart appealed the conviction to the King County Superior Court, arguing, among other things, that the impaneling of King County residents violated article I, section 22 of the Washington Constitution because these jurors were not from Snohomish County, where the crime was alleged to have been committed. Bothell, although arguing that its jury selection procedure was constitutional, did not alternatively argue harmless error or waiver by failure to use peremptory challenges. The superior court affirmed the conviction, holding that no error had occurred because the jury selection procedure was valid under RCW 2.36.050 and that RCW 2.36.050 implements the intent of article I, section 22.

¶ 5 Barnhart moved for discretionary review. A commissioner of the Court of Appeals granted discretionary review of “whether a jury may include members who reside other than in the county in which the offense is alleged to have occurred.” Pet. for Review, App. D at 2. The Court of Appeals reversed Barnhart's conviction, holding the jury selection in Barnhart's trial violated article I, section 22. City of Bothell v. Barnhart, 156 Wash.App. 531, 537–38, 234 P.3d 264 (2010).

¶ 6 In a footnote, the Court of Appeals declined to reach Bothell's alternative grounds for affirmance, harmless error, and waiver by failure to use peremptory challenges. Id. at 538 n. 2, 234 P.3d 264. The Court of Appeals explained that it had granted review of only the constitutional jury selection issue under RAP 2.3(e), that review of these other issues would be “imprudent” given that the issues were not briefed and addressed below, and that Bothell had failed to sufficiently argue why these issues should not be decided against it. Barnhart, 156 Wash.App. at 538 n. 2, 234 P.3d 264.

¶ 7 Bothell petitioned for discretionary review, arguing that the Bothell Municipal Court jury selection procedure did not violate article I, section 22, that Barnhart waived any claim of error regarding the jury by failing to exercise his peremptory challenges, and that any error that did occur was harmless. We granted review. City of Bothell v. Barnhart, 170 Wash.2d 1005, 245 P.3d 226 (2010).

ISSUES

A. Did the Bothell Municipal Court violate Barnhart's article 1, section 22 rights by selecting jurors from both Snohomish County and King County, when the crime Barnhart was charged with was committed only in Snohomish County?

B. Should this court reach Bothell's alternative grounds for affirmance when the claims were not raised on appeal to the King County Superior Court, and the Court of Appeals on discretionary review expressly excluded those issues from the scope of review?

ANALYSIS

A. Article I, section 22 of the Washington Constitution

¶ 8 Bothell argues that selecting jurors from members of the community served by the Bothell Municipal Court under RCW 2.36.050 does not violate article I, section 22 of the Washington Constitution. The Washington Constitution provides, “In criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed.” Const. art. I, § 22 (emphasis added). However, the legislature has provided that in courts of limited jurisdiction, such as municipal courts, “[j]urors for the jury panel may be selected at random from the population of the area served by the court.” RCW 2.36.050 (emphasis added). Neither party disputes that the Bothell Municipal Court jury selection procedure complied with RCW 2.36.050. Rather, Barnhart argues that Bothell Municipal Court's application of RCW 2.36.050 in his trial violated his article I, section 22 right because it permitted the judge to impanel jurors from outside the county where the crime was committed.

¶ 9 “We presume statutes are constitutional and review challenges to them de novo.” City of Seattle v. Ludvigsen, 162 Wash.2d 660, 668, 174 P.3d 43 (2007) (citing State v. Shultz, 138 Wash.2d 638, 642–43, 980 P.2d 1265 (1999)). The challenger bears the burden of showing the statute is unconstitutional beyond a reasonable doubt. State v. Lanciloti, 165 Wash.2d 661, 667, 201 P.3d 323 (2009); Island County v. State, 135 Wash.2d 141, 146–47, 955 P.2d 377 (1998). “When interpreting constitutional provisions, we look first to the plain language of the text and will accord it its reasonable interpretation.” Wash. Water Jet Workers Ass'n v. Yarbrough, 151 Wash.2d 470, 477, 90 P.3d 42 (2004). Reasonable interpretation means that “[t]he words of the text will be given their common and ordinary meaning, as determined at the time they were drafted.” Id. “[I]f a constitutional provision is plain and unambiguous on its face, then no construction or interpretation is necessary or permissible.” Anderson v. Chapman, 86 Wash.2d 189, 191, 543 P.2d 229 (1975). “The wisdom of statutes or of constitutional provisions is not subject to judicial review.” Id. at 196, 543 P.2d 229. “The courts cannot engraft exceptions on the constitution, ‘no matter how desirable or expedient such ... exception might seem.’ ” Id. (alteration in original) (quoting State ex rel. O'Connell v. Port of Seattle, 65 Wash.2d 801, 806, 399 P.2d 623 (1965)).

¶ 10 The dispute in this case is over the plain meaning of “county” in article I, section 22. Barnhart argues that “county” means nothing more than its legal definition as a subdivision of this state. While Bothell argues that the framers intended the term “county” to mean “the communities served by the court.” Suppl. Br. of Pet'r at 12. In 1889, the framers of our constitution appear to have had a clear understanding of the legal definition of “county,” having drafted article XI covering county, city, and township organization. Wash. Const. art. XI. The framers expressly provided that “[t]he several counties of the Territory of Washington existing at the time of the adoption of this Constitution are hereby recognized as legal subdivisions of this state.” Id. art. XI, § 1. The framers were familiar with “counties” as legal subdivisions of this state, and their inclusion of the term “county” in article I, section 22 should not be interpreted as referencing any other boundary line.

¶ 11 This court has previously addressed why the “county” residence requirement was included in article I, section 22, as well as the meaning of “county” within that provision:

Under the old rule of the common law, the jury was required to come from the vicinage or neighborhood of the place where the crime was alleged to have been committed, or the cause of action, if civil, arose; and it was a ground of challenge if some given number were not summoned from the hundred in which such place lay. This rule was gradually changed until the law was satisfied if the jury was returned from any part of the county, and the words “jury of the county,” as used in our constitution, have never been held to mean more than that the jurors, when summoned, should come from some part of the county.

State v. Newcomb, 58 Wash. 414, 418, 109 P. 355 (1910). Although recognizing that jurors may be drawn from subdivisions within the county where the crime was committed, we have never held that a juror could be selected from outside the county. Id. at 417–18, 109 P. 355 (upholding constitutionality of statute requiring jurors to be drawn equally from each district within a county where the crime was committed); State v. Twyman, 143 Wash.2d 115, 125, 17 P.3d 1184 (2001) (upholding constitutionality of RCW 2.36.050 in the context of a municipal court with jurisdiction in only one county, because although jurors were drawn from only three area codes within the county, all jurors resided in the county where the crime was committed); City of Tukwila v. Garrett, 165 Wash.2d 152, 164–65, 196 P.3d 681 (2008) (upholding constitutionality of RCW 2.36.050 in the context of a municipal court with jurisdiction in a city...