City of Bremerton v. Widell

• Decision Date: 06 June 2002
• Docket Number: No. 67451-5.,67451-5.
• Citation: 51 P.3d 733,146 Wash.2d 561
• Parties: CITY OF BREMERTON, Respondent, v. Karl WIDELL, and Larry Blunt, Petitioners.
• Court: Washington Supreme Court

51 P.3d 733

146 Wash.2d 561

CITY OF BREMERTON, Respondent, v. Karl WIDELL, and Larry Blunt, Petitioners.

No. 67451-5.

Supreme Court of Washington, En Banc.

Argued November 27, 2001.

Decided June 6, 2002.

Rovang Fong & Associates, W. David Rovang, Eric M. Fong, Port Orchard, for petitioners.

WAPA, Pamela Loginsky, Deputy, Olympia, for respondent.

Raegen N. Rasnic, amicus curiae on behalf of American Civil Liberties Union.

Anna M. Laurie, amicus curiae on behalf of Bremerton Housing Authority.

Marya A. Gingrey, amicus curiae on behalf of Seattle Housing Authority.

Michael J. Mirra and Eleanor Hamburger, amici curiae on behalf of Westpark/Tara Heights Resident Council and Hillside Terrace Resident Council.

MADSEN, J.

Karl Widell and Larry Blunt were each convicted in separate jury trials in Bremerton Municipal Court of multiple counts of second degree criminal trespass. The convictions were based on violations of the Bremerton Housing Authority's (BHA) antitrespassing policy, in place at BHA's Westpark facility. See Bremerton Municipal Code (BMC) 9A.36.150; RCW 9A.52.080. The cases were consolidated for appeal, culminating in affirmance by the Kitsap County Superior Court. We accepted direct review and affirm four of the convictions and reverse four.

FACTS

The BHA was established to provide affordable, sanitary, and safe housing to low income individuals. See RCW 35.82.010.020(9). Over 60 years ago, the Washington State Legislature declared the dire need for subsidized housing programs.

It is hereby declared: (1) That there exist in the state unsanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such unsanitary or unsafe accommodations; that within the state there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations; that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state and impair economic values; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; (2) that these areas in the state cannot be cleared, nor can the shortage of safe and sanitary dwellings for persons of low income be relieved, through the operation of private enterprise, and that the construction of housing projects for persons of low income (as herein defined) would therefore not be competitive with private enterprise; (3) that the clearance, replanning and reconstruction of the areas in which unsanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of state concern.

RCW 35.82.010 (originally enacted as Laws 1939, ch. 23, § 2); see also In re Housing Auth. of Seattle, 62 Wash.2d 492, 383 P.2d 295 (1963).

Westpark, a 74 acre, 582 unit development of single family homes, duplexes, and fourplexes, was established to further this mandate and mission. In 1996, in response to criminal activity in Westpark, BHA established an antitrespassing policy. This policy allows the revocation of a nonresident's license to be on the common areas of the premises if the nonresident is found engaging in specified criminal and offensive conduct, including, among other things, the making of "unreasonable noise" and "fighting." Clerk's Papers (CP) at 211.¹ Pursuant to the BHA policy, a person is issued a "trespass warning" when observed engaging in specified conduct. This warning informs the recipient that they "are prohibited from entering or remaining on the common areas of [Westpark] for any reason whatsoever" and that "enter[ing] or remain[ing] on [Westpark] property may result in your arrest for Criminal Trespass." CP at 759. The warning further provides notice of a right to appeal the exclusion, as well as a method for obtaining a temporary waiver. The BHA has contracted with the Bremerton Police Department to enforce this policy.

In July 1996, police issued a trespass warning to Petitioner Blunt for an incident involving assault and lewd conduct. Blunt's fiancée, Emily Malhi, lived in Westpark at all times relevant to this appeal. Between February 1997 and August 1997, Blunt was charged with six counts of criminal trespass in the second degree. On at least three of the occasions giving rise to the charges, Blunt was seen walking through the common areas of Westpark. On a fourth occasion, Blunt was exiting a taxi in front of his fiancée's home with his fiancée when he was spotted by police. On the fifth, Blunt was seen traveling in a vehicle on a public street in Westpark. Finally, on the sixth occasion, Blunt was at his fiancée's home and then fled police on the path along the public street.

Petitioner Widell received a trespass warning in August 1996, based on disorderly conduct and assault. Like Blunt, Widell's fiancée Patti Michelson, lived in Westpark at all times relevant to this appeal. Widell was charged with two counts of criminal trespass for two occasions on which police saw him on the premises of Westpark. On February 10, 1997, Widell was seen on the outer perimeter of the housing complex, several blocks from his fiancée's home. On July 7, 1997, Widell was seen at an intersection in Westpark with his fiancée.

Widell and Blunt were convicted on all counts in separate jury trials in Bremerton Municipal Court. Their cases were consolidated and appealed, and the Kitsap County Superior Court affirmed.

ANALYSIS

The BMC provisions identifying the crime of trespass in the second degree, and all applicable defenses, incorporate by reference the state statutory provisions on the same matter. See BMC 9A.36.150, .170. RCW 9A.52.080 states:

(1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.

(2) Criminal trespass in the second degree is a misdemeanor.

RCW 9A.52.090 provides several defenses to the above crime:

In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:

(1) A building involved in an offense under RCW 9A.52.070 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain; or

(4) The actor was attempting to serve legal process ....

(Emphasis added.) Petitioners raise several challenges to their convictions. First, both Petitioners assert that they were invited by their fiancées to be on Westpark property, and that these invitations prevail over the right of BHA to exclude them from Westpark. Second, each contends that exclusion from Westpark unduly burdened his right of "intimate association" by denying the right to visit his fiancée. And, finally, they both argue that BHA's antitrespassing policy is unconstitutionally overbroad and void for vagueness.

I.

As an initial matter, the City argues that the validity of BHA's antitrespassing policy, as well as the validity of the orders excluding Petitioners from Westpark, cannot be raised in a criminal proceeding. Specifically, the City argues that Petitioners should be collaterally barred from questioning their initial exclusion from Westpark, which constitutes the underlying basis for their criminal charges. See State v. Coe, 101 Wash.2d 364, 679 P.2d 353 (1984). We reject this contention.

The City attempts to analogize this case to criminal contempt decisions, in which it is generally held that a court order "cannot be collaterally attacked in contempt proceedings arising from its violation, since a contempt judgment will normally stand even if the order violated was erroneous or was later ruled invalid." Id. at 370, 679 P.2d 353. This is true, unless the court issuing the underlying order lacked jurisdiction to issue the order. Id. The policy underlying the collateral bar rule is respect for independent judicial decision making. We see no reason to extend this deference to housing authority policies or exclusion orders issued by individual police officers.

The City further relies on City of Bremerton v. Spears, 134 Wash.2d 141, 164, 949 P.2d 347 (1998), in support of its argument that Petitioners should not be allowed to challenge the validity of BHA's antitrespassing policy. The defendant in Spears was charged with violation of a state statute requiring motorcycle riders to wear helmets approved by the state patrol. The defendant argued that the patrol violated the Administrative Procedure Act (chapter 34.05 RCW) requirements in promulgating the regulation defining approved helmets. This Court declined to consider that challenge, however, because the defendant had failed to make the patrol a party to the action. Id. at 164, 949 P.2d 347. Nevertheless, the defendant was permitted to challenge the state patrol's regulations as unconstitutionally vague. Id. at 161-64, 949 P.2d 347.

Unlike the argument disallowed in Spears, Petitioners' challenge here does not involve the procedures followed by BHA in promulgating the antitrespass policy nor BHA's authority to do so. Instead, Petitioners' arguments are more similar to the constitutional challenges which were permitted in Spears. Whether the antitrespass policy may serve to exclude the Petitioners is far from a collateral matter or procedural complaint. See State v. Howe, ...