City of Seattle v. Hill

• Decision Date: 21 December 1967
• Docket Number: No. 38978,38978
• Citation: 435 P.2d 692,72 Wn.2d 786
• Court: Washington Supreme Court
• Parties: The CITY OF SEATTLE, Respondent, v. Wayne J. HILL, Appellant.

Page 786

72 Wn.2d 786

435 P.2d 692

The CITY OF SEATTLE, Respondent, v. Wayne J. HILL, Appellant.

No. 38978.

Supreme Court of Washington, En Banc.

Dec. 21, 1967.

Michael H. Rosen Arnold J. Barer, Luvern V. Rieke, American Civil Liberties Union, Seattle, for appellant.

A. L. Newbould, Corporation Counsel, John R. Nowell, Asst. Corp. Counsel, Seattle, for respondent.

Peter Barton Hutt, Richard A. Merrill, Covington & Burling, Washington, D.C., Elliott, Lee, Carney, Thomas & Smart, James A. Holman, Seattle, amici curiae.

HALE, Judge.

Is chronic addictive alcoholism a disease? Is it a disease that relieves one of liability under the criminal laws prohibiting drunkenness and disorderly conduct in public? Art city ordinances which forbid public drunkenness, and disorderly conduct induced by drunkenness, unconstitutional when applied to chronic addictive alcoholics? This case began with one of the two million arrests for public intoxication made annually in this country. See President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime (1967), at 233.

Arrested and convicted of unlawful public drunkenness in Seattle Municipal Court and sentenced to 180 days in jail, the defendant appealed to and was tried de novo by the superior court sitting without a jury. Urging that he was helpless to avoid violating the ordinance because of his addiction to alcohol, he now appeals his superior court conviction.

It was close to midnight, May 4, 1966, when a citizen, accosting Patrolman Robert F. Wegner as he walked his beat, told him that a man was down. Hurrying to the 500 block on Virginia Street, the two men saw the defendant lying sprawled on his side with the lower half of his body across a public sidewalk and his head and shoulders on a wooden porch adjacent to it. Officer Wegner tried to arouse the defendant, describing the event in his testimony as follows:

A. He couldn't be aroused. I spoke to him first and told him to get on his feet and he couldn't be roused so we had to shake him and after shaking him three or four times he finally opened his eyes. Q. Did you smell any unusual odor about him? A. There was a very strong odor of liquor on him. Q. Was he able to stand and walk normally? A. I asked the man to stand up. He tried and couldn't stand up. So my partner and I assisted him and held him up. Q. In your opinion Mr. Hill then was under the influence of alcohol? A. Yes, he was. Q. And he was under the influence to such an extent that he could not walk unassisted? A. That's right. Q. Did you have any conversation with Mr. Hill? Did you ask him anything? A. I asked him what he had been drinking. He said wine and beer. Q. Did he ask you anything? A. I asked him where he lived. He said he figured seven or eight blocks away. Q. Did he ask you to take him home? A. He said, yes, 'Take me home.' Q. What did you say to that? A. I said if he couldn't make it home by himself, which he could't do because he couldn't walk, that I would have to put him in jail. Q. And so then you did? A. Yes, we took him to the call box on the corner, rang for the wagon, and the wagon crew took him to jail.

Mr. Hill, the defendant, was semiconscious when first seen by the policeman and his citizen assistant. Aside from being drunk, semicomatose and lying across a public sidewalk at a late and unusual hour, the defendant was not disorderly; neither was he noisy, boisterous, belligerent nor profane; he was not assaultive or promoting a commotion.

Charged under Seattle ordinance No. 16046, § 1, Seattle City Code 12.11.020, which reads:

It shall be unlawful for any person to be guilty of fighting, drunkenness or of riotous or disorderly conduct, or of any conduct tending to disturb the public peace, or to use any profane or abusive language, or to engage in any act or practice whereby the peace or quiet of the city may be disturbed, or to use any obscene language or be guilty of any indecent or immoral act, practice or conduct tending to debauch the public morals.

the defendant appeals his conviction on the ground that he is a chronic addictive alcoholic; that he is thus suffering from a disease which, he says, renders him 'powerless to avoid violating the ordinance;' that he was convicted not of an offense but rather of suffering from a condition or being of a status; that his conviction of drunkenness violates Const. art. 1, § 14, forbidding cruel punishments, and the eighth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment; and that, under Const. art. 1 § 3, and the fifth amendment to the United States Constitution, the ordinance under which defendant was convicted and sentenced is an unreasonable exercise of the police power and deprived the defendant of his liberty without due process of law. The challenge ordinance has been on the books since 1907, and under it hundreds of thousands of arrests have been made and convictions entered.

In asserting the hopelessness of his predicament, and the inevitability of its consequences, defendant showed that he had been convicted of drunkenness 98 times; that his total sentences ran to 17 1/2 years although he had served only a fraction of this, being repeatedly let out of jail on suspended sentences. He refers to himself as a 'chronic drunk' and dates his serious drinking problems from 1946 when his wife divorced him. At age 62, in addition to his 98 convictions for public drunkenness, he has been twice convicted of escaping while a jail trusty. The accumulated unserved time from these convictions amounts to about 5 years, but there appears to be no proceedings pending of threatened to make him serve any part of this.

There is little doubt that defendant shows a fairly typical case history of an alcoholic. But he shows too that he possesses substantial volitional control over his actions and whether he will be found drunk in public. He testified that in 1963 he entered Firland Sanatorium for the treatment of trberculosis and during an 18 months' stay there drank no intoxicants. Despite 20 arrests for public drunkenness after leaving the Sanatorium, he expressed the opinion on cross-examination that, if he could go 4 years without a drink, he could be cured--but would give no estimate as to the minimal time needed.

Dr. Edward M. Pattison, eminently qualified specialist in psychiatry and the treatment of alcoholism, while emphasizing the inability of an alcoholic to stop drinking once he had started, said that persons so afflicted typically remained sober for periods of 6 to 8 months voluntarily but eventually return to their drinking. Asked why the defendant drank, the doctor said:

One, the chronic addictive alcoholic finds solace and comfort in drinking. There is a certain degree of escape from feelings of guilt and feelings of shame and feelings of loneliness which he finds in drinking which he does not find from normal social relations that you might say the average person would find.

He said, too, that the element of guilt figured largely in the inducement, that guilt

is a common hallmark of all chronic addictive alcoholics, severe feelings of guilt and shame which can only be overcome by taking more alcohol so that one does not experience these feelings.

This creates a cycle, drinking, feeling guilty and shameful about drinking, returning to drinking, again those excessive feelings of guilt and shame, so it sets up a perpetual cycle.

Dr. John H. Lindberg, a specialist in internal medicine, testified that he gave Mr. Hill a physical examination and found no physical evidence of alcoholism, but readily diagnosed him as a chronic addictive alcoholic from his medical history. He said that Mr. Hill, considering his frequent drunkenness over so long a time, showed very little deterioration of the brain cells--a surprising lack of an expected consequence. Dr. Lindberg testified that alcoholism, unrelieved and untreated, produces cirrhosis of the liver, i.e., destruction of liver cells and their replacement by scar tissue, and that this inevitably causes death.

If uninterrupted drunkenness is a direct cause of death, then undeniably frequent periods of confinement in a clean city jail with nourishing food during 20 years of chronic addictive alcoholism, were of beneficial therapeutic effect. Defendant's medical history contributes to the idea that laws against public drunkenness are designed to protect not only society but the offender too. Although we would not recommend jail confinement as a suitable substitute for medical, pyschiatric and social therapy in the treatment of alcoholism, we observe that, in the absence of any other available alternatives, the afflicted person derives considerable benefit and protection from it. So did Mr. Hill.

Undoubtedly a beneficial therapy must have intervened to keep the defendant in so good a physical condition that, after 20 years of chronic addictive alcoholism, his doctor could find no physical symptoms of the sickness and had to rely exclusively on a case history to confirm the diagnosis of chronic addictive alcoholism. It thus seems reasonable to conclude that Mr. Hill's frequent periods of confinement in jail, following his bouts of drunkenness, were to a large degree responsible for his continuing physical health.

Dr. Lindberg said that Mr. Hill had potentials 'whereby he may be able to refrain from drinking but there has been no demonstration of this up until this time.' He said, however, that, even without any outside assistance whatever, there was a 5 per cent chance of successful self-treatment and that developing the will to self-rehabilitation was an important aspect in any treatment of alcoholism. As a physician specializing in internal medicine, with extensive practice in treating alcoholism, he emphasized that the will to recover was very important in achieving success.

Finally, from the testimony of Judge Charles Z. Smith, then of...