Montague v. Vinzant
| Decision Date | 23 April 1981 |
| Docket Number | No. 80-3118,80-3118 |
| Parties | Robert MONTAGUE, Petitioner-Appellant, v. Douglas VINZANT, Warden, Washington State Penitentiary and Slade Gorton, Attorney General of the State of Washington, Respondent-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert E. Mack, Asst. Atty. Gen., Olympia, Wash., argued for respondent-appellees; Nate D. Mannakee, Olympia, Wash., on brief.
Appeal from the United States District Court for the Eastern District of Washington.
Before WRIGHT, POOLE and NORRIS, Circuit Judges.
Montague was arrested in January 1967 on a motor vehicle violation and a search of his car revealed marijuana. He was arraigned in February on a charge of felony possession of narcotic drugs, was convicted on April 20, 1967, and sentenced to a minimum of five and a maximum of 20 years in state prison. His conviction was upheld on appeal.
In 1969 the state legislature reclassified possession of marijuana from a felony to a misdemeanor. It subsequently authorized the State Board of Prison Terms and Parole to reduce the mandatory minimum term for persons convicted under the felony statute to not less than the minimum under the misdemeanor statute. RCW 9.95.040 note.
The Board gave Montague a three-year mandatory minimum term and placed him on parole in August 1970. His maximum sentence was not altered, and parole has since been revoked and reinstated on more than one occasion. He has not completed his sentence.
In 1978 Montague sought a writ of habeas corpus in federal court, asserting that his conviction violated equal protection for two reasons: (1) he did not benefit from the later decision of the legislature to make possession of marijuana a misdemeanor because the Washington Supreme Court determined that the change would apply retroactively We affirm the judgment.
only to those cases still pending; and (2) Washington law vested unconstitutional discretion in the prosecutor to charge possession as either a felony of a misdemeanor. The district court denied relief.
Washington has a general "savings" statute, which provides in part:
No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act ....
RCW 10.01.040.
In State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970), the court held the law making possession of marijuana a misdemeanor was intended by the legislature to apply to pending cases. 78 Wash.2d at 13, 475 P.2d at 113. It reversed Zornes' felony conviction because his case was pending at the time the law was changed.
Cases decided before the change in the law were not affected. The legislative intent identified in Zornes applied only to pending cases.
The Washington Supreme Court has upheld, either explicitly or implicitly, the "savings" statute in a long line of cases. See, e. g., State v. Fenter, 89 Wash.2d 57, 569 P.2d 67 (1977); State v. Hanover, 55 Wash. 403, 405, 107 P. 388 (1910) (on rehearing).
Montague argues the distinction between decided cases and pending cases is a denial of equal protection. He did not raise this issue in his habeas corpus petition filed with the state supreme court. Under normal circumstances, the district court should not have considered the issue because he failed to exhaust state remedies. See Carothers v. Rhay, 594 F.2d 225, 228-29 (9th Cir. 1979). 1
Exhaustion may be excused, however, if it would be futile. Sweet v. Cupp, 640 F.2d 233 (9th Cir., 1981).
The futility doctrine ... promotes comity by requiring exhaustion where resort to state courts would serve a useful function but excusing compliance where (exhaustion) would only create an unnecessary impediment to the prompt determination of individuals' rights.
Id., at 236. In light of the state court's holding in Zornes, and its consistent application of the "savings" statute for over 70 years, requiring exhaustion would create an unnecessary impediment to prompt resolution of Montague's equal protection argument.
The district court rejected the argument on the merits, as do we. Montague does not argue that the state was precluded from changing the crime from a felony to a misdemeanor unless it reopened every case decided under the felony statute. Rather, he argues that the distinction between pending and decided cases is irrational because those whose cases were pending at the time the law was changed may have committed the crimes before those whose cases, due to speedier trial and appellate proceedings, had been decided. He argues that the constitution requires that application of the new law be based on when a defendant committed the crime, instead of when his case was decided.
The classification between pending cases and decided cases is not suspect and does not penalize the exercise of a fundamental right. Cf. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965) (). It must be upheld if there is a rational basis for it. See Vance v. Bradley, 440 U.S. 93, 97, 99 Limiting the retroactive effect of the law to pending cases provides an obvious saving of judicial and law enforcement resources. This was the rule at common law, see State v. Zornes, 78 Wash.2d at 12, 475 P.2d at 112, and the legislature had a rational basis for adopting it here.
S.Ct. 939, 943, 59 L.Ed.2d 171 (1979) (rational basis test).
Montague's second argument is premised on the assertion that the prosecutor could have charged him with a misdemeanor under the Dangerous Drug Act instead of a felony under the Narcotic Drug Act. This argument fails because the prosecutor could not have charged Montague under the Dangerous Drug Act as it then read.
The Dangerous Drug Act provided that:
It shall be unlawful for a person ... to sell, amytal, luminal, veronal, barbital, acid diethylbarbituric, or any salts, derivatives, or compounds thereof, ... para-amino-benzene sulfonamide, sulfanilamid, sulfamidyl, prontylin, prontosil, neo prontosil, neo prontylin, edimalin, sulfonamid, ... any amphetamine or any dextroamphetamine, ... or any other drug which is required by any applicable federal or state law or regulation to be used only on prescription, except upon the written or oral order or prescription of a physician, surgeon, dentist or veterinary surgeon....
Ch. 6, § 1, 1939 Wash. Laws 12 (1939) as amended, Ch. 24, § 1, ...
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