State v. Conte

• Decision Date: 15 March 2007
• Docket Number: No. 78995-9.,78995-9.
• Citation: 159 Wn.2d 797,154 P.3d 194
• Parties: STATE of Washington, Appellant, v. John Gilbert CONTE; Frank Francis Colacurcio, Jr.; Frank Francis Colacurcio, Sr.; and Marsha Marie Furfaro, Respondents.
• Court: Washington Supreme Court

154 P.3d 194

159 Wn.2d 797

STATE of Washington, Appellant, v. John Gilbert CONTE; Frank Francis Colacurcio, Jr.; Frank Francis Colacurcio, Sr.; and Marsha Marie Furfaro, Respondents.

No. 78995-9.

Supreme Court of Washington, En Banc.

Argued November 28, 2006.

Decided March 15, 2007.

Scott Allen Peterson, John Christopher Carver, Seattle, for Appellant.

Robert Steven Mahler, Bullivant Houser Bailey, Irwin H. Schwartz, Richard Alan Hansen, Allen Hansen & Maybrown, PS, John Winn Wolfe, Wolfe Leinbach, Seattle, for Respondents.

MADSEN, J.

¶ 1 The defendants, John Conte, Frank Colacurcio, Jr., Frank Colacurcio, Sr., and Marsha Furfaro, were charged with nine counts of violating RCW 40.16.030. The charges relate to campaign disclosure reports filed by three Seattle City Council members during their 2003 reelection campaigns. The State alleges that contributions made by some individuals to these council members were reimbursed in cash by the defendants. The State further alleges that as a result of the defendants' scheme, the candidates filed false campaign disclosure reports because they did not identify the true source of the contributions.

¶ 2 The trial court granted the defendants' motion for dismissal of the charges, holding, as a matter of law, that the public disclosure act (PDA), chapter 42.17 RCW, provides the exclusive penalties for the conduct alleged by the State.

¶ 3 The State maintains that chapter 42.17 RCW does not bar prosecution of the defendants under RCW 40.16.030. We agree. Accordingly, we reverse the trial court, reinstate the charges against the defendants, and remand for further proceedings.

FACTS

¶ 4 On July 12, 2005, the State filed an information charging the defendants with one count each of conspiracy to offer a false instrument for filing or record, in violation of RCW 40.16.030 and RCW 9A.28.040(1).¹ The information also charges each of the defendants with at least one count of knowingly procuring, offering, or causing an innocent person to offer a false instrument for filing or record in violation of RCW 40.16.030 and RCW 9A.08.020(1) and (2)(a) (a total of eight additional counts each applying to one or two of the defendants).²

¶ 5 According to the certification for determination of probable cause, which was prepared by an investigator for the Seattle Ethics and Elections Commission:

The Colacurcio family owns and operates Rick's, an adult entertainment establishment commonly called a strip club . . . [and] sought a rezone to obtain more parking for Rick's for a number of years. In the 1980's additional parking was created on property owned by Rick's without city approval. Rick's was given the option of removing the parking lot or paying a fine, and chose to pay the fine. Rick's then initiated efforts to get the parking approved for use by obtaining a rezone. Attempts to get the rezone failed in 1988 and 1998.

Rick's applied again in September 2002. The rezone was opposed by the City [of Seattle] and denied by a hearing examiner. Rick's appealed, so the rezone issue was set to be decided by the City Council, acting as a quasi-judicial body. When issues are to be resolved by the City Council acting in a quasi-judicial capacity, City Council rules prohibit council members from undisclosed ex-parte contact with litigants or their agents. On July 7, 2003, the City Council approved the rezone 5-4.

In the fall of 2003 the Seattle Ethics and Elections Commission . . . fined council members Jim Compton and Heidi Wills for violation of [Seattle Municipal Code (SMC)] 4.16.070(1)(a) when they voted on the rezone after undisclosed ex-parte contacts with representatives of Rick's. Judy Nicastro was fined $200 for violating SMC 4.16.070(3)(a) because she accepted a lunch paid for by Albert D. Rosellini, . . . a close personal friend of the Colacurcio family . . . [d]uring [which he] lobbied Nicastro to grant the zoning change . . . . Wills was fined $1,500 for voting with impaired judgment, because she had toured the Rick's rezone site with Albert Rosellini . . . after she had been notified the rezone issue was quasi-judicial.

News reports . . . mentioned that Compton, Nicastro, and Wills had received a total of about $36,000 from "people connected to Frank Colacurcio, Jr." (Seattle Times July 19, 2003 article.) . . . These contributions were received by the candidates' reelection committees before the rezone was approved. After these contributions came to light, each of the three candidates refunded all of the contributions.

Clerk's Papers (CP) at 6-7. The certification for determination of probable cause explains that in November 2003 the commission learned two contributors to Nicastro's campaign had been reimbursed for their contributions, and then "[i]nvestigators began looking at the bank records of other persons who contributed to Compton, Nicastro, or Wills and who were known to have ties to the Colacurcios." CP at 9. The investigators identified 14 persons whose contributions were reimbursed by the defendants. The certification also explains some of the campaign contribution reporting requirements of the SMC and the PDA. The certification states that the defendants caused the council members' election campaign committees to file false campaign finance reports with the Seattle City Clerk, the Washington State Public Disclosure Commission, or both, pursuant to the SMC and the PDA.

¶ 6 Following arraignment, each of the defendants pled not guilty to the charges against him or her. On January 20, 2006, the defendants filed motions to dismiss on various grounds. Only the first motion is at issue. In this motion the defendants argued that the civil enforcement provisions of chapter 42.17 RCW "preempt" the general criminal penalties in RCW 40.16.030. They also argued that criminal prosecution under RCW 40.16.030 would violate their due process rights. Judge Michael J. Fox granted the motion. The State appealed. On July 28, 2006, we accepted the Court of Appeals certification of the case.

ANALYSIS

¶ 7 A trial court's pretrial dismissal of criminal charges pursuant to a Knapstad motion³ is subject to de novo review. State v. Freigang, 115 Wash.App. 496, 501, 61 P.3d 343 (2002). Similarly, because the issue whether chapter 42.17 RCW precludes prosecution under RCW 40.16.030 is an issue of statutory construction, appellate review is de novo. In re Custody of Shields, 157 Wash.2d 126, 140, ¶ 35, 136 P.3d 117 (2006). Our goal is to determine whether the legislature intended that the penalty provisions of chapter 42.17 RCW bar prosecution under RCW 40.16.030. See id.

¶ 8 The State maintains that the trial court erred in dismissing the information, arguing that the "general-specific" rule applied by the trial court is not applicable under the circumstances. Under this rule, if "concurrent general and special acts are in pari materia and cannot be harmonized, the latter will prevail, unless it appears that the legislature intended to make the general act controlling." Wark v. Wash. Nat'l Guard, 87 Wash.2d 864, 867, 557 P.2d 844 (1976); see also In re Estate of Kerr, 134 Wash.2d 328, 343, 949 P.2d 810 (1998) ("[a] more specific statute supersedes a general statute only if the two statutes pertain to the same subject matter and conflict to the extent they cannot be harmonized"). State v. Presba, 131 Wash. App. 47, 52, ¶ 9, 126 P.3d 1280 (2005) ("when a specific statute punishes the same conduct punished under a general statute, they are concurrent statutes and the State must charge only under the specific statute"); Port Townsend Sch. Dist. No. 50 v. Brouillet, 21 Wash.App. 646, 655, 587 P.2d 555 (1978) ("[i]t is a fundamental rule of statutory construction that where a general statute and a subsequent special statute relate to the same subject matter, the provisions of the special statute will prevail unless it appears that the legislature intended expressly to make the general statute controlling").

¶ 9 RCW 40.16.030, which the defendants argue is the superseded general statute, enacted in 1909, provides:

Every person who shall knowingly procure or offer any false or forged instrument to be filed, registered, or recorded in any public office, which instrument, if genuine, might be filed, registered or recorded in such office under any law of this state or of the United States, is guilty of a class C felony and⁴ shall be punished by imprisonment in a state correctional facility for not more than five years, or by a fine of not more than five thousand dollars, or by both.

¶ 10 The statutes that are said to constitute the "special" or "specific" statute are found in chapter 42.17 RCW. To place them in context, we provide a brief explanation of the relevant statutory scheme. In 1972 and 1992 the voters enacted two initiatives that comprise the greater part of the PDA. Initiative 276 (I-276) was approved by the voters in 1972 and codified as chapter 42.17 RCW. Among other purposes of I-276 are the following, codified at RCW 42.17.010:

It is hereby declared by the sovereign people to be the public policy of the state of Washington:

(1) That political campaign and lobbying contributions and expenditures be fully disclosed to the public and that secrecy is to be avoided.

. . . .

(3) That the people shall be assured that the private financial dealings of their public officials, and of candidates for those offices, present no conflict of interest between the public trust and private interest.

. . . .

(10) That the public's right to know of the financing of political campaigns and lobbying and the financial affairs of elected officials and candidates far outweighs any right that these matters remain secret and private.

Modifications have been made to chapter 42.17 RCW since I276 was implemented in 1973. Chief among these, in 1992 the voters approved Initiative 134 (I-134), the Fair Campaign Practices Act (Laws of 1993, ch. 2, §§ 1-36), which supplemented and amended the chapter....