State v. Klinker

• Decision Date: 12 June 1975
• Docket Number: No. 43172,43172
• Citation: 85 Wn.2d 509,537 P.2d 268
• Parties: The STATE of Washington, Appellant, v. Jeffery Lawrence KLINKER, Respondent.
• Court: Washington Supreme Court

Page 509

85 Wn.2d 509

537 P.2d 268

The STATE of Washington, Appellant, v. Jeffery Lawrence KLINKER, Respondent.

No. 43172.

Supreme Court of Washington, En Banc.

June 12, 1975.

Rehearing Denied Sept. 9, 1975.

Christopher T. Bayley, King County Pros. Atty., Gerald A. Smith, Deputy Pros. Atty., Seattle, for appellant.

Fishel & Seligmann, Eugene F. Seligmann, Seattle, for respondent.

UTTER, Associate Justice.

This is an appeal by the state from an order of the King County Superior Court dismissing a filiation suit it brought pursuant to RCW 26.24 against Jeffery Lawrence Klinker. The dismissal was based on the trial court's finding that RCW 26.24.010 and 26.24.020, under which respondent Klinker was arrested to commence this action, are unconstitutional under the due process principles of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). We affirm the trial court's judgment, primarily on the basis of our determination that the arrest procedure established by the challenged statutes violates the Fourth Amendment requirements that arrests be reasonable and that arrest warrants issue only after an independent finding of probable cause by a detached judicial officer.

On June 26, 1973, a verified complaint was filed in Seattle District Court, alleging that respondent Klinker was the father of an illegitimate child born on July 2, 1971. On the same day a warrant for Klinker's arrest was issued pursuant to RCW 26.24.010. ¹ Three days later he was arrested and booked into King County Jail, and then released on his own recognizance upon his promise to appear on July 10, 1973, for the hearing required by RCW 26.24.020. ² He did appear and the hearing was held and the case bound over to the superior court for trial. There he successfully moved to dismiss the complaint before trial on the merits on the grounds that the procedures by which he had been brought into court were unconstitutional. This appeal followed.

'Upon the appearance of the accused, it shall be the duty of such justice to examine the woman, if then present, under oath, in the presence of the man alleged to be the father of the child, touching the charge against him, or, if the woman be not then present, to fix a date for such examination not more than ten days thereafter and to require the accused to give a bond with sufficient surety conditioned that he will appear to answer such charge upon such date, or upon any other date to which such examination may be continued; and in default of the giving of such bond such justice shall cause the accused to be committed to the county jail. The accused shall have the right to controvert such charge and evidence may be heard as in the case of trial of civil actions before such justice. If such justice shall be of the opinion that sufficient cause appears, it shall be his duty to bind the person so accused in bond with sufficient surety payable to the state of Washington and conditioned that he will appear in the superior court of such county at such time or times as the judge thereof may fix or order, to answer such complaint, and abide the judgment and orders of the court; or failing therein, that he will pay such sums of money and to such person as may be adjudged by such court; and the justice shall transmit such bond, together with the transcript of his proceedings, the complaint and the other papers in the case, without delay to the clerk of the superior court of such county. And if the accused shall fail to give a bond as required, such justice shall commit him to jail until discharged by law. Such bond, or any bond given by said accused on any continuance or arrest, may be put in suit by any person in whose favor the court may adjudge any sum of money in such proceeding.'

I

The trial court's judgment, and the parties' arguments on appeal, focused on the constitutionality of the arrest provisions of the filiation statutes in light of a line of United States Supreme Court decisions begining with Sniadach v. Family Finance Corp., supra. These cases deal with the requirements of the due process clauses of the Fifth and Fourteenth Amendments with regard to summary seizures of property by creditors through various judicial devices which do not afford the owner of the property an opportunity to be heard before being so deprived.

In Sniadach, a Wisconsin prejudgment garnishment statute that permitted wages to be attached by a note creditor without a prior judicial determination of liability was struck down as permitting deprivations of property without due process. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the court reaffirmed and extended Sniadach in invalidating several statutes which allowed Ex parte replevin orders to issues without notice or a prior hearing. Fuentes held that notice and a hearing were constitutionally prerequisite to state-authorized seizures of property rights of any sort, absent a judicial determination that extraordinary circumstances exist justifying temporary seizure without such a hearing. Two years later, however, in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the court upheld a Louisiana sequestration procedure which allowed summary seizure of property after an Ex parte showing of the validity of the claim but which guaranteed an opportunity for a hearing promptly after the seizure to contest it. Although the majority opinion emphasized that it upheld the process only under the particular circumstances presented by the case before it, ³ the concurring and dissenting opinions argued that the decision amounted to an overruling of Fuentes' general prior hearing requirement. See Mitchell v. W. T Grant Co., supra, 416 U.S. at 623, 94 S.Ct. 1895 (Powell, J., concurring), 416 U.S. at 634, 94 S.Ct. 1895 (Stewart, J., dissenting). But then in North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the court again struck down a summary garnishment procedure which afforded neither a prior contested hearing nor an independent Ex parte determination by a judge of a need for immediate attachment. Justice Stewart announced that Fuentes was not overruled after all, while Justice Powell, concurring, maintained that it was and attempted to distinguish Mitchell. North Georgia Finishing, Inc. v. Di-Chem, Inc., supra at 95 S.Ct. 723.

The upshot of these shifting currents in the Supreme Court is apparently that due process requires a hearing before property is seized, and that that hearing must either include notice and the opportunity to appear being given the person subjected to the seizure or must involve an Ex parte finding by a judicial officer of a right to and a special need for summary seizure or attachment subject to prompt later contest. Under such a rule, the statutes before us, which neither provide for a prior contested hearing nor allow independent judicial determination of the existence of cause to arrest, cannot stand.

We do not rest our decision in this case solely on this ground, however, for two reasons. First, the repeated shifts in the court's position from case to case in this area, with the Justices themselves unable to agree as to which of their decisions are still in force and which have been overruled, make any pronouncement of the law tentative at best. Second, the application of the due process principles of these cases to the one before us is considerably complicated by the numerous differences between the types of statutes and cases involved. All the Supreme Court's cases, from Sniadach to North Georgia Finishing, involved seizures of property, whereas this case concerns the arrest of a person; those cases reviewed actions by state agents or courts on behalf of private plaintiffs, while this one involves litigation in which the state is a party and its interests are independently significant; the primary question in those cases was what can or cannot be done before a party defendant first appears in court, while the issue before us here is the propriety of the means by which he is brought into court. In such a readily distinguishable context, application of the 'rule' of the Supreme Court's cases approaches pure speculation.

Thus, although the decision below and the argument here was limited to the due process issue, we choose to rely primarily on the more solid and certain grounds for upholding the decision of the trial court ⁴ which can be found in the Fourth Amendment's restrictions on unreasonable searches and seizures.

II

The statutes challenged here, and the actions taken under them to which respondent objects, fall directly within the scope of the constitutional prohibition of unreasonable searches and seizures. Respondent Klinker was arrested: his person was seized within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 10, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that his arrest was part of a civil, rather than criminal, proceeding (State v. Mottet, 73 Wash.2d 114, 437 P.2d 187 (1968)) does not make the amendment any less applicable. The purpose for which a person is arrested does not alter the fact that a seizure subject to constitutional scrutiny has taken place. Cupp v. Murphy, 412 U.S. 291, 294, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Davis v. Mississippi, 394 U.S. 721, 726--27, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, supra 392 U.S. at 19, 88 S.Ct. 1868. '(T)he essential element is the physical restraint placed upon the person, not the purpose behind the restraint.' Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971). Although the central province of Fourth Amendment jurisprudence is the criminal law, the constitutional language itself draws no distinction between governmental intrusions on liberty or property during criminal investigations and those in other circumstances. Rather, it states simply that

The right of the people to be secure in their persons,...