State v. Peterson, 98201-5

CourtUnited States State Supreme Court of Washington
Writing for the CourtGONZÁLEZ, C.J.
Decision Date18 November 2021
PartiesSTATE OF WASHINGTON, Petitioner, v. JERRY LYNN PETERSON, Respondent.
Docket Number98201-5



No. 98201-5

Supreme Court of Washington, En Banc

November 18, 2021


Jerry Lynn Peterson pleaded guilty to the sale of heroin in violation of RCW 69.50.410 of the Uniform Controlled Substances Act (UCSA). She now asks us to hold that RCW 69.50.410, if not all of the UCSA, is invalid and unconstitutional because, she contends, the statute has been impliedly repealed and, among other things, violates the privileges and immunities clause of the state constitution. Accordingly, she argues, the charges against her must be dismissed. The judicial branch has the power to declare a statute or its application unconstitutional or invalid under narrow circumstances. See, e.g., State v. Blake, 197 Wn.2d 170, 183, 481 P.3d 521 (2021); State v. Gregory, 192 Wn.2d 1, 19, 427 P.3d 621 (2018) (plurality opinion). In the absence of those circumstances, we are bound by our role in our divided government to uphold and apply the laws


properly enacted by our elected legislative bodies. Our elected state legislature has the constitutional power (within constitutional constraints) to define and redefine crimes and punishments. Finding no constitutional infirmity in the statute, we reject Peterson's arguments and remand for resentencing.


Peterson was charged with and pleaded guilty to selling heroin for profit under RCW 69.50.410(1).[1] Verbatim Report of Proceedings (VRP) (Mar. 27, 2018) at 2-7. RCW 69.50.410 is part of the UCSA. The UCSA and the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, provide different sentences for selling controlled substances. Peterson initially argued that RCW 69.50.410(3)(a)'s 2 year sentence applied, rather than the 68+ to 100 month sentence under the SRA.[2] VRP (June 13, 2018) at 13-14.

Both the trial court and the Court of Appeals agreed that the UCSA's two year sentence applied. VRP (June 13, 2018) at 15; State v. Peterson, 12 Wn.App. 2d 195, 199, 457 P.3d 480 (2020). The State petitioned for our review and argued that the SRA should provide the applicable sentence. Meanwhile, we announced our decision in State v. Cyr, where we concluded that the SRA provides the


applicable sentences for UCSA convictions. 195 Wn.2d 492, 508, 461 P.3d 360 (2020). Both parties submitted additional briefing on Cyr's applicability, and we granted review. 195 Wn.2d 1023 (2020). Peterson subsequently conceded that the SRA controls her sentence and joined amici curiae Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington, and the Washington Defenders Association (Amici Curiae or Amici) in arguing that RCW 69.50.410 is invalid and unconstitutional. We called for additional briefing on these issues.


We review the validity and constitutionality of a statute de novo. Cyr, 195 Wn.2d at 498 (quoting In re Pers. Restraint of Cruz, 157 Wn.2d 83, 87, 134 P.3d 1166 (2006)); State v. Villela, 194 Wn.2d 451, 456, 450 P.3d 170 (2019) (quoting State v. Lanciloti, 165 Wn.2d 661, 667, 201 P.3d 323 (2009)). We begin by determining the meaning of RCW 69.50.410. In determining the meaning of a statute, "our 'primary goal . . . is to ascertain and give effect to the legislature's intent and purpose.'" Cyr, 195 Wn.2d at 501-02 (alterations in original) (quoting Cruz, 157 Wn.2d at 87). "[W]e must ʽconsider[] the statute as a whole, giving effect to all that the legislature has said, and using related statutes to help identify the legislative intent embodied in the provision in question.'" Id. at 502 (quoting Cruz, 157 Wn.2d at 88) (second alteration in original) (internal quotation marks


omitted). If possible, we must "harmonize and give effect to all of the relevant statutory language." Id. (citing State v. Hirschfelder, 170 Wn.2d 536, 543, 242 P.3d 876 (2010)). As the party challenging the statute, Peterson bears the burden of establishing that RCW 69.50.410 is unconstitutional or invalid. See Villela, 194 Wn.2d at 456 (citing Lanciloti, 165 Wn.2d at 667).

Peterson argues that RCW 69.50.410 has been repealed by implication, is invalid under the doctrine of desuetude, and is unconstitutional under article I, section 12 of the Washington Constitution. She also contends that RCW 69.50.410 is not severable from the remainder of the UCSA, rendering the entire act invalid. We turn now to these issues.

I. Repeal by Implication

Peterson and Amici argue that RCW 69.50.410 has been repealed by implication. Repeal by implication is strongly disfavored. Amalg. Transit Union Legislative Council v. State, 145 Wn.2d 544, 552, 40 P.3d 656 (2002) (citing Tollycraft Yachts Corp. v McCoy, 122 Wn.2d 426, 439, 858 P.2d 503 (1993)). Such a repeal will be found only where (1) a "later act covers the entire field of the earlier one, is complete in itself, and is intended to supersede prior legislation" or (2) "the two acts cannot be reconciled and both given effect by a fair and reasonable construction." State v. Conte, 159 Wn.2d 797, 815, 154 P.3d 194 (2007) (citing Amalg., 145 Wn.2d at 552). Neither situation exists here.


Peterson and Amici claim that RCW 69.50.410 and the sentencing provisions of the SRA cannot be reconciled and both given effect by a fair and reasonable construction. They argue that RCW 69.50.410 cannot be given effect, in part, because its rehabilitative intent has never been met. (Second) Suppl. Br. of Peterson at 7; Br. of Amici Curiae in Supp. of Pet'r at 17-18. But based on the plain language and legislative history, when the legislature passed RCW 69.50.410 it clearly intended to punish.

The UCSA was passed in 1971 during a nationwide effort to reform drug sentencing laws. Laws of 1971, 1st Ex. Sess., ch. 308; Report of the Task Force on the Use of Criminal Sanctions to the King County Bar Association Board of Trustees, 30 Fordham Urban L.J. 499, 506 (2003). Almost all states passed some form of the UCSA, which paralleled the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236, also known as the "Controlled Substances Act." Report of the Task Force, supra, at 506; see also Seeley v. State, 132 Wn.2d 776, 782, 940 P.2d 604 (1997). Both state and federal laws were "comprehensive statutory mechanism[s] to control the manufacture, distribution, and use of controlled substances" with "[p]enalties . . . imposed for violations." Seeley, 132 Wn.2d at 782. Our 1971 UCSA did not include addiction treatment or rehabilitation for drug users. See Laws of 1971, 1st Ex. Sess., ch. 308.


RCW 69.50.410 was passed two years later. Laws of 1973, 2d Ex. Sess., ch. 2, § 2. The statute states that

(1) Except as authorized by this chapter it is a class C felony for any person to sell for profit any controlled substance or counterfeit substance classified in Schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana. . . . .
(3)(a) Any person convicted of a violation of subsection (1) of this section by selling heroin shall receive a mandatory sentence of two years in a correctional facility of the department of social and health services and no judge of any court shall suspend or defer the sentence imposed for such violation.

RCW 69.50.410.[3] When enacted, the statute was entitled "Controlled Substances - Mandatory Sentences," and the legislature's intent was, at best, to provide some option for rehabilitation while imposing harsh mandatory sentences. It was based on House Bill 323, which provided "mandatory sentencing for certain violations involving controlled substances." House Journal, 43d Leg., 1st & 2d Ex. Sess., at 1742 (Wash. 1973). Legislative discussions about the bill clearly demonstrate the intent to put a "very highly mobile group" of "very hard drug sellers" who could be "found moving constantly between Vancouver, British Columbia, and down as far as San Diego" "out of business and behind bars." Id. at 1756, 1744. Even when vetoing the bill for technical reasons, Governor Daniel Evans explained that "[t]his bill would have created mandatory sentences for persons convicted of


certain types of crimes involving sale of drugs. I am in full agreement that we need stiff penalties for certain offenders, especially where the offender has earned enormous sums from the sale of drugs." Laws of 1973, 2d Ex. Sess., ch. 2, § 2. The legislature promptly overturned the governor's veto. Id.

Simply put, RCW 69.50.410(3)(a) as well as (2)(b) and (3)(b) impose mandatory minimum sentences for people selling heroin and other Schedule I drugs. This is particularly striking because, at the time the statute was passed, sentencing in our state was indeterminate. See ch. 9.95 RCW. Under this indeterminate sentencing system, trial courts sentenced offenders to the maximum amount of time that could be served and, usually, the former Board of Prison Terms and Paroles (Board) set the minimum term. RCW 9.95.010, .040. At that time, few statutes imposed mandatory minimums. See, e.g., Richard C. J. Kitto, Jr., Comment, A Perspective on Adult Corrections in Washington, 51 Wash.L.Rev. 495, 499 (1976). RCW 69.50.410 was one such statute. Id. at 499 n.27; Cyr, 195 Wn.2d at 509 (RCW 69.50.410(3)(b) "explicitly sets a mandatory minimum term").[4]

The sentences imposed under RCW 69.50.410 were to be served in a "correctional facility of the department of social and health services." Former


RCW 69.50.410(2), (3) (1973). Out of historical context, this might seem like evidence the legislature had a rehabilitative intent, but these facilities were simply prisons. But the Department of Corrections (DOC) was not created until 1981; the Department of Social and Health Services (DSHS) ran prison facilities prior to that time. Laws of 1981, ch. 136, § 3. The law that created the DOC transferred authority from DSHS to DOC. Id. § 4; see also State v. McGinley, 18...

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