State v. Thomas

• Decision Date: 21 December 2000
• Docket Number: No. 24962-6-II.,24962-6-II.
• Citation: 14 P.3d 854,103 Wash.App. 800
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kiley THOMAS, Appellant.

14 P.3d 854

103 Wash.App. 800

STATE of Washington, Respondent, v.Kiley THOMAS, Appellant.

No. 24962-6-II.

Court of Appeals of Washington, Division 2.

December 21, 2000.

R. A. Lewis, Knapp, O'Dell & Lewis(Court Appointed), Camas, for Appellant.

Mark Ellis Beam, Clark County Pros.Atty. Office, Vancouver, for Respondent.

BRIDGEWATER, J.

Kiley Thomas appeals his convictions of leading organized crime and three counts of conspiracy to deliver marijuana.First, we hold that the Criminal Profiteering Act, chapter 9A.82 RCW, was repealed in part by RCW 9A.82.903 in July of 1995.RCW 9A.82.903, included in the 1985 version of the Criminal Profiteering Act, provided for the automatic repeal of the entire Criminal Profiteering Act in 1995.Before July 1995, the legislature attempted to eliminate this anticipated repeal of chapter 9A.82 RCW by including a section repealing RCW 9A.82.903, the termination provision,¹ in a bill entitled "AN ACT Relating to insurance fraud"(the Act).

This attempt by the legislature to continue the life of the Criminal Profiteering Act by repealing that single provision, RCW 9A.82.903, was unconstitutional because it violated art. II, § 19 of the Washington Constitution by: (1) not expressing the subject of the repealer in the title, and (2) embracing more than one subject.Therefore, Thomas's conviction for leading organized crime, a violation of RCW 9A.82.060, must be reversed and dismissed with prejudice.Second, we hold that the evidence supports Thomas's convictions for conspiracy and that proper jury instructions were given.Third, we hold that, upon resentencing, the school bus stop enhancement does not apply to Thomas's conspiracy convictions.Therefore, we reverse in part, affirm in part, and remand for resentencing.

In 1998, the State charged Thomas with leading organized crime (Count I) by intentionally organizing, managing, directing, supervising, or financing three or more persons with intent to engage in criminal profiteering activity.²The information defined "criminal profiteering activity" as "the delivery and/or possession with intent to deliver a controlled substance, to wit: Marijuana[.]"Clerk's Papersat 5.The State also charged Thomas with three counts of conspiracy to deliver a controlled substance and/or possess with intent to deliver a controlled substance for conspiring with three individuals, Perry, Buckeye, and Ross.³

The jury convicted Thomas on all four counts and made a special finding that the offenses occurred within the 1,000 foot perimeter of a school bus route stop, which allows for a sentencing enhancement under RCW 69.50.435(a).The trial court sentenced Thomas within the standard range, with no enhancements.The trial court merged the three counts of conspiracy to deliver marijuana into the conviction on Count I, leading organized crime.

Because the facts underlying Thomas's convictions are not pertinent to the published portion of our opinion concerning his conviction on Count I and the partial repeal of the Criminal Profiteering Act, we discuss the facts in the unpublished portion of our opinion concerning Thomas's remaining conspiracy convictions.We first turn to Thomas's assignment of error regarding his conviction on Count I.

Single Subject Requirement

Thomas asserts that he cannot be convicted of criminal profiteering because the termination provision, included in the 1985 version of the Criminal Profiteering Act and codified at RCW 9A.82.903, repealed the entire Criminal Profiteering Act in 1995.

In 1984, the legislature enacted chapter 9A.82 RCW as the "Washington State Racketeering Act" and modeled it after the federal RICOstatute⁴ to combat organized crime.⁵This legislation was scheduled to take effect July 1, 1985.⁶But before it took effect,⁷ the 1985legislature renamed it the "Criminal Profiteering Act."⁸The 1985 version of chapter 9A.82 RCW contained significant changes to the original act,⁹ including a ten-year termination provision to the entire Criminal Profiteering Acteffective July 1, 1995.¹⁰

The Criminal Profiteering Act defined the following crime:

(1) A person commits the offense of leading organized crime by: (a) intentionally organizing, managing, directing, supervising, or financing any three or more persons with the intent to engage in a pattern of criminal profiteering activity[.]¹¹

The termination provision provided in part:

The following acts or parts of acts as they now exist or are hereafter amended are each repealed effective July 1, 1995.[¹²]

In 1995, the legislature attempted to repeal RCW 9A.82.903 as part of an act entitled "AN ACT Relating to insurance fraud."Thomas argues that the repeal of RCW 9A.82.903 was unconstitutional because the legislature violated the Washington State Constitution, art. II, § 19 by including its repeal in this Act.

The title and table of contents to the Act read as follows:

AN ACT Relating to insurance fraud; amendingRCW 48.01.030, 48.18.460, 48.30.210, 48.30.220, 48.50.010, 48.50.020, 48.50.030, 48.50.040, 48.50.075, 48.80.020, 2.48.180, 9.12.010, 9A.72.010, 9A.72.030, 9A.76.020, 9A.82.010, and 18.130.190; reenacting and amending RCW 9.94A.320; adding a new section to chapter 42.17 RCW; adding a new section to chapter 9A.68 RCW; adding a new section to chapter 9A.76 RCW; adding a new chapter to Title 48 RCW; creating a new section; repealing RCW 9.91.090, 9A.82.903, 48.50.060, 48.50.080, and 49.44.070; prescribing penalties; providing an effective date; and declaring an emergency.[¹³]

The emphasized portion reflects the only reference to the termination provision in the Act's introductory paragraph.And the only reference to the termination provision in the body of the Act was contained in § 37.This section provided in relevant part:

New Section.Sec. 37.The following acts or parts of acts are each repealed:

. . . .

(2)RCW 9A.82.903 and 1985 c455 s 22.[¹⁴]

Article II, § 19 of the Washington Constitution provides: "No bill shall embrace more than one subject, and that shall be expressed in the title."Const. art. II, § 19.This section"serves to protect serious constitutional interests."Patrice v. Murphy,136 Wash.2d 845, 851, 966 P.2d 1271(1998).The purposes of this constitutional mandate are three-fold:

(1) to protect and enlighten the members of the legislature against provisions in bills of which the titles give no intimation;

(2) to apprise the people, through such publication of legislative proceedings as is usually made, concerning the subjects of legislation that are being considered; and

(3) to prevent hodge-podge or log-rolling legislation.

Patrice,136 Wash.2d at 852, 966 P.2d 1271(citingState ex rel. Wash. Toll Bridge Auth. v. Yelle,32 Wash.2d 13, 24, 200 P.2d 467(1948)).See alsoState v. Broadaway,133 Wash.2d 118, 124, 942 P.2d 363(1997)(citingState v. Thorne,129 Wash.2d 736, 757, 921 P.2d 514(1996);Washington Fed'n of State Employees v. State,127 Wash.2d 544, 552, 901 P.2d 1028(1995)).We liberally construe art. II, § 19 so as to sustain the validity of the legislative enactment.Washington Fed'n of State Employees,127 Wash.2d at 555, 901 P.2d 1028.

Our Supreme Court has interpreted art. II, § 19 as two separate prohibitions: "(1) No bill shall embrace more than one subject; and (2) the subject of every bill shall be expressed in the title."Patrice,136 Wash.2d at 852, 966 P.2d 1271;State ex rel. Toll Bridge Auth.,32 Wash.2d at 23, 200 P.2d 467.Violation of either the subject or the title requirement alone is sufficient to render the relevant bill provisions unconstitutional.Patrice,136 Wash.2d at 852, 966 P.2d 1271.We first address whether the subject of the bill is expressed in the Act's title.

A. Subject-in-Title Rule

In general, a legislative title is constitutionally sufficient if it "gives such notice as should reasonably lead to an inquiry into the body of the act itself, or indicates, to an inquiring mind, the scope and purpose of the law."State ex rel. Toll Bridge Auth.,32 Wash.2d at 26, 200 P.2d 467;Patrice,136 Wash.2d at 853, 966 P.2d 1271.A legislative title can be either general or restrictive.Thorne,129 Wash.2d at 758, 921 P.2d 514;State ex rel. Toll Bridge Auth.,32 Wash.2d at 26, 200 P.2d 467.A general title is broad rather than narrow.Gruen v. State Tax. Comm'n,35 Wash.2d 1, 22, 211 P.2d 651(1949), overruled on other grounds byState ex rel. Wash. State Fin. Comm. v. Martin,62 Wash.2d 645, 384 P.2d 833(1963).Where the title of the act is general and comprehensive, we liberally construe its subject to determine whether it embraces the subject of all the provisions expressed within the act.State ex rel. Toll Bridge Auth.,32 Wash.2d at 26, 200 P.2d 467.¹⁵

A restrictive title, on the other hand, "is one where a particular part or branch of a subject is carved out and selected as the subject of the legislation."Broadaway,133 Wash.2d at 127, 942 P.2d 363(citingGruen,35 Wash.2d at 23, 211 P.2d 651).A restrictive title is "narrow," as opposed to broad, and it is of specific rather than generic import.Broadaway,133 Wash.2d at 127, 942 P.2d 363.¹⁶A restrictive title will not be liberally regarded and provisions not within its subject are not given force.State ex rel. Toll Bridge Auth.,32 Wash.2d at 26, 200 P.2d 467.

The State argues that the reference to the termination provision, RCW 9A.82.903, in the Act's introductory paragraph meets the requirements of art. II, § 19.The State misreads the "title" of the Act."[A] mere reference to a section in the title of an act does not state a subject."Fray v. Spokane County,134 Wash.2d 637, 654-55, 952 P.2d 601(1998)(quotation omitted).The title relevant to the art. II, § 19 inquiry is the word, phrase, or phrases following "AN ACT Relating to ..." and preceding the first semicolon.¹⁷See, e.g., Fray,134 Wash.2d at 655,952 P.2d 601;Patrice,136 Wash.2d at 853,966 P.2d 1271.¹⁸In other words, for purposes of our inquiry, ...