COLUMN > From the Spindle
BY BRYAN HARNETIAUX
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Validity of Washington Criminal Statute Imposing Strict Liability for Unlawful Possession of Controlled Substance
In State v. Blake, ___ Wn.2d ___ (slip op. #96873-0, decided Feb. 25, 2021, as amended April 20, 2021), the Supreme Court addressed whether defendant Blake was properly convicted of felony possession of a controlled substance under RCW 69.50.4013, without any mens rea requirement in the statute; that is, without proof the possession was knowing or intentional.
In Blake, Shannon Blake was charged with possession of methamphetamine found in a coin pocket of the jeans she was wearing. Blake contended at trial that a friend had given her the jeans shortly before her arrest and she was unaware there were drugs in the pocket. At trial, Blake unsuccessfully raised the affirmative defense of “unwitting possession” and she was found guilty. See Blake, slip op. at 3-4. The Court of Appeals affirmed, and the Supreme Court granted review. See id. at 4-5.
Prior to Blake, on two occasions the Supreme Court upheld the validity of RCW 69.50.4013, concluding that the Legislature intended that drug possession be a strict liability crime under the statute. See State v. Cleppe, 96 Wn.2d 373 (1981); State v. Bradshaw, 152 Wn.2d 528 (2004); Blake, slip op. at 2-3. In Cleppe, the court avoided the harsh result of strict liability by creating a new affirmative defense of “unwitting possession,” allowing a defendant to avoid liability if he or she establishes unknowing possession by a preponderance of the evidence. See Blake slip op. at 19-20. The unwitting possession defense was reaffirmed in Bradshaw. See Blake, slip op. at 20. In neither Cleppe nor Bradshaw did the court reach the question of whether the strict liability nature of the crime offended due process under the federal or state constitutions. See Blake, slip op. at 6 n.4; see also U.S. Const. amend. XIV & Wash. Const. Art. I §3.
In Blake, a five-justice majority opinion authored by Justice Sheryl Gordon McCloud framed the constitutional question before the court as “whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize.” Slip op. at 14. It concluded that by imposing strict liability under the statute the Legislature had exceeded its police power under both the federal and state due process clauses. See id. at 1-2, 30-31. The majority found this constitutional issue properly reached because the court had previously interpreted the statute as imposing strict liability, and the Legislature had not thereafter amended the statute to impose a mens rea element. See id. at 24-27. The statute was declared unconstitutional because it improperly criminalizes unknowing and passive nonconduct that has an insufficient relationship with the objective of regulating possession of illegal drugs; the court-created unwitting possession defense does not serve to cure this constitutional deficiency. See id. at 19-21.
Justice Debra Stephens concurred with the majority in vacating Blake’s conviction, but disagreed with its reasoning. See Stephens J., concurring in part and dissenting in part, slip op. at 1-29. Justice Stephens concluded that it is unnecessary to reach the constitutionality of the statute as written; instead, under the doctrine of constitutional avoidance, she urged that the decisions in Cleppe and Bradshaw are not entitled to stare decisis effect because they are incorrect and harmful in failing to interpret the statute as imposing an implied mens rea proof requirement. See Blake, Stephens, J., concurring in part and dissenting in part, slip op. at 1, 29. Justice Stephens also disagreed with the majority’s analysis suggesting that legislative acquiescence prevents the court from reexamining its prior case law interpreting the statute. See id. at 19-22.
A three-justice dissent, authored by Justice Charles Johnson, would uphold Blake’s conviction under Cleppe and Bradshaw, because the Legislature properly exercised its plenary power to impose strict liability for this criminal conduct. See Johnson, J., dissenting, slip op. at 1-3.
Application of Washington Law Against Discrimination ‘Religious Employer’ Exemption, and Related Federal and State Constitutional Analysis
Woods v. Seattle’s Union Gospel Mission, ___ Wn.2d ____ (slip op. #96132-8, decided March 4, 2021), involves a sexual orientation discrimination claim by Matthew Woods against Seattle’s Union Gospel Mission (SUGM), under the Washington Law Against Discrimination (WLAD), Ch. 49.60 RCW. See Woods, slip op. at 1-4. On motion for summary judgment of dismissal, SUGM successfully argued that, as a not-for-profit religious organization, it is exempt from the definition of employer under the WLAD, pursuant to RCW 49.60.040(11). See Woods, slip op. at 2. On review in the Supreme Court, SUGM argued that dismissal should be affirmed on the grounds that religious freedom safeguards in state and federal constitutions entitle it to dismissal under the “ministerial exception,” contending the staff attorney position in question included a religious component. See id. at 2-4; see also Our Lady of Guadalupe School v. Morrissey-Berru, 207 L. Ed. 2d 870 (2020) (First Amendment analysis); Washington Const. Art. I §11 (“religious freedom” provision). In turn, Woods argued below and on review that: (1) the WLAD limitation for nonprofit religious organizations is an unconstitutional privilege or immunity under Wash. Const. Art I §12, and (2) SUGM cannot invoke the ministerial exception for the staff attorney position. See Woods, slip op. at 2-3. In three separate opinions, spanning 62 pages, the Supreme Court wrestled with issues of considerable complexity. The synopsis below is only a superficial treatment of the court’s work. (If this looks like a disclaimer, it is.)
A six-justice majority opinion authored by Justice Barbara Madsen reversed the superior court dismissal of Woods’ WLAD claim, and remanded for determination of whether the underlying facts support application of the ministerial exception under federal case law interpreting the First Amendment. See Woods, slip op. at 3, 21. In so doing, the majority rejected a facial challenge to RCW 49.60.040(11), under the Wash. Const. Art. I §12 privileges and immunities clause, reading the WLAD exemption as essentially coextensive with the ministerial exception developed under case law. See Woods, slip op. at 2, 13, 21.
A two-justice concurrence by Justice Mary Yu accepted the WLAD exemption as bounded by the ministerial exception developed under case law, and agreed with the majority’s remand to determine whether application of the exception is defensible under the particular facts. See Yu, J., concurrence, slip op. at 2.11 Justice Yu also signed the majority opinion. See Woods, majority slip op. at 22. Chief Justice Gonzales joined in Justice Yu’s concurrence, but did not join the majority opinion. See id.; Yu, J., concurrence slip op. at 9. Justice Yu engaged in an extensive analysis of the factors relevant to determining whether the ministerial exception should apply in any given case. See id. at 4-9.22 Justice Yu warns religious institutions that “today’s decision bars redefining every aspect of work life as ‘ministerial.'” Yu, J., concurrence slip op. at 3. The majority opinion endorses Justice Yu’s discussion of the ministerial exception factors as “helpful” in resolving application of the exception. Woods majority opinion slip op. at 20.
A two-justice dissent/concurrence by Justice Stephens would hold that the RCW 49.60.040(11) exemption categorically violates Wash. Const. Art. I §12, because there are no reasonable grounds for excusing religious nonprofits from the WLAD prohibition against discrimination in employment. See Stephens, J., dissenting in part and concurring in part, slip op. at 1-3. Justice Stephens criticized the majority opinion for failure to address this threshold constitutional claim. See id. at 8-20. Nonetheless, Justice Stephens concurred with the majority’s remand of the case for determination of whether SUGM is entitled to protection under the federal or state ministerial exception. See id. at 3, 20-22. The opinion also rejected other SUGM arguments asserted under federal and state religious free exercise provisions. See id. at 22-30.
Washington Supreme Court Repudiates and Vacates 1916 Opinion in State v. Towessnute
In 1915, Alec Towessnute, a Yakama tribal member, was charged in Benton County Superior Court with multiple Washington state fishing crimes occurring outside the boundaries of the Yakama Nation reservation.
Towessnute argued that the state was without jurisdiction to charge him because his right to fish in the area was unquestionably protected by a treaty with the United States government that preserved his right to fish in the usual and accustomed waters of the Yakama tribe, and to do so in the usual and accustomed manner. While the superior court agreed and dismissed the charges, the Washington Supreme Court reversed and remanded for trial. See State v. Towessnute, 89 Wash. 478 (1916).
Almost a century later, beginning in 2015, descendants of Alec Towessnute, supported by the Washington State Office of the Attorney General, sought relief in state court, urging that the 1916 opinion of the Supreme Court constituted an injustice against Towessnute and the Yakama Nation. Recently, in State v. Towessnute, ___ Wn.2d ___ (slip op. #13083-3, April 26, 2021), the Supreme Court redesignated its July 10, 2020, unanimous order in the case, vacating the 1916 opinion, as a formal opinion of the court to be published in the Washington Reports. In this new opinion, the court expressly repudiated its 1916 opinion as “an example of racial injustice.” Towessnute, slip op. at 3. The court also condemned the 1916 opinion’s skewed analysis of the nature of treaties, federalism, and dual sovereignty. See id. at 3-4. The court concluded: “We cannot forget our own history, and we cannot change it. We can, however, forge a new path forward, committing to justice as we do so.” Id. at 4.33 The Legislature authorized application for this type of extraordinary relief in RCW 9.96.060(4), which allows for vacation of sentences imposed in violation of the exercise of a “treaty Indian fishing right,” even if the person involved is deceased.
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What is a ‘Spindle?’
To this day, in the Temple of Justice hallway between the clerk’s office and the courtroom, there’s a spindle on top of a wooden lectern where on any Thursday the Supreme Court’s newly issued opinions are placed for public viewing. This is the paper version of the “slip opinion” of the court. In the “old days,” before the internet, the press and media, or members of the public, would have to check the spindle to quickly access the latest decisions from the court. Although we now all have near-instant access to the court’s decisions via cyberspace, for reasons that seem more ceremonial than practical, the spindle remains—a small relic and enduring symbol of the open administration of justice. Caveat: This column is based on slip opinions of the court, which are not necessarily the court’s final decisions and are subject to change; the official opinions of the court are those published in the Washington Reports.
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Washington Supreme Court slip opinions are available at www.courts.wa.gov/opinions/.