(dissenting) — I would affirm the Kitsap *744County District Court because I agree with the experienced judge of that court, the Honorable James M. Riehl, that our constitution does not permit the Legislature to delegate to the judiciary the task of defining, in whole or in part, what conduct constitutes criminal activity. Such a delegation is precisely what took place here because the “local judicial authority” was assigned the task of designating the areas in buildings used in connection with court proceedings in which weapons are prohibited. See RCW 9.41.300(l)(b). The problematic aspects of the statute do not, however, end with the improper delegation because even if such a delegation is permissible, the statute does not specifically define who or what constitutes the local judicial authority. The statute is also utterly lacking in procedural safeguards that must exist in order for any delegation of legislative authority to be constitutional. For these reasons, I respectfully dissent from the majority opinion.
I
The majority essentially determines that the Legislature may delegate to the judiciary the task of defining criminal conduct. This is an incorrect conclusion because we have consistently held that the Legislature, not the judiciaiy, is the branch of government that is responsible for defining the elements of a crime. See, e.g., McInturf v. Horton, 85 Wn.2d 704, 706, 538 P.2d 499 (1975). In McInturff, we stated that “[t]he power to decide what acts shall be criminal, to define crimes, and to provide what the penalty shall be is legislative.” McInturff, 85 Wn.2d at 706; see also State v. Ritchie, 126 Wn.2d 388, 394, 894 P.2d 1308 (1995); State v. Ermert, 94 Wn.2d 839, 847, 621 P.2d 121 (1980); State v. Carothers, 9 Wn. App. 691, 696, 514 P.2d 170 (1973) (“The specification of the ways or modes by which a given crime may be committed is a legislative function.”), aff’d, 84 Wn.2d 256, 525 P.2d 731 (1974). Although the majority pays lip service to the Legislature’s prerogative to specify the elements of a crime, it appears undisturbed by the fact *745that, in the statute before us, the judiciary has been given the responsibility of deciding where, in court buildings, it is unlawful for citizens to carry weapons. See RCW 9.41-.300(l)(b).105
The delegation of legislative authority that took place here flies in the face of the notion that the judiciary should not be in the business of creating crimes or defining criminal conduct. See State v. Wissing, 66 Wn. App. 745, 755, 833 P.2d 424 (noting that there exists no common law crime in Washington), review denied, 120 Wn.2d 1017, 844 P.2d 436 (1992); State v. Danforth, 56 Wn. App. 133, 137, 782 P.2d 1091 (1989), overruled on other grounds by State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993). In my view, we should hold fast to the idea that under the doctrine of separation of powers the judicial branch may not be assigned tasks that are the functions of other branches of government. See Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994). Because the task of deciding where it is unlawful to carry a weapon is a task that appropriately resides with the legislative branch, the delegation here is improper.
The majority incorrectly analogizes the present statute to other statutes relating to “bail jumping,” “protection orders,” and “criminal contempt.” See Majority op. at 736-37. I readily agree with the majority’s assertion that under the bail jumping statute106 “[t]he court, and not the Legislature, determines the dates for the person to appear in court.” Majority op. at 737. I also agree with the court that the statutes governing the issuance of protection orders107 require the judiciary to order “whom the restrained person may or may not contact.” Majority op. at 737. It is *746also correct that under criminal contempt statutes108 “[t]he judiciary provides specifics of the offense by declaring the acts of disobedience.” Majority op. at 737. What the majority overlooks, however, is that the court provides what the majority refers to as the “specifics” during the course of an adjudicative proceeding where the parties affected by the court’s ruling are before the court. In other words, while the court is establishing specifics, it is acting in its official capacity adjudicating the rights and liabilities of the parties. Here, on the other hand, when the local judicial authority makes the decision imposed upon it by RCW 9.41.300, whether by resolution, rule, or court order, it is not adjudicating. There is no judicial proceeding in progress and there are no parties appearing before the local judicial authority. What takes place, instead, is that the local judicial authority is acting as a legislative body or administrative agency in adopting a rule that holds sway outside of the confines of its courtrooms. In short, the local judicial authority supplies an element of an offense that serves to proscribe certain conduct on the part of the entire populace. Such an extrajudicial proceeding stands in stark contrast to the judicial acts carried out pursuant to a court’s statutory and inherent powers to set bail, punish contempt, and enter restraining orders.
I also disagree with the majority that the delegation embodied in RCW 9.41.300 is justified as merely an “acknowledgment” of the judicial branch’s inherent power. See Majority op. at 738-39. At the same time, I readily acknowledge that judges must and do have the inherent power to ban weapons in courtrooms, jury rooms, and other facilities used in connection with court proceedings and to expel persons who violate such proscriptions. See State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981). I also recognize that judges may even enforce the ban by requiring persons entering court facilities to undergo security checks in order to make certain the court’s order is followed. Indeed, a trial court has the statutory and inherent power *747to impose criminal contempt sanctions for violations of its orders, provided it extends to the contemnor the due process rights that are afforded to other criminal defendants. See In re Personal Restraint of King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988) (citing State v. Boatman, 104 Wn.2d 44, 46-47, 700 P.2d 1152 (1985)). Judges may not, however, use their inherent power to make conduct that is otherwise lawful, unlawful by a court order of general application.
The judicial branch is limited to exercising powers that are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction. State v. Gilkinson, 57 Wn. App. 861, 865, 790 P.2d 1247 (1990) (citing In re Guardianship of Hayes, 93 Wn.2d 228, 243, 608 P.2d 635 (1980) (Rosellini, J., dissenting)). These inherent powers are by no means absolute. “Such powers are strictly procedural in nature and do not confer any substantive authority nor increase the jurisdiction of the court.” Gilkinson, 57 Wn. App. at 865 (emphasis added) (citing Ladenburg v. Campbell, 56 Wn. App. 701, 784 P.2d 1306 (1990)). In the case before us, the local judicial authority, at the behest of the Legislature, gave life to a criminal statute by supplying an element of the crime — designating areas in buildings housing court facilities where it is unlawful to carry weapons. The designation by the Kitsap County Superior Court judges of the entire building, which houses their court, had the effect of imposing criminal liability on Wadsworth, a person who was found carrying a small knife at the entrance of the courthouse. Making such an act illegal is power the judiciary does not possess.
II
Even if it were constitutionally acceptable for the Legislature to delegate the task of defining criminal conduct to the judiciary, the majority simply assumes, without any analysis, that the delegation procedure embodied in RCW 9.41.300(l)(b) poses no constitutional problems. This assumption is in error because the statute is not clear as to who or what constitutes the local judicial *748authority and the statute also fails to provide adequate procedural safeguards. The majority’s decision fails to take into account that
delegation of legislative power is justified and constitutional . . . [only] when it can be shown (1) that the legislature has provided standards or guidelines which define in general terms what is to be done and the instrumentality or administrative body which is to accomplish it; and (2) that procedural safeguards exist to control arbitrary administrative action and any administrative abuse of discretionary power.
Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 159, 500 P.2d 540 (1972) (emphasis omitted).
The delegation of legislative power here is remarkably unfettered. The statute merely instructs the “local judicial authority” to designate areas where it is unlawful to carry weapons. RCW 9.41.300(1)(b). Unfortunately, the statute provides no direction as to who or what constitutes the local judicial authority. One can reasonably ask whether the authority is vested in all of the judges of the superior court or in its presiding judge. If the superior court shares a building with the district court, which is not at all uncommon in this state, is the authority vested in an ad hoc panel of judges from both courts? If so, is the decision to be made by a majority of the judges or must there be unanimity among all the members of the local judicial authority? It is plain, in short, that the statute is significantly devoid of details as to who or what constitutes the “local judicial authority” and how it is to make the statutorily mandated decision. The constitution requires more. Barry, 81 Wn.2d at 159.
Another troublesome aspect of RCW 9.41.300 is the complete absence of procedural safeguards. There is, in other words, no framework under which the “local judicial authority” must act. Although courts are not administrative agencies, I would observe that such agencies are typically bound by the Administrative Procedure Act, RCW 34.05, that ensures that interested parties will be given notice and an opportunity to comment on a proposed rule before it is adopted. Barry, 81 Wn.2d at 164. Adequate *749procedural safeguards are needed to control arbitrary government action. Ermert, 94 Wn.2d at 847. Here, the Legislature required the “local judicial authority” to put flesh on the bare bones of RCW 9.41.300 by designating the areas in court buildings where it is unlawful to carry weapons, and yet it was not required to give any notification to the public prior to making the designation. This is particularly problematic because the statute provides that “[t]he restricted areas do not include common areas of ingress and egress to the building that is used in connection with court proceedings, when it is possible to protect court areas without restricting ingress and egress to the building.” RCW 9.41.300(l)(b) (emphasis added). One wonders how the local judicial authority can fairly determine if an entire building should be a restricted area without first providing the public an opportunity to comment on the appropriateness of such a restriction.
In the final analysis, the local judicial authority has been given the ultimate discretion to decide where weapons will be prohibited in buildings where court business is transacted. Even assuming the delegation of authority was proper in the first place, it is constitutionally unacceptable for the local judicial authority to exercise its discretion without supplying any opportunity for public comment. See Biermann v. City of Spokane, 90 Wn. App. 816, 822, 960 P.2d 434 (1998) (noting that the City’s decision based on unpublished informal policy does not fulfill requirement of providing adequate procedural safeguards), review denied, 137 Wn.2d 1004, 972 P.2d 466 (1999). Although I quickly add that there is nothing in the record to suggest that any judicial personages have acted in an arbitrary manner, whether or not a recipient of legislative authority has acted with the utmost of judiciousness is not relevant to the inquiry of whether adequate procedural safeguards exist at the outset.
CONCLUSION
I might have no quarrel with the statute in question, *750RCW 9.41.300, if the Legislature had limited the sweep of the statute to making it unlawful to carry weapons in the areas it designated, i.e., “courtrooms, jury rooms, judge’s chambers, offices and areas used to conduct court business, waiting areas, and corridors adjacent to areas used in connection with court proceedings.”109 RCW 9.41.300(l)(b). I would also not be troubled by an order of the superior court judges banning weapons in courtrooms and other areas where court business is transacted. The vice of the statute under review here is that the distinction between the role of the Legislature and that of the judiciary is blurred because the statute delegates to the local judicial authority the task of designating areas, not otherwise specified in the statute, where weapons are prohibited. It is this delegation of authority that ultimately resulted in Wadsworth’s arrest for carrying his Swiss Army knife in an area that was not in the statute. Because the superior court judges made it unlawful to carry weapons anywhere in the building in which they are located, they were ultimately responsible for supplying an element of the crime with which Wadsworth was charged. This act exceeded their constitutional authority.
I, therefore, dissent.
Sanders, J., concurs with Alexander, J.
The statute states in pertinent part that “[t]he local judicial authority shall designate and clearly mark, those areas where weapons are prohibited, and shall post notices at each entrance to the building of the prohibition against weapons in the restricted areas.” RCW 9.41.300(l)(b) (emphasis added).
RCW 9A.76.170
See, e.g., RCW 9A.46.080; RCW 10.99.040; RCW 10.99.050; RCW 26.50.060; RCW 26.50.110.
RCW 7.21.010(1); RCW 7.21.040(2)(a), (5).
One could reasonably argue, though, that the Legislature’s designation of specific areas where it is unlawful to carry weapons, i.e., courtrooms, jury rooms, judge’s chambers and the like, does not make the proscription in the statute complete because the statute still requires the local judicial authority to implement the statute by designating and clearly marking areas where weapons are prohibited, including those specifically designated. See RCW 9.41.300(l)(b). Because Wadsworth did not enter an area specifically listed in the statute, we need not address this issue.