The government has determined our citizens are not intelligent enough to decide for themselves whether to wear a seat belt, yet they apparently have enough intelligence to locate and interpret an elusive federal administrative rule. Our case law establishes that the latter task cannot be properly strapped to the laps of our fellow citizens and I must dissent. *Page 523
We start with the text of the Washington statute, RCW46.61.688. Subsection (1) of the statute provides a list of definitions not at issue. However subsection (2) provides:
This section only applies to motor vehicles that meet the manual seat belt safety standards as set forth in federal motor vehicle safety standard 208 and to neighborhood electric vehicles. This section does not apply to a vehicle occupant for whom no safety belt is available when all designated seating positions as required by federal motor vehicle safety standard 208 are occupied.
RCW 46.61.688(2) (emphasis added).
In one sense (and only one sense), the meaning of this subsection is clear. The entire section, including subsection (3) discussed below, applies only if the vehicle in which the occupant is riding "meets" certain standards contained in the federal regulation cited.4 The converse is true: if a vehicle in which one is riding does not "meet" the federal standard, the entire section does not apply.5 However, from the text one has no idea what the federal standard may be.
Only if the section applies must one go on to subsection (3), which actually requires one to wear a seat belt. Riding in a vehicle that "meets" the federal standard is therefore a *Page 524 condition precedent to the driver or passenger in the vehicle having any legal duty to wear a seat belt.
Unfortunately the majority does not textually analyze the statute and misstates the legal standards to be applied to vagueness challenges such as Eckblad's. Moreover it fails to analyze prior Washington State case law that is directly on point.
The correct standard for vagueness challenges such as this is:
State v. Maxwell, 74 Wn. App. 688, 691, 878 P.2d 1220 (1994).A statute is unconstitutional if it fails to provide fair notice; if the standards to which a citizen must conform are so inaccessible that an average person could not be expected to discover them by reasonable research efforts, then the statute does not provide the requisite notice.
The majority neither cites this standard nor analyzesMaxwell. The reasoning in Maxwell is squarely on point and categorically inconsistent with the views of today's majority.Maxwell, in turn, rested its holding on State v. Dougall,89 Wn.2d 118, 570 P.2d 135 (1977). There this court held the due process clause of the fourteenth amendment to the United States Constitution and article I, section 3 of the Washington Constitution require that regulatory standards referenced in penal statutes be susceptible to location and understanding by a person of common intelligence. Dougall, 89 Wn.2d at 121-22.
In Maxwell the Court of Appeals faced a situation identical to the one here. A federal motor vehicle safety standard was incorporated into Washington law by mere reference. While that case dealt with motorcycle helmets rather than seat belts, the text of the administrative rule at issue in that case is illustrative:
Maxwell, 74 Wn. App. at 691 (quoting former WAC 204-10-040). *Page 525Federal Motor Vehicle Safety Standard 218 is hereby adopted by reference as the standard for motorcycle helmets.
Compare that incorporation-by-reference with the almost identical approach in the statute at issue in the present case:
This section only applies to motor vehicles that meet the manual seat belt safety standards as set forth in federal motor vehicle safety standard 208. . . .
RCW 46.61.688(2).
The analysis of the Maxwell court is instructive as well:
In order to comply with the statute and the state regulations, an ordinary citizen would have to know where to find the Federal Motor Vehicle Safety Standards, or Standard 218. Counsel and the court found it because we are aware of the Code of Federal Regulations; the index therein cites us to chapter 49, section 571.218. The regulation itself consists of sections 1 through 7.3.4 and covers 16 pages. Within those sections are topics such as scope — purpose — application — definitions — requirements — impact attenuation — penetration — retention system — configuration — projections — labeling — helmet positioning index — selection of appropriate headform — reference marking — helmet positioning — conditioning — impact attenuation test — penetration test — and retention system test. Also included are 7 1/2 pages of diagrams and 4 pages of charts.
The regulation fails to inform the average citizen of the location or legal citation of the federal standard it adopts. We have not been advised how a citizen of common intelligence should discover this information. RCW 46.37.530, as implemented through WAC 204-10-040, fails to provide citizens with the fair notice required for due process.
. . . .
74 Wn. App. at 691-92. *Page 526The federal regulation has numerous sections relating to the qualities and tests to be supplied by the manufacturer. Ordinary citizens would not be able to tell which protective helmet met those requirements, even if they could find the regulation. In adopting the entire regulation, the State Patrol has made it impossible for ordinary citizens to understand what is required to comply with the Washington statute.
The situation here is identical to Maxwell. We have a vague reference to a "federal motor vehicle safety standard." There is no indication in the text of RCW 46.61.688 whether the "federal motor vehicle safety standard" is contained in a federal statute, a federal administrative rule, or even a "guidance document" put out by a federal agency. The ordinary citizen has no notice that the actual regulation is contained in volume 49 of the Code of Federal Regulations at section 571.208.
But if some extremely diligent, or perhaps lucky, citizen did manage to locate "federal motor vehicle safety standard 208," they would then have to translate over 100 pages of detailed technical gibberish to determine if the car in which they were riding was one in which seat belts must be worn.6 If the hidden 16-page regulation in Maxwell was beyond the capacity of a "citizen of common intelligence" to discover and decipher, how can the majority determine that the common citizen could find, much less decipher, the maze that is 49 C.F.R. § 571.208?
Instead of looking to Washington case law for guidance, the majority turns to a string of citations from out-of-state cases, with no analysis of whether the cases cited dealt with the vague reference of inscrutable federal statutes.7 In fact the majority implicitly acknowledges that these cases deal with a situation far removed from that at bar: when a *Page 527 motorcyclist who fails to wear any helmet at all complains that a requirement to wear a certain class of helmet is vague. Division Three of our own Court of Appeals dealt with such a case in Cityof Kennewick v. Henricks, 84 Wn. App. 323, 927 P.2d 1143 (1996), and correctly held that the defendant could not challenge the vagueness of a helmet standard incorporated by reference when the defendant admitted that he was not wearing any helmet. Although the majority claims that such cases are analogous, the majority can shoehorn such cases into relevance only by an obvious misreading of the statute.
The majority states that "[t]he ordinary citizen reading this statute is put on notice that there is a general obligation to wear a seat belt." Majority at 521.8 Not so. The text of the statute says no such thing. There is no obligation to wear a seat belt unless the vehicle in which one is riding meets a certain condition. This condition precedent is that the vehicle "meet[s] the manual seat belt safety standards as set forth in federal motor vehicle safety standard 208." RCW 46.61.688(2). The subsection of the statute cited by the majority, subsection (3), does not even apply unless the car meets the federal standard.
The majority's claim that "[t]he statute puts the reader on notice that whether an exception applies to a particular vehicle requires a more searching inquiry," majority at 521, turns the plain language of the statute on its head, as the requirement to wear a seat belt in subsection (3) is conditioned on the occupant's car meeting the federal safety standard.
The majority misreads the statute, misidentifies the constitutional test to be applied, and ignores that crucial *Page 528 line of cases which protects Washington's citizens from vague and hidden laws. I dissent.
ALEXANDER, C.J., concurs with SANDERS, J.
Traditional text is a system of displaying words and images in a two-dimensional format on a sheet of paper or other stationary material surface. . . . Traditional text is typically presented in a linear form with a single path to progress through the text, starting at the beginning and reading to the end. . . . The reader must follow an invariant and predetermined route dictated by the medium: start to finish, left to right, top to bottom.
Rogelio Lasso, From the Paper Chase to the Digital Chase:Technology and the Challenge of Teaching 21st Century LawStudents, 43 SANTA CLARA L.REV. 1, 8 (2002) (footnote omitted).
In contrast to the majority, I believe that "constructional formality" — which might more accurately be described as reading the statute the way the legislature wrote it — is best.
But the requirement in Spears was crystal clear — wear a helmet with the specified label. A citizen did not need to search the federal regulation to see what safety standards that label embodied. The citizen need only make sure their helmet had the label. That case is easily distinguished from cases likeMaxwell and the case at bar, in which the task facing the citizen in determining what conduct is prohibited is incomparably more difficult and complex.