State v. Conte

¶49 (dissenting) — John Conte, Frank Colacurcio, Jr., Frank Colacurcio, Sr., and Marsha Furfaro were charged with nine counts of violating RCW 40.16.030. Defendants allegedly reimbursed individuals for campaign contributions, thereby concealing the identity of the contributors and sources of the contributions. Because of defendants’ alleged scheme, certain Seattle City Council members’ election campaign committees filed false campaign finance reports.

Sanders, J.

¶50 Initiative 276 (1-276), overwhelmingly approved in 1972 by the people of Washington, specifically regulates and *818prohibits this precise conduct. Seeber v. Pub. Disclosure Comm’n, 96 Wn.2d 135, 138, 634 P.2d 303 (1981). Now codified at chapter 42.17 RCW, 1-276 “provides a comprehensive financial reporting scheme for lobbyists, campaign committees, public officials and candidates.” Seeber, 96 Wn.2d at 138. The people created the initiative for the “expressed purpose of fostering openness in their government”; its creation reflects our belief that the electorate “has the right to know of the sources and magnitude of financial and persuasional influences upon government.” Fritz v. Gorton, 83 Wn.2d 275, 309, 517 P.2d 911 (1974). See RCW 42.17.010(2) (“[T]he people have the right to expect from their elected representatives at all levels of government the utmost of integrity, honesty, and fairness in their dealings.”).

¶51 As the majority states, “[cjhapter 42.17 RCW includes two statutes that the defendants concede would be violated if the State’s allegations were proven and its theory of the law was correct.” Majority at 805. Yet despite these two statutes specifically proscribing defendants’ precise conduct and the State’s concession that RCW 40.16.030 has never before been applied to a campaign violation, the majority holds chapter 42.17 RCW does not bar prosecution of defendants under RCW 40.16.030. I disagree as the public disclosure act (PDA), chapter 42.17 RCW, limits the State to civil recoveries.

1. The Plain Meaning of Chapter 42.17 RCW Limits the State to Civil Remedies

¶52 Our goal is to ascertain and implement the legislature’s intent. Dep’t of Transp. v. State Employees’ Ins. Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982). To determine legislative intent, “we begin with the statute’s plain language and ordinary meaning.” Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999). “If a statute is plain and unambiguous, its meaning must be primarily derived from the language itself.” Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001). *819“Plain language does not require construction.” Koenig v. City of Des Moines, 158 Wn.2d 173, 181, 142 P.3d 162 (2006) (citing State v. Thornton, 119 Wn.2d 578, 580, 835 P.2d 216 (1992)).

¶53 As defendants correctly observe, the unambiguous language of chapter 42.17 RCW indicates the act’s penalties are “complete, exclusive and non-criminal.” Br. of Resp’ts at 12. The trial judge correctly determined chapter 42.17 RCW “constitute [s] a comprehensive statute providing for a series of prohibited acts and requirements on political candidates and contributors [; the statute] treat [s] the entire subject area of political contributions to local and statewide campaigns.” Tr. of Proceedings (Feb. 16, 2006) at 26. RCW 42.17.390 and .400 provide the act’s “sole provisions regarding penalties and remedies” and neither authorizes the imposition of criminal sanctions. Br. of Resp’ts at 12. Chapter 42.17 RCW empowers and specifically limits state attorneys and county prosecutors to bring only “civil actions” for “civil remedies]”; it provides:

The attorney general and the prosecuting authorities of political subdivisions of this state may bring civil actions in the name of the state for any appropriate civil remedy, including but not limited to the special remedies provided in RCW 42.17.390.

RCW 42.17.400(1) (emphasis added).

¶54 “[A\ny appropriate civil remedy” should end our analysis as it explicitly limits the State to civil remedies. The “special remedies” provided in RCW 42.17.390 and the statute’s reference to “any other remedies provided by law” (upon which the majority incorrectly fixates) is merely a subset of “any appropriate civil remedies.” Contrary to the majority’s belief, the clause “any other remedies provided by law” is not an invitation for the State to impose criminal sanctions.

2. RCW 40.16.030 Is Not Remedial

¶55 RCW 42.17.400(1) authorizes the State to bring “civil actions . . . for any appropriate civil remedy.” (Empha*820sis added.) The “special remedies” provided in RCW 42-.17.390 also limit enforcement options to civil remedies and sanctions. See RCW 42.17.390 (“[o]ne or more of the following civil remedies and sanctions may be imposed by court order in addition to any other remedies provided by law” (emphasis added)). As stated above, the majority mistakenly emphasizes the phrase “any other remedies provided by law,” believing it indicates “additional remedies can be of any kind, including criminal remedies.” Majority at 809. But the majority fails to focus on the statute’s reference to the word “remedies” Because RCW 40.16.030 is neither civil nor remedial, it does not qualify as one of the intended “other remedies” cited by the statute. See United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 946 (1985) (criminal sanctions are rarely described as “remedies”).

¶56 RCW 42.17.390’s language aptly reflects the predominantly remedial character of the legislation. See RCW 42.17.390(1) (providing for an election to be held void if the court finds a violation of this chapter probably affected the outcome of an election and stating, “ [i] t is intended that this remedy be imposed freely... to protect the right of the electorate to an informed and knowledgeable vote”); RCW 42.17.390(2) (providing for a lobbyist’s registration to be revoked or suspended should he violate this chapter); RCW 42.17.390(3) (“[a]ny person who violates any provisions of this chapter may be subject to a civil penalty”); RCW 42.17.390(6) (providing for injunctive relief). See 3 Norman J. Singer, Sutherland Statutory Construction § 60.02, at 152-53 (5th ed. 1992) (“Usually ‘remedial’ is used in connection with legislation which is not penal or criminal in nature, in that such laws do not impose criminal or other harsh penalties.”).

¶57 By contrast, RCW 40.16.030 is punitive: “Every person who shall knowingly procure or offer any false or forged instrument to be filed, registered, or recorded in any public office . . . shall be punished by imprisonment... or *821by a fine . . . Unlike civil statutes, which are considered remedial, criminal statutes are generally associated with punitive consequences.7 United States v. Ursery, 518 U.S. 267, 277, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Because RCW 40.16.030’s sanctions are punitive, it is not a “civil remedy” contemplated by chapter 42.17 RCW and is therefore inapplicable to defendants.

3. The History of Chapter 42.17 RCW and the 1972 Voters Pamphlet Confirms the PDA Limits the State to Civil Remedies

¶58 Generally, only when the language of an initiative is ambiguous do we look to other extrinsic sources, such as the voters pamphlet, to determine electoral intent. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 671, 72 P.3d 151 (2003). Since chapter 42.17’s language unambiguously allows the State to seek only civil remedies, our analysis need not go further. However, even if the statutory language was ambiguous, the history of 1-276 supports defendants’ position. I-276’s ballot title, explanatory comments, and the text of the initiative itself informed voters the act would provide only “civil penalties.” Clerk’s Papers (CP) at 46-47, 50-61, 68.

¶59 Importantly, the 1972 ballot included an alternative campaign finance law, Referendum Bill 25, described by its supporters as “a strict, realistic approach to the reporting and limiting of campaign contributions and expenditures.” CP at 48. Referendum Bill 25 also proposed a comprehensive statutory scheme for regulating campaign contributions and expenditures, yet provided for “criminal penalties” instead of civil. CP at 48, 68 (voters were informed violators of Referendum Bill 25 “would be guilty of misdemeanors”). Voters were asked to compare and choose between the two competing measures in the 1972 election. By *822choosing 1-276 over Referendum Bill 25, voters expressed specific intent to enact a comprehensive campaign finance law that provided exclusively for civil penalties.

¶60 Accordingly, I dissent.

C. Johnson and Chambers, JJ., concur with Sanders, J.

Reconsideration denied June 11, 2007.

Furthermore, RCW 42.17.400(5) states, “[i]f the violation is found to have been intentional, the amount of the judgment. .. maybe trebled as punitive damages.” Such a clause provides the extent of punitive sanctions available to the State and does not suggest the State may seek further punitive measures in other criminal statutes.