State v. McGee

Johnson, J.

(dissenting) — I disagree with the majority's conclusion that RCW 69.50.435(a) is subject to only one reasonable interpretation. I would find the statute ambiguous and would apply well-settled rules of statutory construction to resolve the issues in this case. Because the majority fails to adhere these rules of construction, I must respectfully dissent.

This case involves a statute that is capable of and has been reasonably interpreted two ways. The first rule of construction ignored by the majority is that a statute is ambigú*797ous when it is susceptible to two or more reasonable interpretations. State v. Garrison, 46 Wn. App. 52, 54, 728 P.2d 1102 (1986). The majority, despite professing adherence to this rule, divines one possible meaning and pronounces the statute unambiguous. I disagree. The statute before us has been interpreted by two divisions of the Court of Appeals.1 One division unanimously interpreted the statute one way; the other unanimously read it another. The analogous federal statute has been examined by several courts with the same split results.2 I find this split determinative on the issue this statute can be interpreted two reasonable ways.

The violation at issue in this case is the enhanced penalty for "possessing with the intent to . . . deliver a controlled substance ... to a person . . . within one thousand feet" of a school. RCW 69.50.435(a). The defendant contends the statute requires the State to prove the defendant possessed a controlled substance within a 1,000-foot radius of a school and intended to distribute the controlled substance to a person within the 1,000-foot radius. The majority holds the statute only requires the State to prove possession within a protected zone. The majority finds the defendant's interpretation unreasonable and so concludes there is no ambiguity. *798The majority's analysis, however, articulates the reasons why the majority prefers its own interpretation of the statute, but fails to establish why the defendant's interpretation is unreasonable. I conclude the defendant's interpretation is equally reasonable and the statute is ambiguous.

The majority correctly notes RCW 69.50.435(a) is an enhanced penalty for violating RCW 69.50.401(a) within 1,000 feet of a school. Majority, at 788. Yet the majority fails to explain why the modifier "within one thousand feet of the perimeter of the school grounds" should not be applied to each element of each offense identified in RCW 69.50.401(a), including "to a person". RCW 69.50.401(a) requires the State to prove both possession and an intent to deliver. RCW 69.50-.435(a) may thus reasonably be read to require the State to prove both these elements took place in a protected school zone.

Under the majority's reading of RCW 69.50.435(a), defendants merely passing through a protected school zone on their way to a narcotics sale elsewhere are treated the same as those defendants intending to distribute the drugs within the protected zone. The defendant instead contends this statute distinguishes between drug possession and drug transactions within a protected school zone. I find the defendant's interpretation more reasonable. As a federal judge interpreting a similar statute correctly concluded, to charge an enhanced penally every time a defendant passes through a protected zone on his way to a transaction elsewhere "stretches the scope of the statute beyond logical and acceptable bounds". United States v. Coates, 739 F. Supp. 146, 153 (S.D.N.Y. 1990).

Thus, because I find a substantial split of authority on this issue and because I find the defendant's interpretation of RCW 69.50.435(a) equally reasonable to the majority's, I would hold this statute is ambiguous.

Finding an ambiguity, I would next look to the legislative intent and attempt to give meaning to the statute in accord with that intent. See In re Marriage of Kovacs, 121 Wn.2d 795, 804, 854 P.2d 629 (1993). However, if the statute con*799tains no ambiguity, as the majority contends, we must derive its meaning "from the language of the statute alone". Cherry v. Municipality of Metro Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991) (citing In re Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988)). Here, again, the majority ignores the rules of statutory construction. Despite purporting to have found the unambiguous meaning of the statute, the majority turns to the legislative history of the omnibus alcohol and controlled substances act to support its holding. The majority explains, "[tjhroughout the omnibus act, the Legislature discusses the detrimental impact of drugs on our children, our schools, and our community", and concludes "[o]ur interpretation advances the legislative purpose by discouraging possession of more than personal use amounts within the school zone, thereby decreasing the likelihood of violence and the risk drugs will find their way into the hands of minors". Majority, at 790.

While this is a lofty goal, it suggests the majority misunderstands its role when it interprets a statute. Rather than attempting to give meaning to RCW 69.50.435(a) consistent with the Legislature's intent, as the rules of construction direct us to do, the majority provides us with an interpretation of the legislative history consistent with the majority's desired result. When we interpret a statute's legislative history, we must not only attempt to ascertain the Legislature's purpose in enacting the statute, but also its scope. Otherwise we risk extending the reach of the statute beyond that intended by the Legislature. Although the legislative history of the alcohol and controlled substances act indicates the Legislature is concerned with the harmful effects of drugs on our children, it does not eliminate the ambiguity at issue in this case. As I read the legislative history, it is just as likely that enhancing the penalty for selling, not possessing, drugs in a school zone is consistent with the purpose of RCW 69.50.435(a).

Faced with an ambiguity and finding no clear guidance from the Legislature, I would turn to one final rule of con*800struction ignored by the majority: the rule of lenity. The rule of lenity dictates we must construe a statute strictly against the State when we are faced with an ambiguous statute and we find no direction from the Legislature. State v. Roberts, 117 Wn.2d 576, 586-87, 817 P.2d 855 (1991); State v. Gore, 101 Wn.2d 481, 485-86, 681 P.2d 227, 39 A.L.R.4th 975 (1984). The rule of lenity is grounded in principles of separation of powers and due process. "Because the legislature, not the judiciary, has the power to enforce societal judgments through the penal law, separation of powers cannot be preserved unless judges are prevented from construing statutory mandates liberally." Note, A Functional View of the Rule of Lenity: Does Theft of Misaddressed Mail Violate the Federal Mail Theft Statute?, 58 Fordham L. Rev. 215, 220 (1989). Due process "requires that citizens be given fair notice of conduct forbidden by a penal statute", State v. Brown, 33 Wn. App. 843, 846, 658 P.2d 44, review denied, 99 Wn.2d 1012 (1983), and the rule of lenity prevents such statutes from trapping the innocent. Note, supra at 221.

In Roberts this court also faced an ambiguous sentencing provision. The only issue on appeal was whether, under RCW 9.94A.360(6)(c), sentences must begin and end on the same date to be "served concurrently". Roberts, 117 Wn.2d at 579. Because the statute provided no definition for the term "served concurrently", we found the statute ambiguous and turned to the legislative history to give meaning to the provision. Roberts, 117 Wn.2d at 584-85. Finding the legislative intent on this issue equally ambiguous, we applied the rule of lenity and adopted the interpretation of RCW 9.94A.360-(6)(c) most favorable to the defendant. Roberts, 117 Wn.2d at 586.

Here, the inherent ambiguity and lack of legislative guidance similarly dictates we apply the rule of lenity to arrive at the interpretation of the statute most favorable to this defendant. The reading of RCW 69.50.435(a) most favorable to the defendant in this case requires the State to prove the defendant intended to distribute the drugs within 1,000 feet *801of the school. I find no evidence the State has met this burden.

For the foregoing reasons, I would reverse the defendant's sentence enhancement under RCW 69.50.435(a).

Utter, Smith, and Madsen, JJ., concur with Johnson, J.

State v. Wimbs, 68 Wn. App. 673, 678, 847 P.2d 8 (1993) (concluding the additional penalty applied to possession with intent to deliver to a person within 1,000 feet of a schoolyard); State v. McGee, cause 27140-7-1 (Sept. 28, 1992), slip op. at 7-8 (holding RCW 69.50.435(a) applies to all listed crimes committed within the prohibited area, regardless where the defendant intended the delivery to occur).

United States v. Watson, 788 F. Supp. 22 (D.D.C. 1992); United States v. Testa, 768 F. Supp. 221 (N.D. Ill. 1991); United States v. McDonald, 777 F. Supp. 44 (D.D.C. 1991), aff'd, 991 F.2d 866 (D.C. Cir. 1993); United States v. Coates, 739 F. Supp. 146 (S.D.N.Y. 1990); United States v. Roberts, 735 F. Supp. 537 (S.D.N.Y. 1990); United States v. Liranzo, 729 F. Supp. 1012 (S.D.N.Y. 1990) (each finding the analogous federal statute requires the government to prove both possession and intent to distribute within the 1,000-foot zone); United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992); United States v. Wake, 948 F.2d 1422 (5th Cir. 1991) (statute applies to defendants who possess drugs in the protected areas, regardless where the delivery is intended to occur), cert. denied, _U.S._, 119 L. Ed. 2d 569, 112 S. Ct. 2944 (1992).