In re the Personal Restraint

Petition of















No. 72004-5


Filed May 9, 2002


SANDERS, J. (concurring)—Although I agree with the majority's disposition of this case, I write separately because the petition indirectly relates to an important issue pertaining to the constitutionality of the Persistent Offender Accountability Act, popularly known as the "three strikes initiative."

In State v. Cloud, 95 Wn. App. 606, 976 P.2d 649 (1999), the Court of Appeals, Division I invalidated former RCW 9.94A.120(4) (1994) mandating a 20-year minimum sentence for first degree murder, first enacted as part of Initiative 593. Cloud held that Initiative 593 violated the single subject requirement of art. II, § 19 of the Washington State Constitution thus striking down RCW 9.94A.120(4). Cloud, 95 Wn. App. at 618.

Solomon, however, complains that he was adversely affected by legislation enacted to replace the provision invalidated by Cloud. That argument must fail as Cloud expressed "no opinion about the validity of the reenacted statute." Cloud, 95 Wn. App. at 618 n.26.

Whether the three strikes initiative violates the single subject rule is not currently before us. I recognize, however, that this court's treatment of the defendant's constitutional challenge to Initiative 593 under art. II, § 19 in State v. Thorne, 129 Wn.2d 736, 757-58, 921 P.2d 514 (1996) may be problematic in light of Amalgamated Transit v. State, 142 Wn.2d 183, 216-17, 11 P.3d 762 (2000) and City of Burien v. Kiga, 144 Wn.2d 819, 828, 31 P.3d 659 (2001).

As stated in Amalgamated:

There are two distinct prohibitions in article II, section 19. The first is that no bill shall embrace more than one subject. The purpose of this prohibition is to prevent logrolling or pushing legislation through by attaching it to other legislation. The second prohibition is that no bill shall have a subject which is not expressed in its title. The purpose of this prohibition is to notify members of the Legislature and the public of the subject matter of the measure.

Amalgamated, 142 Wn.2d at 207 (citations omitted).

In Thorne, the defendant challenged Initiative 593 under the first prohibition of art. II, § 19, i.e., that it contained "two distinct subjects: (1) provisions for life imprisonment for three-time ‘persistent offenders’ convicted of most serious offenses, and (2) provisions making certain other offenders ineligible during mandatory minimum terms for any form of early release." Thorne, 129 Wn.2d at 757. The court dismissed the defendant's constitutional claim relying exclusively on the scope of the title clause, concluding:

[W]e need not decide whether the part of the Initiative which concerns early release is beyond the scope of the ballot title because the part of the law which is involved in the case before us now is clearly within the scope of the title of the Initiative.

The ballot title to Initiative 593 contains only one subject, persistent offenders; hence, any provisions in the law which relate to that subject are valid under article II, section 19.

Id. at 758 (citations omitted).

Whether Thorne is sustainable on the title clause, much less the single subject clause, is an open question in view of the Court of Appeals' decision in Cloud and our recent decisions concerning the appropriate remedy for violations of art. II, § 19 in Amalgamated and Kiga.

Amalgamated held that Initiative 695 violated both the title and the single subject provisions of art. II, § 19. 142 Wn.2d at 191. The remedy was to strike the Initiative in its entirety. Id.

In Kiga, we held that Initiative 722 violated the single subject rule and again we invalidated the statute in its entirety, holding:

I-722 embodies two unrelated subjects in violation of Wash. Const. art. II, § 19. Because we cannot know if either subject of I-722 would have garnered popular support standing alone, we must declare the entire initiative void.

Kiga, 144 Wn.2d at 828.

In Cloud, the Court of Appeals found that Initiative 593 violated the single subject rule, but it struck down only the offending provisions, allowing the remainder to stand. Cloud was decided before Amalgamated and Kiga, and thus arguably did not apply the appropriate remedy of invalidation in its entirety required by those decisions.

However, regardless of how Initiative 593 now might be adjudicated under the single subject rule, were we to revisit State v. Thorne, 129 Wn.2d 736, 758, 921 P.2d 514 (1996), Solomon's claim would fail in any event because he was not sentenced under Initiative 593, but rather the statute enacted to replace those provisions of 593 that pertained to mandatory minimum sentences. Unlike the validity if Initiative 593, the issue raised here does not meet the standard for review set out in RAP 13.5(a), (b), and (c).

I therefore concur petitioner's motion to modify should be denied.

Secret Sanders Index