                                                                        FILED 

                                                                    DECEMBER 17,2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )           No. 32282-3-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JUSTIN ROSE,                                  )           PUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -     Washington's general criminal prosecution saving statute,

RCW 10.01.040, presumptively "saves" offenses already committed and penalties or

forfeitures already incurred from being affected by the amendment or repeal of a criminal

statute. As a result, offenses are prosecuted under the law in effect at the time they were

committed "unless," the statute provides, "a contrary intention is expressly declared in

the amendatory or repealing act." Id. In the more than one hundred years since the

saving statute was enacted, courts have only infrequently found an express·legislative

intent that the amendment or repeal of a criminal statute applies to pending prosecutions,

penalties, or forfeitures for earlier committed crimes.

       At issue in this case is whether Initiative 502, which was approved by voters in

November 2012 and became effective on December 6,2012, fairly conveys a legislative

intent-in this case, the voters' intent-that its decriminalization of possession by
No. 32282-3-III
State v. Rose


persons age 21 and older of marijuana related drug paraphernalia and small amounts of

marijuana applies to pending prosecutions. We hold that this is one of the rare cases

where such an intent is fairly conveyed. We reverse the post-December 6,2012

judgment and sentence entered against Justin Rose.

                    FACTS AND PROCEDURAL BACKGROUND

       On June 26, 2012, Justin Rose was fishing on the Yakima River below the Roza

Dam when he and his companions were approached by a Washington Fish and Wildlife

agent interested in checking for their fishing licenses. The Fish and Wildlife agent

noticed that Mr. Rose was smoking; based on the agent's training and experience, he

believed Mr. Rose was smoking marijuana from drug paraphernalia: a bong. When the

agent told Mr. Rose what he had seen, Mr. Rose admitted he had been smoking marijuana

and handed over the bong, which contained some marijuana, to the agent. Mr. Rose was

over age 21 at the time. He was charged with one violation ofRCW 69.50.4014

(possession of less than 40 grams of marijuana) and one violation of former RCW

69.50.412(1) (2002) (use of drug paraphernalia).

       In October 2012, Mr. Rose entered into a deferral agreement with the State,

staying the prosecution. The State agreed that if Mr. Rose complied with the conditions.

identified in the agreement for one year, it would move to dismiss both charges. Mr.

Rose agreed that ifhe did not comply with the conditions, then on the request of the State

the court would revoke the stay and proceed to a bench trial at which, he stipulated, the

                                             2

I

I

     No. 32282-3-III
     State v. Rose


     police reports and State's evidence would be sufficient to convict him of the charged

     crimes. The conditions imposed on Mr. Rose included performing community service,

     paying a fee and costs, obtaining an alcohol and drug evaluation, and fully complying

     with any recommendation of alcohol or drug treatment or other services resulting from

     the evaluation.

            Initiative 502 (1-502), "AN ACT Relating to marijuana," was approved by 55.7

     percent of Washington voters on November 6,2012. LAWS OF 2013, ch. 3. 1 Under the

     Washington Constitution, the law became effective 30 days later, on December 6, 2012.

     Const. art. II, § 1(d). The initiative did not immediately decriminalize the production,

     processing and retail sale of marijuana, all of which could be conducted legally only after

     regulations were adopted and licensing could take place. See, e.g., Section 4 of 1-502,

     LAWS OF 2013, ch. 3, § 4;   cf State v. Reis, 183 Wn.2d 197,201,351 P.3d 127 (2015)

     (under 2011 amendments to the Washington State Medical Use of Cannabis Act, RCW

     69.51A.040, decriminalizing medical use "in accordance with the terms and conditions of

     this chapter," legal use must await the creation of the statutorily required registry). But

     Sections 20(3) and 22(1) ofI-502 did unconditionally decriminalize possession ofless

     than one ounce of marijuana by persons 21 and over, and did remove marijuana




            1 See
               http://resuIts.vote.wa.gov/results/20 1211 06/Initiative-Measure-No-502­
     Concerns-marijuana_ ByCounty .html (last visited on Dec. 10, 2015).

                                                   3

No. 32282-3-III
State v. Rose


paraphernalia from the unlawful categories of paraphernalia. LAWS OF 2013, ch. 3, §§

20(3), 22(1). 2

       In or before January 2013, Mr. Rose violated the conditions of his deferral

agreement by failing to enter into an intensive outpatient treatment program. The State

moved in January for a review and revocation of the stay of the proceedings. At a

hearing before the Lower Kittitas County District Court, Mr. Rose conceded that he had

not fulfilled all of the conditions agreed in the stipulation. The district court revoked the

stay order, proceeded to a bench trial, and found Mr. Rose guilty of both counts.


       2 The relevant changes, now codified at former RCW 69.50.4013 (2013) and RCW
69.50.412(1), provided as follows:
       RCW 69.50.4013(3):
       The possession, by a person twenty-one years of age or older, of useable
       marijuana or marijuana-infused products in amounts that do. not exceed
       those set forth in section 15(3) of this act is not a violation of this section,
       this chapter, or any other provision of Washington state law.

LAWS OF 2013, ch. 3, § 20(3). The amounts of useable marijuana set forth in subsection
15(3) of 1-502 were "(a) One ounce of useable marijuana; (b) Sixteen ounces of
marijuana-infused product in solid form; or (c) Seventy-two ounces of marijuana-infused
product in liquid form." Id. § 15(3).
       RCW 69.50.412(1):
       His unlawful for any person to use drug paraphernalia to ... inject, ingest,
       inhale, or otherwise introduce into the human body a controlled substance
       other than marijuana. Any person who violates this subsection is guilty of a
       misdemeanor.

LAWS OF 2013, ch. 3, § 22(1).



                                               4

No. 32282-3-II1
State v. Rose


       Before sentencing, Mr. Rose moved to dismiss the charges based on the

decriminalization of his offenses by 1-502. The district court denied Mr. Rose's motion.

It recognized that RCW 10.01.040, which provides that offenders are presumptively

prosecuted under the laws in effect at the time of their offenses, does not apply if

intervening legislation conveys a contrary intent. But the district court concluded that 1­

502 did not convey a contrary intent. It sentenced Mr. Rose to 90 days confinement on

each count, to run consecutively.

       Mr. Rose appealed to the Kittitas County Superior Court, which aftInned the

district court. Mr. Rose sought discretionary review of the superior court's order, which

a commissioner of this court granted, finding that the decision involves an issue of public

interest that should be detennined by an appellate court. No. 32282-3-III, Comm'r's

Ruling (June 26,2014); RAP 2.3(d)(3).

                                        ANALYSIS

       The common law provides that pending cases be decided "according to the law in

effect 'at the time of the decision.'" State v. Brewster, 152 Wn. App. 856, 859,218 P.3d

249 (2009) (quoting State v. Zornes, 78 Wn.2d 9, 12,475 P.2d 109 (1970)3) (noting that

the "well-defined rule at common law" was to treat a repealed statute "as if it had never

existed, except as to matters and transactions past and closed"). Yet in 1901, the


      3 Overruled by implication on other grounds in United States v. Batchelder, 442
U.S. 114,99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979).

                                              5

No. 32282-3-III
State v. Rose


Washington legislature adopted a criminal prosecution saving statute, now codified at

RCW 10.01.040, whose saving clause "presumptively 'save[s]' all offenses already

committed and all penalties or forfeitures already incurred from the effects of amendment

or repeal," requiring that they be prosecuted under the law in effect at the time they were

committed "unless," as the statute provides, "a contrary intention is expressly declared in

the amendatory or repealing act." LAWS OF 1901, Ex. Sess., ch. 6, § 1; Brewster, 152

Wn. App. at 859. 4

       "Th[e] statute, being in derogation of the common law, must be strictly

construed." Zornes, 78 Wn.2d at 13 (citing Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830

(1959)). "Since the statute does not require that an intent to affect pending litigation be

stated in express terms, but merely provides that the intent must be 'expressed' in the

statute," our Supreme Court "construe[s] the statute as authorizing the expression of such

an intent in words that fairly convey that intention." Id. This means that "[t]he saving

force of the statute is applied narrowly and its exception-'unless a contrary intention is



       4   RCW 10.01.040 provides:

       Whenever any criminal or penal statute shall be amended or repealed, all
       offenses committed or penalties or forfeitures incurred while it was in force
       shall be punished or enforced as if it were in force, notwithstanding such
       amendment or repeal, unless a contrary intention is expressly declared in
       the amendatory or repealing act, and every such amendatory or repealing
       statute shall be so construed as to save all criminal and penal proceedings,
       and proceedings to recover forfeitures, pending at the time of its enactment,
       unless a contrary intention is expressly declared therein.

                                              6

No. 32282-3-III
State v. Rose


expressly declared in the amendatory or repealing act'-is interpreted broadly." State v.

Kane, 101 Wn. App. 607, 612,5 P.3d 741 (2000).

       A legislative intent that the repeal or amendment of a criminal statute applies

retroactively to earlier-committed offenses has been found in only a few cases. It was

found in Zornes, in which the defendants, husband and wife, were convicted of violations

of the Uniform Narcotic Drug Act after police officers raided their home, conducted a

"thorough search," and recovered some marijuana cigarette ends in garbage cans and a

few bits of marijuana in a match box. 78 Wn.2d at 10. Although neither defendant had a

criminal history, the husband received a minimum sentence of five years and a maximum

sentence of20 years in the state penitentiary, while the wife's sentence was deferred but

she was ordered to spend one year in county jail. ld. In 1969, while the appeal of their

convictions was pending, the legislature enacted legislation taking cannabis out of the

Narcotic Drug Act, RCW 69.33.220, and specifically including it in the dangerous drug

act, RCW 69.40.060. ld. at 12. New provisions of the dangerous drug act provided, in

part, that a first offender whose violation solely involved cannabis, "shall be guilty of a

misdemeanor, and punishable by a fine not exceeding five hundred dollars or by

imprisonment in the county jail, not exceeding six months, or by both such fine and

imprisonment." ld. at 11 (quoting LA WS OF 1969, ch. 256, § 10).

       Although acknowledging that the 1969 legislation "does not contain the words,

'This act shall apply to pending cases,'" the court held in Zornes that it did contain

                                              7

  No. 32282-3-III
. State v. Rose


 language "from which the intent that it shall apply to such cases can be reasonably

 inferred." ld. at 13. It cited to language in the act which stated, "the provisions of this

 chapter shall not ever be applicable to any form of cannabis," and observed that the

 words "not ever" would be unnecessary if the legislature intended the act to have only

 prospective effect. ld. (quoting LAWS OF 1969, ch. 256, § 7( 13)). The court concluded

 "the legislature added these words for a purpose," that it thereby expressed an intention

 that the amendment applied to pending actions, and that the charges could not stand. ld.

        In State v. Grant, 89 Wn.2d 678,575 P.2d 210 (1978), the defendant was a

 passenger in a car en route from Seattle to Exposition '74 in Spokane when the driver,

 her husband, was stopped in Adams County for suspicion of driving under the influence.

 Following the stop, the defendant became "upset" and "quite vocal." ld. at 680. She was

 charged in 1974 and was convicted in Adams County Justice Court of the offense of

 being intoxicated on a public highway, a violation ofRCW 9.68.040, which had been

 repealed by Laws of 1972, ch. 122, § 26, although the repeal was not effective until

 January 1,1975. ld. at 681. The defendant appealed her conviction to the superior court.

        By the time her appeal was heard in May 1975, the repeal ofRCW 9.68.040 had

 become effective, as had a new act, which stated in relevant part:

        It is the policy of this state that alcoholics and intoxicated persons may not
        be subjected to criminal prosecution solely because of their consumption of
        alcoholic beverages but rather should be afforded a continuum of treatment
        in order that they may lead normal lives as productive members of society.


                                               8

No. 32282-3-111
State v. Rose


Grant, 89 Wn.2d at 682 (quoting RCW 70.96A.01O). As in Zornes, the legislation did

not contain the words, "This act shall apply to pending cases." And as the State argued to

the court, it also did not include the words "not ever be applicable" that were found

sufficient in Zornes, or language having a similar meaning. The Supreme Court held in

Grant that neither expression was required, although it "would require a similarly strong

expression of intention ... to overcome the presumption included in RCW 10.01.040."

89 Wn.2d at 684.

       It found such an expression of intention in the legislation's statement of policy that

alcoholics and "intoxicated persons may not be subjected to criminal prosecution" solely

because of their consumption of alcoholic beverages. It read that language as an "express

declaration of a legislative intention that no person shall go to trial on such a charge after

the effective day ofthe act." Id.

       In reported cases finding no "fairly conveyed" legislative intent to apply a

substantive change to pending prosecutions, courts have often found not only the absence

of express language supporting such an intent but language negating any such intent.

       In State v. McCarthy, 112 Wn. App. 231, 233, 48 P.3d 1014 (2002), the defendant

pleaded guilty to delivery of heroin. The parties had several disputes about the number of

points to be counted toward the defendant's offender score for his prior conviction for

solicitation to deliver heroin. One dispute involved an amendment to former RCW

9.94A.525(l2) that was enacted in 2002, while McCarthy's challenge to his sentence was

                                              9

    No. 32282~3~III
    State v. Rose

I   on appeal. The court observed that "[n]othing in the amendment suggests that the

    Legislature intended the statute to apply retroactively" and, moreover, the amendment

    "expressly states that it 'appl[ies] to crimes committed on or after July 1,2002.'" 112

    Wn. App. at 237 (alteration in original) (quoting Second Substitute H.B. 2338 § 29, 57th

    Leg., Reg. Sess. (Wash. 2002». When our Supreme Court was presented with the same

    argument in State v. Ross, 152 Wn.2d 220, 238, 95 P.3d 1225 (2004), it agreed with

    McCarthy. While stating that "[t]o avoid application of the savings clause, we have not

    required that the legislature explicitly state its intent that amendments repealing portions

    of criminal and penal statutes apply retroactively[,]" it held that in enacting the 2002

    amendments at issue in both cases, the legislature "failed to express any intent that [they]

    apply retroactively to pending prosecutions" and in fact expressed the opposite intent. Id.

    at   238~39.


             In this case, we are dealing with an initiative to the legislature. While standard

    rules of statutory construction apply, our concern is with the intent of the voters. Am.

    Legion Post No. 149 v. Dep't ofHealth, 164 Wn.2d 570, 585,192 PJd 306 (2008).5 The


    5 As summarized by our Supreme Court:

             "[I]n determining the meaning of a statute enacted through the initiative
             process, the court's purpose is to ascertain the collective intent of the voters
             who, acting in their legislative capacity, enacted the measure. Where the
             language of an initiative enactment is plain, unambiguous, and well
             understood according to its natural and ordinary sense and meaning, the
             enactment is not subject to judicial interpretation." "In construing the

                                                    10 

No. 32282-3-III
State v. Rose


issue is whether an intent by the voters to apply its decriminalization provisions to stop

pending prosecutions is fairly conveyed by the initiative.

       The first matter addressed by authors of I-502 in Part I of the initiative is

expressed by the part's title, "Intent." It begins, "The people intend to stop treating adult

marijuana use as a crime and try a new approach." It then proceeds to highlight aspects

of "the new approach." The first aspect of the "new approach" identified is to "[a]llow[]

law enforcement resources to be focused on violent and property crimes."

       The transitive verb "treat" is defined as having the following relevant meanings:

       3 a: to deal with or bear oneself toward in some specified way: behave or
       act towards: assume an attitude or form of behavior to : USE ... b : to
       regard (as something or in a particular way) and act toward or deal with
       accordingly     usu. used with as.

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2434 (1993). The State "treat[s]

adult marijuana use as a crime" not only when it arrests and charges individuals, but also

when it takes them to trial and imposes and enforces penalties. "Law enforcement


       meaning of an initiative, the language of the enactment is to be read as the
       average informed lay voter would read it."
              ... Only if the language is ambiguous may the court examine
       extrinsic sources such as a voter's pamphlet.

       Id. at 585-86 (first alteration in original) (citations omitted) (internal quotation
marks omitted) (quoting Amalgamated Transit Union Loeal58? v. State, 142 Wn.2d 183,
205, 11 P.3d 608 (2000); State v. Brown, 139 Wn.2d 20, 28, 983 P.3d 608 (1999). "[We]
will not substitute [our] judgment for that of the electorate unless the initiative
contravenes state or federal constitutional provisions." Id. at 586. No state or federal
constitutional concern is implicated here.

                                              11 

No. 32282-3-III
State v. Rose


resources" that the initiative proposed to "focus[] on violent and property crimes" include

prosecutors and criminal courts as well as arresting officers. 1-502, Part 1, Sec. 1.

       To say that "the people intend to stop treating adult marijuana use as a crime" and

"[a]llow[] law enforcement resources to be focused on violent and property crimes", id.,

is as strong a statement as is the statement at issue in Grant that "it is the policy of this

state that alcoholics and intoxicated persons may not be subjected to criminal prosecution

solely because of their consumption of alcoholic beverages." 89 Wn.2d at 682. Both are

equally characterizable as express declarations of a legislative intention that no person

shall go to trial on such a charge after the effective day of the act. It is also relevant that

we look at the language of 1-502 from the perspective of the average informed lay voter

rather than from the perspective of the legislature. Lay voters presented with an initiative

that they are told will "stop treating adult marijuana use as a crime" are more likely to

make the common law assumption that prosecution will be "stopped" on the .effective

date than that prosecutions will be "saved" by a contrary state law.

       This language on "Intent" must be read in the context of 1-502 as a whole, and as

pointed out earlier, it is clear from provisions of the initiative dealing with the production,

processing, and retail sale of marijuana that those activities could not be conducted

legally until regulations were in place under which persons could be validly licensed.

But the activities for which Mr. Rose was prosecuted were decriminalized on the

December 6,2012 effective date of 1-502. As to those activities, there is nothing in the

                                               12 

No. 32282-3-III
State v. Rose


remaining provisions of the initiative that negates the disapproval of continued

prosecution conveyed by Part I.

        Were we not satisfied that 1-502 is clear on its face, we would tum next to the

official State of Washington Voters' Pamphlet. "Analysis of legislative intent regarding

retroactivity is not ordinarily restricted to the statute's express language, and may be

gleaned from other sources, including legislative history." Kane, 101 Wn. App. at 614

(citing In re F.D. Processing, 119 Wn.2d 452,460,832 P.2d 1303 (1992)).6

        The argument in support of approval ofl-502 in the Voter's Pamphlet stated in

part:

        Argument For
        Initiative Measure 502

        Our current marijuana laws have failed. It's time for a new approach.

        Initiative 502 frees law enforcement resources to focus on violent
        crime.


        6 In Kane, the State challenged the trial court's decision to sentence the defendant
under a drug offender sentencing alternative (DOSA) for which Kane, a convicted felon,
had been ineligible at the time of his crime. Before Kane was sentenced, the legislature
broadened eligibility for the DOSA to include defendants whose prior felony convictions
were not for violent or sex offenses, making Kane eligible if the new statute applied to
him. Id. at 613-14. Kane could point to legislative materials from which he argued an
intent to apply the change to defendants in his situation could "be reasonably inferred."
Id. at 614. But as the court observed, the legislation "contains no language that even
remotely suggests an intention to make the amended eligibility criteria available in cases
arising before the effective date." Id. "[L]egislative history materials cannot make up for
the lack of words that fairly convey that intention in the ... amendatory statute itself."
Id.

                                             13
No. 32282-3-III
State v. Rose



       Treating adult marijuana use as a crime costs Washington State millions in
       tax dollars and ties up police, courts, and jail space. We should focus our
       scarce public safety dollars on real public safety threats.

State of Washington Voters' Pamphlet, General Election 30 (Nov. 6, 2012).7 This

argument, accepted by the majority of Washington voters, fairly conveys disapproval of

continued prosecution of the offenses committed by Mr. Rose.

       The State argues that the criminal prosecution saving statute'" creates an easily

administered, bright-line rule,''' on which the Legislature is entitled to rely when it

makes changes to criminal and penal statutes. Br. of Resp't at 5 (quoting Kane, 101 Wn.

App. at 618). We agree, but the point is not inconsistent with our decision. As history

demonstrates, when the legislature amends substantive criminal law it almost always

limits itself to identifying the change, without using language that conveys disapproval or

concern about pending prosecutions. There is no reason to believe this will change in the

future. We expect that the saving statute will usually apply.

       In the rare case, as here, where legislation includes additional language that fairly

conveys disapproval or concern about continued prosecution, we are required by RCW

10.01.040 to respect that expression of a contrary intention.




      7 https:llweLsos.wa.gov/agency/osos/enipress_and_ researchlPreviousElections
120121D0cuments/11-%20Spokane.pdf.


                                             14
No. 32282-3-III
State v. Rose


      Mr. Rose's convictions under RCW 69.50.4014 and former RCW 69.50.412(1) are

reversed.

                                              ~.~ J~
                                              v/~W.               ( {!~
                                        Siddoway, C.J.      ~
I CONCUR:


      .......,r'l.~ ... '3~"
 ~
~----f----l
Lawrence-Berrey, 1.
                               j




                                       15 

                                         32282-3-III

       KORSMO, J. (dissenting) ~ Although the voters' intent to eliminate in most cases

the crime of possession of marijuana was clearly expressed, there was no clear intent to

apply the amended statute to cases in progress. Accordingly, the savings statute applies

and Mr. Rose's conviction for marijuana possession after violating the terms of his

deferral agreement should be affirmed.

       The savings statute could hardly be clearer: "Whenever any criminal or penal

statute shall be amended or repealed, all offenses committed ... while it was in force

shall be punished or enforced as if it were in force ... unless a contrary intention is

expressly declared in the amendatory or repealing act, and every such ... statute shall be

so construed as to save all criminal and penal proceedings ... pending at the time of its

enactment." RCW 10.01.040 (emphasis added). On its face the statute requires that an

express contrary intention must be stated in the amending/repealing act in order to

overcome the savings statute; otherwise all amending or repealing acts shall be construed

to save the statute. In other words, the benefit of any doubt should go to maintaining the

repealed statute. Or put still another way, the saving statute creates a "presumption" that

can only be overcome by a "strong expression of intention." State v. Grant, 89 Wn.2d

678,684,575 P.2d 210 (1978) (citing State v. Walker,7 Wn. App. 878, 503 P.2d 128

(1972), rev 'd on other grounds, 82 Wn.2d 851, 514 P.2d 919 (1973)).
No. 32282-3-II1
State v. Rose


       The majority relies on two decisions that found an express declaration in the

words of the newly amended/enacted statute at issue, the plurality opinion in State v.

Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), overruled on other grounds by United States v.

Batchelder, 442 U.S. 114,99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), and Grant. The

language at issue in those cases was significantly more directory than anything that can

be found here.

       Zornes involved prosecutions for possession of cannabis under the Uniform

Narcotic Drug Act. 78 Wn.2d at 10. While the appeals were pending in the Washington

Supreme Court, the legislature added a proviso to the Narcotic Drug Act stating that

"narcotic drugs shall not include cannabis and the provisions of this chapter shall not ever

be applicable to any form of cannabis." ld. at 11. The amendment also directed the

board of pharmacy to reclassify the drug as a dangerous drug and provided that cannabis

"shall not be considered a narcotic drug and accordingly not subject to the provisions of

chapter 69.33 RCW as now law or hereafter amended." ld. The plurality) opinion (four

justices) concluded that the words "not ever" were critical and required reading the

amendment as applying to pending cases. ld. at 13-14. The concurring opinion of Justice

Hale (two justices) concluded that "the imprecise phraseology of the proviso" indicated




       I   Two justices concurred only in the result~ eight justice ruled on the case.

                                                2

No. 32282-3-III
State v. Rose


the intent to reduce the penalty retroactively; that opinion would have remanded for a

new trial under the dangerous drug act. Id. at 33.

       The decision in Grant is a bit closer procedurally to what occurred in this case.

There two passengers in a vehicle were charged with being drunk in public on August 31,

1974, four months before the repeal of that statute took effect. 89 Wn.2d at 680,682.

The case was tried in the justice court in 1974 and both passengers were convicted. They

appealed to superior court and their trial de novo was conducted in May 1975, several

months after the statute's repeal. The Uniform Alcoholism and Intoxication Treatment

Act, ch. 70.96A RCW, took effect in between the two trials. Id. at 682. The new statute

provided that "It is the policy of this state that alcoholics and intoxicated persons may not

be SUbjected to criminal prosecution solely because of their consumption of alcoholic

beverages but rather should be afforded a continuum of treatment." Id. One ofthe two

defendants was convicted of public intoxication in superior court and appealed to this

court, which certified the case to the Washington Supreme Court. Id. at 680-81. That

body concluded that the "may not be subjected to criminal prosecution" language was

"an express declaration of a legislative intention" that "no person shall go to trial on such

a charge after the effective date of the act." Id. at 684. The court also noted that the

remedial nature of the new legislation required liberal construction in order to effectuate

its purpose. Id. at 685.




                                              3

No. 32282-3-III
State v. Rose


       While both of those statutes contained clear language negating continued

prosecutions ("not ever" and "may not be subjected to criminal prosecution"), Initiative

502 (1-502) had no similar language. As the trial judge, the Honorable James Hurson,

aptly noted, "a 'new approach' does not express an intent for retroactive application."

Clerk's Papers at 13. The majority focuses on the "stop treating adult marijuana use as a

crime" language, although that is no more persuasive. While "stop treating" suggests an

end to the old approach in favor of a new one, it does not speak to what is to be done with

pending cases.

       I agree with the majority that the "intent" section of the initiative must be read in

context with the whole of 1-502.2 The language as a whole suggests the initiative is not

retroactive. As the majority notes, 1-502 did not eliminate the crime of possession of

marijuana. Instead, it exempted from the reach of the statute possession by adults over

the age of21 who controlled less than an ounce of the substance. LAWS OF 2013, ch. 3,

§§ 15,20. In other words, those under age 21 still cannot possess marijuana and those



        2 Curiously, the majority also cites to the voter's pamphlet in support of its
argument. While a voter pamphlet can show voter intent as an aid in construing legislation,
it has no play in this circumstance. RCW 10.01.040 requires that an expression of intent be
found in the amendatory/repealing statute itself, not in associated legislative history
materials. If the intent is not expressed in the statute, the history materials cannot provide
it. Compare, Wash. CitizensActionv. State, 162 Wn.2d 142, 155, 171 PJd 486 (2007)
(voter's pamphlet materials could not cure initiative's textual violation of constitution).
Nonetheless, since the cited voting pamphlet material is just a recitation of the intent
section of the initiative, it adds nothing that is not already in the legislation.

                                              4

No. 32282-3-111
State v. Rose


over age 21 can possess only up to one ounce without running afoul of the law. While

this is a different approach for the law in the case of those over 21, it is not a repeal of the

statute nor even a change of law for those under 21 years of age or those over 21 who

possess large quantities. It is a very far cry from "not ever" prosecuting cannabis under

the Narcotic Drug Act or stating that intoxicated persons "may not be subject to criminal

prosecution" under RCW 70.96A.

       The language of the initiative provides that some people may not be prosecuted if

they obey the law. That simply is nowhere near strong enough language to overcome the

"presumption" of the savings clause. Instead, the savings statute applies to preserve this

pending prosecution, as that statute has long done. E.g., State v. Ames, 47 Wash. 328,

332, 92 P. 137 (1907) (piloting without license prosecution still valid despite repeal of

crime during appeal); State v. Walker, 7 Wn. App. 878, 881-882, 503 P.2d 128 (1972),

rev'd in part on other grounds, 82 Wn.2d 851, 514 P.2d 919 (1973) (repeal of drug

statute five days after crime and one month before charges filed did not prevent

prosecution). 3 If the repeal of a statute is insufficient evidence of intent to overcome the

savings statute, most certainly a mere amendment preserving the offense but limiting its

application also is not sufficient evidence to overcome the savings statute.




       3This aspect of the Court of Appeals decision in Walker was cited with approval
in Grant, 89 Wn.2d at 684.

                                               5
No. 32282-3-III
State v. Rose


       I-502 did not repeal the marijuana possession statute even while it restricted its

application to those over age 21. There is no stated intent to apply those restrictions to

pending cases. Accordingly, the savings statute applies and this prosecution was not

impeded. Mr. Rose agrees that he violated the terms of his deferral and that it was proper

to revoke it. His conviction, therefore should be affirmed.

       I respectfully dissent.




                                                         Kors~ 





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