     FII-E
      IN CLERKS OFFICE
                                                 this opinion Was filed for record
tijpieE coun;amE OF VMSHMOTCN
                                               at K'OOdM^ On cSiSfOT3^ PQJ2
I DATEMLJJLMft
'^rtuy\ lAM/iAi .
       CHIEF JUSTKSE
                                                      SUSAM L. CARLSON
                                                    SUPREME COURT CLERK




      IN THE SUPREME COURT OF THE STATE OF WASHINGTON



  SOUTHWICK,INC., a Washington
  corporation,                                         No. 95237-0


                         Petitioner,

                                                       En Banc


  WASHINGTON STATE,AND ITS
  DEPARTMENT OF LICENSING
  BUSINESS AND PROFESSIONS
  DIVISION; WASHE^GTON STATE
  FUNERAL AND CEMETERY BOARD,

                         Respondents.
                                                       Filed    SEP 1 3 2018


          JOHNSON,J.—This case challenges a fine imposed on a cemetery for

  relocating cremains without giving prior notification of its actions to next of kin.

  This case looks at ROW 68.50.140(4) and what it means to act "without authority

  oflaw" under that statutory section. It is a class C felony to remove "human

  remains from a place ofinterment, without authority oflaw." RCW 68.50.140(4).

  Also, RCW 68.50.220 allows cemeteries to move remains around within a
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd.,Flo. 95237-0



cemetery, but they must first notify next of kin oftheir actions. Southwick Inc., a

cemetery owner and operator, disinterred 37 sets of cremains(human cremated

remains) without first notifying next of kin of its actions. Cemeteries are statutorily

authorized to make their own rules concerning their day-to-day operations under

RCW 68.20.060. Southwick claims it was acting under its own rules in disinterring

the cremains without notice to family members, so it was acting with "authority of

law." Because Southwick's rules cannot supersede state statutes, we affirm the

Court of Appeals and hold Southwick was not acting with "authority oflaw" when

it disinterred the cremains and thus violated RCW 68.50.140(4). Additionally, we

hold that Southwick also violated RCW 68.50.220 for failing to notify next of kin

before disinterring the cremains.

                      FACTS AND PROCEDURAL HISTORY


       Forest Cemetery, established in 1857, was operated for many years by the

Forest Cemetery Association. In 1947, the association granted the city of Olympia

(City) a waterline easement across the property. The City installed a large

waterline in the easement that provided the City with its main water supply.

       By the 1980s, the Forest Cemetery Association had disbanded and the

cemetery fell into disrepair. Southwick purchased Forest Funeral Home and

Cemetery and took over the cemetery operations. Southwick met with the

Washington State Funeral and Cemetery Board (Board)and agreed to honor all the
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0



existing contracts entered into by the prior owner. It had no knowledge ofthe

City's easement on the property.

       Pursuant to RCW 68.20.060 and 68.24.110, Southwick adopted rules and

regulations for its day-to-day operations. Southwick's rule 10(j) states:

              The Corporation reserves the right to correct errors made by it
       in making interments, disinterments or removals .... In the event the
       error shall involve the interment ofthe remains of any person in such
       property, the Corporation reserves and shall have the right to remove
       and reinter the remains in the property conveyed in lieu thereof.

Admin. Record(AR)at 86, 112. At some point, Southwick created the Devotion

Urn Garden in an area immediately adjacent to a large monument, constructed by

the cemetery's previous owner. Southwick entered into contracts for cremains to

be buried in small plots in this urn garden.

       On August 25, 2011, the City advised Southwick of its waterline easement

that ran through the cemetery and requested Southwick remove any obstructions in

the easement area. After the City performed a survey, Southwick realized it had

placed the urn garden in the easement. Southwick then moved the um garden about

nine feet to relocate it outside the easement area. The garden and relationship of

the plots within retained the same alignment.

       A granddaughter oftwo people whose cremains had been buried in the um

garden filed a complaint that Southwick had moved the cremains without

providing advance notice oftheir relocation. On August 26, 2014,the Department
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd.,Flo. 95237-0



of Licensing (Department)' issued a statement of charges against Southwick,

alleging Southwick had violated RCW 68.24.060,^ 68.50.200,^ and 68.50.220.

Only the last alleged violation is relevant to this case as it stands before us. RCW

68.50.220 provides:

       RCW 68.50.200 and 68.50.210 do not apply to or prohibit the removal
       of any human remains from one plot to another in the same cemetery
       or the removal of[human] remains by a cemetery authority from a
       plot for which the purchase price is past due and unpaid, to some other
       suitable place; nor do they apply to the disinterment of human remains
       upon order of court or coroner. However, a cemetery authority shall
       provide notification to the person cited in RCW 68.50.200 before
       moving human remains.

(Alteration in original.)

       Both parties moved for summary judgment. On October 29, 2015, a

presiding officer ofthe Board held that Southwick had violated RCW

68.50.140(1),^^ which provides,"Every person who shall remove human remains.



      'The Department issued its statement of eharges through the Board, which is its relevant
disciplinary authority under chapter 18.235 RCW.See RCW 18.235.005,.020(2)(b)(iv); RCW
68.05.430.


       ^ This violation is not before us.

       ^ The Department later amended its statement of charges, withdrawing its alleged
violation of this statute and adding a violation of RCW 18.235.130(8) for unprofessional
conduct.


          Although this is a criminal statute, neither ofthe parties argued for application ofthe
rule of lenity, and we decline to do so. The Board has authority to discipline cemeteries that
violate any provision of chapter 68.50 RCW.RCW 68.05.090,.173. Applying the rule of lenity
would undermine the purpose of the Board's authority.
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0



or any part thereof, from a grave, vault, or other place where the same has been

buried ... without authority of law ... is guilty of a class C felony." The

Department had not alleged a violation ofthat statute. The presiding officer also

found Southwick had committed unprofessional conduct under RCW

18.235.130(8) due to its violation of RCW 68.50.140.

       Southwick filed a motion for reconsideration by the Board ofthe presiding

officer's summary judgment order alleging a due process violation, which is not

before us,^ and arguing that it had not violated RCW 68.50.140 because it was not

acting without "authority of law."

       After a hearing on Southwick's motion for reconsideration, the Board

entered a final order affirming the summary judgment order, holding Southwick

had violated RCW 68.50.140 and RCW 68.24.060 and thus engaged in

unprofessional conduct under RCW 18.235.130(8). It imposed a fine of$7,500, as

well as a requirement to attempt notification of next of kin and placement of notice

in the local newspaper for three days.

       Southwick petitioned Thurston County Superior Court for review of agency

action under the Administrative Procedure Act(A?A), chapter 34.05 RCW,

alleging that the Board had misapplied RCW 68.50.140 and 68.24.060 and that its


       ^ As Southwick's due process claim is not before us, its resolution in the lower courts is
not discussed further.
Southwick, Inc. v. Wash. State Funeral & Cemetery    95237-0



ruling was not supported by substantial evidence. RCW 34.05.570(3)(d),(e). The

superior court affirmed the Board's final order. The Court of Appeals, Division

Two, also affirmed the RCW 68.50.140 violation, holding that Southwick's

internal rules and regulations did not provide "authority of law" for purposes of

RCW 68.50.140. Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., 200 Wn.

App. 890, 893,403 P.3d 934(2017). The court reversed the Board's finding of a

RCW 68.24.060 violation and remanded to the Board with instructions to

reconsider appropriate discipline of Southwick for its violations.

       Southwick appealed both the due process and the "authority oflaw" issues

to this court. We granted review of only the "authority oflaw" issue. Southwick,

Inc. V. Wash. State Funeral & Cemetery Bd., 190 Wn.2d 1001, 412 P.3d 1260

(2018).

                                          ISSUE


      Whether Southwick was acting with "authority oflaw" when it moved the
cremains in response to the City's request without notifying next of kin.


                                       ANALYSIS


       Our review ofthe Board's final order is governed by the APA.RCW

34.05.570. As relevant to this case, we may reverse the Board's order if it is based

on an error oflaw or if it is unsupported by substantial evidence. RCW

34.05.570(3)(d),(e).
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd,No. 95237-0



       We review issues of statutory interpretation and an agency's conclusions of

law de novo. Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003(2014)(citing

Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d 4(2002));

Ames V. Dep't ofHealth, Med. Quality Assur. Comm 'n, 166 Wn.2d 255, 260, 208

P.3d 549(2009)(citing Kellum v. Dep't ofRet. Sys., 61 Wn. App. 288, 291, 810

P.2d 523 (1991)). However, we give substantial weight to an agency's

interpretation ofthe law it administers, especially when the issue falls within the

agency's expertise. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d

1062(1991)(citing St. Francis Extended Health Care v. Dep't ofSoc. & Health

Servs., 115 Wn.2d 690, 695, 801 P.2d 212(1990)). In this case, the Board is

charged with administering the statutes in chapter 68.50 RCW.RCW 68.05.090.

Thus, the issue in this case is within its expertise, and we accord its interpretation

substantial weight.

       RCW 68.50.140(4) provides,"Every person who removes, disinters, or

mutilates human remains from a place of interment, without authority oflaw, is

guilty of a class C felony."^ RCW 18.235.130(8) makes it unprofessional conduct

to violate any provision of chapter 68.50 RCW,and RCW 18.235.110(l)(h)




       ^ The Department asserts that "person," as used in the statute, includes corporations;
otherwise, it would have unintended consequences throughout chapter 68.50 RCW.Southwick
does not disagree.
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd,No. 95237-0



empowers the Board to impose civil penalties, including monetary penalties up to

$5,000 per violation.

       Chapter 68.50 ROW provides some exceptions and defenses(or

authorization) to this general prohibition on disinterring human remains. Remains

may be disinterred with a surviving family member's consent or, if a relative's

consent cannot be obtained, by court order. RCW 68.50.200. These requirements

do not apply when a cemeteiy authority moves remains within a cemetery, but"a

cemetery authority shall provide notification to the [next of kin] before moving

human remains." RCW 68.50.220. The basis for the statutory violations in this

case is not giving statutorily required notification to next of kin before disinterring

the cremains. Under RCW 68.50.140(4) and 68.50.220, a violation of.140(4) may

also be a violation of.220; the lack of prior notice is common to both. Conversely,

notice by a cemetery before disinterment in accordance with .220 is a defense to a

violation of.140(4).

       Southwick argues it acted pursuant to its own rule 10(j) when it moved the

cremains to correct the error of interment within the easement area.^ RCW




     '   Southwick claims the Board never eonsidered its argument that it had authority oflaw
beeause it was acting pursuant to its own rules, but the summary judgment order includes an
explicit finding that Southwick's statutory violations "cannot be overridden by a rule adopted by
[Southwick] on the Correction of Errors." AR at 283. The presiding officer reasoned that
Southwick's rule was a limitation of liability elause and applied to eontraet enforcement, but this
action was for unprofessional eonduet rather than liability, so Southwick's rule did not apply.

                                                 8
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0




68.20.060 empowers cemetery authorities to "make ... and enforce rules and

regulations for the use, care, control, management, restriction and protection of all

or any part of its cemetery." RCW 68.56.060 gives cemetery authorities "the

authority of a police officer for the purpose of.. . enforcing the rules and

regulations ofthe cemetery association, the laws of the state, and the ordinances of

the city or county, within the cemetery over which he or she has charge." RCW

68.24.110 authorizes cemeteries to "sell and convey plots or rights ofinterment

subject to the rules in effect or thereafter adopted by the cemetery authority."

Given this statutory authority to create, implement, and enforce its own operating

rules, Southwick argues that it was acting with "authority oflaw" when it

disinterred the cremains pursuant to its rules and thus did not violate RCW

68.50.140(4).

       Southwick relies on language from State v. Gunwall, 106 Wn.2d 54, 720

P.2d 808(1986)for its definition of"authority of law." In that case, we defined

"authority oflaw" as including any "authority granted by a valid . . . statute, the

common law or a rule ofthis court." Gunwall, 106 Wn.2d at 68-69. This definition

does not help Southwick for two reasons. First, Southwick's operating rules are not

statutes, part of the common law, or a rule of the court. Therefore, per the Gunwall


The Board later incorporated the presiding officer's conclusions of law into its final order. There
is nothing to suggest the Board did not adequately consider Southwick's argument.
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0



language, Southwick's rules are not "authority of law." Southwick argues that it

sold interment rights pursuant to contracts that incorporated these rules, which it

argues are common law contract rights. This argument strains to place its rules

within the Gunwall language, but Southwick, simply stated, cannot contract to

evade statutory requirements. Parties may not contract around existing state law,

and Southwick's argument that its rules establish authority oflaw fails.

       Second, Gunwall defines the "authority of law" required by article I, section

7 ofthe Washington Constitution as it relates to search and seizure law.® By

contrast, the "authority oflaw" in this case is provided by the specific statutes

establishing exceptions to chapter 68.50 RCW's general prohibition on

disinterment. Under the statutory exceptions, remains may be disinterred with the

consent of a specified family member or, if familial consent cannot be obtained, by

superior court order. RCW 68.50.200. Another exception is that cemeteries may

move remains from one plot to another without consent, but they must notify next

of kin before doing so. RCW 68.50.220. These statutes therefore establish the

"authority oflaw" to disinter human remains within the statutory framework, and

prior notification is the basic rule to which the exceptions apply.




       ® "No person shall be disturbed in his private affairs, or his home invaded, without
authority of law." Wash. Const, art. I, § 7.


                                               10
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0



       Southwick offers no case law supporting its argument that its rule making

authority includes the authority to make rules that conflict with state statutes. The

Department, on the other hand, cites numerous authorities holding that legislatively

delegated rule making authority does not permit an agency, municipality, or

corporation to make rules that conflict with existing state law. RCW

23B.03.020(2)(c)(corporations may not adopt bylaws inconsistent with state law);

Arnold V. City ofSeattle, 185 Wn.2d 510, 528, 374 P.3d 111 (2016)('"A local

regulation conflicts with state law where it permits what state law forbids or

forbids what state law permits.'"(quoting State v. Kirwin, 165 Wn.2d 818, 825,

203 P.3d 1044 (2009))); Bostain v. Food Express, Inc., 159 Wn.2d 700, 716, 153

P.3d 846(2007)("deference to an agency's interpretation is never appropriate

when the agency's interpretation conflicts with a statutory mandate"); Edelman v.

State ex rel. Pub. Disclosure Comm'n, 152 Wn.2d 584, 591,99 P.3d 386(2004)

("An agency may not promulgate a rule that amends or changes a legislative

enactment."(citing State ex rel. Evergreen Freedom Found, v. Wash. Educ. Ass'n,

140 Wn.2d 615, 634,999 P.2d 602(2000))); Brown v. City ofYakima, 116 Wn.2d

556, 561, 807 P.2d 353(1991)(an "ordinance may also violate Const, art. 11, § 11

if it directly and irreconcilably conflicts with the statute"(citing Kennedy v. City of

Seattle, 94 Wn.2d 376, 383-84, 617 P.2d 713 (1980))). We agree.




                                            11
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd,No. 95237-0



        Southwick argues that the Court of Appeals' interpretation ofRCW

68.50.140 threatens to undermine the efficacy of cemetery-issued rules across the

state.^ It also argues that the court's interpretation "emasculates"—or, in our

words,"disempowers"—^the trifecta of statutes allowing cemeteries to create,

implement, and enforce these rules. However,the opposite seems true—

Southwick's position undermines the efficacy of Washington's disinterment

statutes. Southwick argues the legislature has granted cemeteries authority

independent of other statutes, but this is not so. Through RCW 68.20.060, the

legislature permits cemeteries to adopt and enforce internal rules and regulations

consistent with, not independent of, state law. Importantly, nowhere under the

statutory scheme is the express notice requirement established under RCW

68.50.220 excused.


        As the Department points out, if cemetery rules superseded state statutes,

cemeteries could adopt rules exempting themselves from every statute governing

cemetery operations, such as the statute prohibiting cemeteries from refusing to

bury a nonwhite person. RCW 68.50.035. Nothing in RCW 68.20.060 or 68.24.110

acts to relieve cemetery authorities ofthe obligation to comply with state law.




        ^ As the Department points out, Southwick has not shown that any other cemetery is
having similar problems with creating or enforcing cemetery rules that conflict with state
statutes.



                                               12
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd,'No. 95237-0



Under Southwick's interpretation of the statutory framework,RCW 68.50.220

would be meaningless. A statutory scheme establishing and governing disinterment

requirements cannot be interpreted to allow cemeteries to create rules by contract

exempting themselves from complying with those same statutes.

       Southwick also argues that RCW 68.50.140(4) does not apply to its case's

facts. Under the statute, a person is guilty of a class C felony if he or she removes

"human remains from a place of interment, without authority oflaw." "Interment"

is statutorily defined as "the placement of human remains in a cemetery." RCW

68.04.100. Given this definition, Southwick argues that "place of interment" means

a cemetery in general. Therefore, to violate the statute, Southwick would have had

to remove the cremains from the cemetery. We reject this argument. A "place of

interment" is more specific than "interment" and means the particular place

remains are buried, such as a plot within a cemetery.

       RCW 68.50.140(4) must also be read in conjunction with RCW 68.50.220,

which addresses a cemetery's ability to move remains within the boundaries of a

cemetery. Under .220, a cemetery under specific circumstances may not need

permission to disinter and relocate remains within the cemetery. However,the

statute mandates that the cemetery shall provide notice to next of kin before

moving remains within a cemetery. The notice requirement is mandatory and

applies to cemeteries, and Southwick cannot dispute it failed to notify family

                                            13
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., No. 95237-0



members before moving the cremains. Therefore, Southwick was not acting with

the authority oflaw provided by RCW 68.50.220 that would have exempted it

from RCW 68.50.140's general prohibition of disinterring remains.

       We affirm the Court of Appeals and hold that Southwick was not acting with

"authority oflaw" when it disinterred the cremains without giving prior statutory

notification. Because the facts are undisputed, we hold Southwick also violated

RCW 68.50.220 by failing to notify next of kin before relocating the cremains

within the cemetery. RAP 2.5(a); LaMon v. Butler, 112 Wn.2d 193, 200-01, 770

P.2d 1027(1989)("an appellate court can sustain the trial court's judgment upon

any theory established by the pleadings and supported by the proof, even ifthe trial

court did not consider it"). These violations also establish unprofessional conduct

under RCW 18.235.130(8), supporting the decision by the Board. As referenced,

the Court of Appeals vacated one violation and remanded with instructions to

reconsider the appropriate sanction. We affirm the Court of Appeals and remand to




                                             14
Southwick, Inc. v. Wash. State Funeral & Cemetery Bd., Flo. 95237-0


the Board for reconsideration of sanctions in light of our holding.10




WE CONCUR:




     m




          Southwick is not entitled to attorney fees under the Washington Equal Access to
Justice Act, RCW 4.84.340-.350, because it is not the prevailing party.


                                              15
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95237-0
(Gordon McCloud, J., dissenting)




                                        No. 95237-0


      GORDON McCLOUD, J. (dissenting)—The state Department of Licensing

Business and Professions Division (Department) charged Southwick Inc. with

unprofessional conduct for violating ROW 68.50.140(4). ROW 68.50.140(4) is a

criminal statute originally designed to target grave robbers' and it makes removal of

"human remains from a place of interment, without authority of law," a felony.

       Whether ROW 68.50.140(4) covers Southwick's conduct presents a

straightforward question of statutory interpretation. The rules of statutory

interpretation compel us to hold that the plain language ofthis statute—criminalizing

removal of human remains "without authority oflaw," without defining the meaning

of the phrase "without authority of law"—creates confusion in this case. The

confusion centers on whether Southwick's decision move those cremains to comply

with a lawful demand by the city of Olympia(City)to vacate the City's easement—

an easement necessary to protect public health^—should be characterized as moving


      'Laws of 1909, ch. 249, § 239.

       ^ The relocation would allow the City unimpeded access to water pipes that supplied
water to 90 percent of its residents.

                                             1
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

cremains "with" or "without authority of law." Since the statutory language and

context do not answer that question, we must turn to legislative history and the rule

of lenity. Both interpretive aids compel the same conclusion: RCW 68.50.140(4)

cannot be used to make a felony out of Southwick's decision to move cremains a

few feet to a new um garden to let the City access its lawful easement.

       I therefore disagree with the majority's decision to uphold the finding that

Southwick violated this criminal statute. I respectfully dissent.

                                Standard of Review


       The Department alleged that Southwick committed unprofessional conduct by

violating RCW 68.50.140(4). Thus, as the majority acknowledges, the key question

in this case is how to interpret that criminal statute. Majority at 1.

       This is a question of statutory interpretation that we review de novo. State v.

Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015)(citing/« re Post Sentencing

Review ofCharles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998)). While the majority

correctly asserts that we will defer to certain agency decisions in the agency's area

 of expertise, majority at 7,this is not such an area. The interpretation and application

 of criminal felony statutes falls within this court's, not the Department's, expertise.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

                                      Analysis


      I.     The rules of statutory interpretation applicable to this case are plain
             language, context, and other "aids to interpretation," including
             legislative history and the rule of lenity

       We therefore turn directly to our rules ofstatutory interpretation. We start with

the plain language ofthe statute, examined in the context ofthe statutory scheme as

a whole, because that is the "surest indication" of the legislature's intent. Five

Corners Family Farmers v. State, 173 Wn.2d 296, 305, 268 P.3d 892(2011). If the

language ofa statute is plain on its face,then we will give effect to that plain meaning

as an expression oflegislative intent. Dep't ofEcology v. Campbell & Gwinn, LLC,

146 Wn.2d 1, 9-10, 43 P.3d 4(2002)(citing State v. J.M., 144 Wn.2d 472, 480, 28

P.3d 720(2001)).

       But "[i]f, after examining the ordinary meaning of the statute's language and

its context in the statutory scheme, more than one reasonable interpretation exists,

we treat the statute as ambiguous." Conover, 183 Wn.2d at 711-12 (citing State v.

Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 282 (2005)). At that point, we turn to

other "aids to construction." Campbell & Gwinn, 146 Wn.2d at 12(citing Cockle v.

Dep't ofLabor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001); Timberline Air

Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 312, 844 P.2d 920

(1994)).
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

      Sometimes that "aid" is "legislative history." Id. Sometimes that "aid" is the

rule of lenity. Conover, 183 Wn.2d at 712 (ambiguities in criminal statutes are

resolved against the government and in favor of the defendant (citing Jacobs, 154

Wn.2dat601)).

      The majority declines to apply the rule of lenity on the ground that neither

party raised it. Majority at 4 n.4. This is incorrect. Southwick squarely raised and

briefed the issue in its reply in the Court of Appeals. Appellant Southwick's Reply

Br. at 21-23.


      The majority also declines to apply the rule of lenity because it "would

undermine the purpose of the [Washington State Funeral and Cemetery] Board's

authority." Majority at 4 n.4. This is also an incorrect reason for declining to apply

the rule oflenity. When the rule oflenity applies, it always works against the asserted

authority of the government—^that is the point. It is a check on government power

when the basis for government's assertion of that power is questionable or

ambiguous. As the Supreme Court has explained, it is a rule that in a criminal case,

fairness requires that'"a fair warning ... be given to the world in language that the

common world will understand, of what the law intends to do if a certain line is

passed.'" United States v. Bass, 404 U.S. 336, 348,92 S. Ct. 515, 30 L. Ed. 2d 488

(1971)(quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed.

816 (1931)). The government cannot criminalize and stigmatize a person's acts
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95231-Q
(Gordon McCloud, J., dissenting)

unless it does so in clear and unmistakable language and with fair warning. That is

not a reason to avoid the rule of lenity: that is the very reason for its existence.

      Finally, it may be that the majority wants to avoid this regularly applied rule

of statutory interpretation because we are interpreting this criminal statute in the

context of a licensing decision rather than in the context of a criminal trial. But we

cannot interpret a single criminal statute one way when it is used as a basis for felony

conviction and another way when that same criminal statute is used as a basis for

professional discipline or some other civil suit. The same statute, with the same

words, must mean the same thing no matter where those words are read: in a criminal

forum, a quasi-criminal forum, or a civil forum.

      For example, the Washington State Bar Association (WSBA) often bases

disciplinary charges against attorneys on allegations of criminal conduct. In those

cases, the WSBA must prove each element of the crime—^there are no shortcuts

because the criminal statute is being applied in a civil disciplinary context. E.g., In

re Disciplinary Proceeding Against Placide, 190 Wn,2d402,425-26,414P.3d 1124

(2018)(using elements of criminal theft as a basis for attorney discipline); see also

Rozner v. City ofBellevue, 116 Wn.2d 342, 345-47, 804 P.2d 24 (1991)(holding

that in a civil forfeiture action,the State can seize property ifit proves probable cause

to believe the item was used or intended to be used to violate crimes listed in Title

69 RCW). As the United States Supreme Court explained in United States v.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

Thompson/Center Arms Co.,504 U.S. 505,112 S. Ct. 2102,119 L.Ed.2d 308(1992)

(plurality opinion), a civil case in which an arms manufacturer sued for the refund

of a tax imposed under the National Firearms Act(NFA), the NFA statute at issue

could also form the basis for a criminal conviction. For that reason, it was "proper .

.. to apply the rule oflenity and resolve the ambiguity in Thompson/Center's favor."

Id. at 518 (citing Crandon v. United States, 494 U.S. 152, 168, 110 S. Ct. 997, 108

L. Ed. 2d 132(1990); Comm 'r v. Acker, 361 U.S. 87, 91, 80 S. Ct. 144, 4 L. Ed. 2d

127(1959)); id. at 519(Scalia, J., concurring in judgment)(expressly agreeing with

the plurality's application of the rule of lenity).

      Indeed, the Supreme Court has repeatedly confirmed that the "rule of lenity

can apply when a statute with criminal sanctions is applied in a noncriminal context."

Kastenv. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16,131 S. Ct. 1325,

179 L. Ed. 2d 379(2011)(citing Leocal v. Ashcroft, 543 U.S. 1, 11 n.8, 125 S. Ct.

377, 160 L. Ed. 2d 271 (2004)). Consistency of law generally requires that the rule

oflenity be applied regardless of"whether we encounter its application in a criminal

or noncriminal context." Leocal, 543 U.S. at 12 n.8.

      The rule is simple: a criminal statute, like RCW 68.50.140(4), means the same

thing when it is used in a criminal case or a civil case.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95237-0
(Gordon McCloud, J., dissenting)

      II.    Plain language and context do not provide a clear explanation of what
             "without authority of law" covers

       With these rules of statutory interpretation in mind—^plain language, context,

and, if these rules lead to uncertainty, then other interpretive aids such as legislative

history and the rule oflenity—^we turn back to the criminal statute at issue here.

      In this case, the relevant statutory provision is RCW 68.50.140(4). That

subsection, in context ofthe entire statute, states:

      (1)Every person who shall remove human remains, or any part thereof,
      from a grave, vault, or other place where the same has been buried or
      deposited awaiting burial or cremation, without authority of law, with
       intent to sell the same, or for the purpose of securing a reward for its
       return, or for dissection, or from malice or wantonness, is guilty of a
       class C felony.

             (2)Every person who shall purchase or receive, except for burial
       or cremation, human remains or any part thereof, knowing that the same
       has been removed contrary to the foregoing provisions, is guilty of a
       class C felony.

             (3) Every person who shall open a grave or other place of
       interment, temporary or otherwise, or a building where human remains
       are placed, with intent to sell or remove the casket, urn, or of any part
       thereof, or anything attached thereto, or any vestment, or other article
       interred, or intended to be interred with the human remains, is guilty of
       a class C felony.

            (4) Every person who removes, disinters, or mutilates human
       remains jfrom a place of interment, without authority oflaw, is guilty of
       a class C felony.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

RCW 68.50.140(emphasis added). Southwick clearly "remove[d] human remains."

As the majority acknowledges, the only question is whether it did so "without

authority of law."

      Neither the plain language of RCW 68.50.140(4) nor the full statute within

which it resides helps us interpret that phrase in this case. "Authority of law" is not

defined in that statute. In fact, it is not defined anywhere in Title 68 RCW, even

though it appears in two provisions ofthat title: RCW 68.50.140(making it a felony

to disinter human remains "without authority of law") and 68.24.190 (making it a

misdemeanor to establish a roadway through cemeteries "without authority oflaw").

      The parties, of course, seize on the absence of a clear definition within the

statute or the chapter to argue for their own interpretations. Southwick argues that it

acted with "authority of law" when it moved the urn garden because a different

statute in that title grants it police powers to enforce its own rules and regulations

and "the ordinances of the city and county" (remember, Southwick moved the

cremains to comply with the City's assertion of its property right). That statute,

RCW 68.56.060, gives the cemetery

      the authority of a police officer for the purpose of maintaining order,
      enforcing the rules and regulations of the cemetery association, the
      laws of the state, and the ordinances of the city or county, within the
      cemetery over which he or she has charge, and within such radius as
      may be necessary to protect the cemetery property.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

(Emphasis added.) Southwick argues that its own rules specifically reserve to it "the

right to correct errors made by it in making interments, disinterments or removals,"

so it had "the right to remove and reinter the remains in the property" under this

police-powers statute. Appellant Southwick, Inc.'s Pet. for Review at 5-6 (quoting

Admin. Record(AR)at 163). Southwick also asserts that it had "authority of law"

to move the urn garden because the City demanded access to its easement for critical

public health purposes—a demand premised on a lawful property right. Appellant

Southwick's Opening Br. at 15 (citing AR at 163).

      The majority disagrees. In the absence of a resident definition of "without

authority of law," it argues that a different statute requires Southwick to notify the

decedent's next ofkin when his or her cremains are moved, so that other statute—in

a different chapter—negates any "authority oflaw" Southwick might have had under

ROW 68.56.060, even though the former statute makes no reference to the latter

statute. Majority at 8, 13-14 (citing ROW 68.50.220).

      Neither interpretation of RCW 68.50.140(4) is perfect. Southwick's

interpretation does not address the existence of RCW 68.50.220 at all. The

majority's interpretation ignores the fact that the Department could have charged

Southwick with failing to notify next of kin in violation ofRCW 68.50.220—^which

is not a criminal statute and which cross-references RCW 68.50.200 and 68.50.210,

but not RCW 68.50.140(4)—but did not. The Department charged Southwick with
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,l>\o. 95237-0
(Gordon McCloud, J., dissenting)

disinterring cremains "without lawful authority" in violation ofRCW 68.50.140(4).

To reach its result, the majority has to make the interpretive leap that a violation of

RCW 68.50.220 (in one chapter of Title 68 RCW)abrogates the "authority of law"

that RCW 68.56.060(in another chapter ofTitle 68 RCW)gave Southwick to govern

and police its cemetery, so that Southwick now acted without such authority in

violation of criminal statute RCW 68.50.140(4). To repeat, neither interpretation of

the undefined term "without authority of law" is perfect.

       We might then turn to our prior case law to help interpret the phrase "without

authority oflaw" to see ifthat supplies the clarity that Title 68 RCW lacks. See State

V. Smith, 111 Wn.2d 1, 8-11, 759 P.2d 372(1988).

       It does not. In fact, our prior case law shows that this phrase, "without

authority of law," is usually considered ambiguous. In State v. Richmond, for

example, this court found that the crime of willful failure to pay child support

"without lawful excuse" was so vague that it rendered the entire statute "void for

vagueness under [the due process protections of] U.S. Const, amend. 14." 102 Wn.2d

242, 248, 683 P.2d 1093 (1984). The due process clause requires criminal statutes

to be sufficiently specific so that (1) "persons of common understanding" have

notice that the activity is unlawful and (2) criminal convictions are not based on

"arbitrary or ad hoc determinations of criminality." Id. at 243-44. We held that the

phrase "without lawful excuse" violated both protections because "potential

                                           10
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95237-0
(Gordon McCloud, J., dissenting)

defendants may violate the statute with the impression that their excuse [(physical,

vocational or economic incapacity, or emotional illness)] is lawful, and only later

find that it was not." Id. at 247. Moreover, the absence of any definition forced

"[jJudges . . . to decide what constitutes a lawful excuse on a case-by-case basis

according to their personal predilections." Id.

      Similarly, in State v. Hilt, this court voided a statute criminalizing bail

jumping "without lawful excuse" on vagueness grounds because the phrase "without

lawful excuse" was "nowhere defined and predicting its potential application would

be a guess, at best." 99 Wn.2d 452, 455, 662 P.2d 52(1983).

       And in State v. White, this court voided a different statute that criminalized

the refusal to provide "lawfully required" information to a public servant without

"lawful excuse." 97 Wn.2d 92, 100, 640 P.2d 1061 (1982). We held that the phrase

"lawfully required" was too subjective to provide fair notice because it left the

determination of what information a person must provide to the "unfettered

discretion of not only police officers, but virtually any public servant." Id. We also

held that the phrase "lawful excuse" was ambiguous, because it left a citizen to guess

whether his or her claim of privilege against answering would be considered a

"lawful excuse." Id. (citing U.S. CONST, amend. V).

       To be sure, the inherent vagueness of the phrase "lawflil authority" might be

cured by language elsewhere in the statute or even in the common law. In State v.

                                          11
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

Smith, for example, we upheld a criminal harassment statute against a vagueness

challenge, despite its use ofthe phrase "without lawful authority." Ill Wn.2d at 15.

We reasoned that where (as in that case) the criminal activity defined by the statute

has a long common law history and significant statutory background to inform its

meaning, that history and background can cure the inherent indefmiteness in the

phrase "without lawful authority." Id. at 8-11,15; accord State v. Miller, 103 Wn.2d

792, 794-95, 698 P.2d 554 (1985)(using common law to inform the meaning of

assault with intent to resist a "lawful" arrest or detention).

      But Smith took great care to assure that Richmond, Hilt, and White remain

binding precedent where there is an "absence of identifiable sources of law" that

might substantiate or define what constitutes "lawful" behavior. Smith, 111 Wn.2d

at 8; see also State v. Aver, 109 Wn.2d 303, 308, 745 P.2d 479 (1987)

(acknowledging that Richmond,Hilt, and White are still controlling precedent).

      This is just such a case. Here, the crime charged is disinterring cremains by a

cemetery operator pursuant to an order from a municipality without informing next

of kin. Neither the majority nor the State cites to any long-standing common law

history or background suggesting that such actions are unlawful. Thus,the common

law fix announced in Smith and Miller is inapplicable. Instead, the general rule of

Richmond, Hilt, and White—^that undefined phrases like "lawful authority" or

"without lawful authority" are vague and ambiguous—controls.

                                           12
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div.,^o. 95237-0
(Gordon McCloud, J., dissenting)

      In sum, after looking to RCW 68.50.140's plain language, statutory context,

and related cases that might help interpret the critical phrase "without lawful

authority," we find no definite answer. The majority's interpretation is certainly

plausible despite its complications. But Southwick's interpretation is also plausible.

Under Campbell & Gwinn,the statute is ambiguous. 146 Wn.2d at 12. That compels

us to look to other "aids to construction." Id.

      111.    Other "aids to construction" bar application of this felony statute to
              Southwick's conduct


       Our case law has been inconsistent on whether the next"aid" we turn to when

interpreting a criminal statute is legislative history or the rule oflenity. See Conover,

183 Wn.2d at 711-12(applying the rule oflenity after finding the statute ambiguous

(citing Jacobs, 154 Wn.2d at 600-01)); State v. Evans, 111 Wn.2d 186, 192-93, 298

P.3d 724 (2013)(using legislative history to resolve an ambiguity before applying

the rule of lenity).

      In this case, though, it does not matter; both point to the same result.

       Regarding legislative history, the crime of disinterring the dead now codified

at RCW 68.50.140 was originally intended to punish grave robbing. It was titled

"Opening Grave—Stealing Body—^Receiving Same."LAWS OF 1909,ch. 249,§ 239.

This history suggests that acquiescing in the City's lawful demand that Southwick




                                           13
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95237-0
(Gordon McCloud, J., dissenting)

vacate the City's easement so the City could assure public health was not the type of

grave robbing that the legislature intended to target with this statute.

      The rule of lenity compels the same conclusion. It is a rule that ambiguous

criminal statutes must be construed strictly against the government. This also weighs

in favor of interpreting the statutory phrase "without authority of law" against the

government and in favor of Southwick's position that using its delegated police

powers to accommodate the City's lawful demand for access to its property was not

without authority of law.

                                     Conclusion


      After examining the statute's plain language and context, RCW

68.50.140(4)'s phrase "without authority of law" is ambiguous as applied to

Southwick's actions. We must resolve that phrase's ambiguity against the

government. Southwick's actions cannot, therefore, be deemed to have been taken

"without authority of law."

      I respectfully dissent.




                                          14
Southwick, Inc. v. Dep't ofLicensing Bus. &Prof'lDiv., No. 95231
(Gordon McCloud, J., dissenting)




                                                     ^cua huA^i. a
                                                                   f
                                                (Qovizk kz




                                         15
