State v. Zack

413 P.3d 65

STATE of Washington, Respondent,

v.Donald J. ZACK, Appellant.

No. 34926-8-III

Court of Appeals of Washington, Division 3.

Filed March 8, 2018

Lise Ellner, Attorney at Law, PO Box 2711, Vashon, WA, 98070-2711, Skylar Texas Brett, Law Office of Skylar Brett, PO Box 18084, Seattle, WA, 98118-0084, for Appellant.

Joseph Anthony Brusic, Yakima County Prosecutor's Office, 128 N 2nd St. Rm. 329, Yakima, WA, 98901-2621, David Brian Trefry, Yakima County Prosecutors Office, PO Box 4846, Spokane, WA, 99220-0846, Fronda Colleen Woods, Washington Attorney General Licensing and Administrative Law Division, 1125 Washington St. Se, PO Box 40110, Olympia, WA, 98504-0110, for Respondent.

OPINION PUBLISHED IN PART

Korsmo, J.

¶ 1 Donald Zack appeals his conviction for third degree assault of a law enforcement officer, contending that the State of Washington did not retain jurisdiction to prosecute an Indian for any offenses committed within the boundaries of the Yakama Reservation. Interpreting the governor's retrocession proclamation as he intended it, we conclude that the State retained jurisdiction to prosecute Mr. Zack for an offense occurring on deeded land and affirm the conviction.

FACTS

¶ 2 The salient facts are largely historic and will be discussed shortly. As to the facts of this incident, few are relevant to the analysis. Mr. Zack, who lives on the Yakama Reservation but is not an enrolled member of the tribe, was booked into the Toppenish City Jail. A jail officer then took him to the Toppenish City Hospital, property located on deeded (fee) land within the boundaries of the reservation, for treatment. While at the hospital, Mr. Zack assaulted the officer. The officer is not an Indian; Mr. Zack asserts that he is an Indian, although he is not an enrolled member of any tribe.

¶ 3 In general terms, Washington responded to Public Law 280 by asserting civil and criminal jurisdiction over Indians acting on deeded or fee lands, but it declined to assert jurisdiction over Indians while on tribal or trust land.¹ RCW 37.12.010. The history of Washington's assertion of jurisdiction over the Yakama Reservation is discussed in Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 465-76, 99 S.Ct. 740, 58 L.Ed. 2d 740 (1979).² Subsequently, Congress acted to encourage states to withdraw some of their assertions of authority in favor of tribal authority. 25 U.S.C. § 1323 (1968).

¶ 4 Washington responded by passing legislation authorizing the Governor, upon the request of a tribe, to enter into negotiations with any tribe desiring to assume jurisdiction from Washington State. RCW 37.12.160. Governor Jay Inslee, after negotiations with the Yakama Nation, issued Proclamation 14-01 on January 17, 2014.³ The proclamation returned complete civil and criminal jurisdiction to the tribe in four specific subject areas, returned some civil and criminal jurisdiction arising from the operation of motor vehicles on public thoroughfares, and noted some subject areas in which no changes were being made. With respect to the question of criminal jurisdiction, the proclamation states in paragraph 3:

3. Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, criminal jurisdiction over all offenses not addressed by Paragraphs 1 and 2. The State retains jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.

(emphasis added). See Appendix A at 2.

¶ 5 In his formal conveyance of the proclamation to the Assistant Secretary of Indian Affairs, Governor Inslee wrote a clarification to assure that the underscored language was understood to mean that the State was retaining jurisdiction in criminal cases where either the defendant or the victim was not an Indian. See Appendix Bat 2. In accepting the State's retrocession of jurisdiction, the Department of Interior accepted only the proclamation and not the interpretation placed on it by the Governor. See Appendix C at 5. In the view of the Assistant Secretary, the proclamation was unambiguous and did not need interpretation, but that the courts would resolve the matter if needed. Id.

¶ 6 The State filed a charge of third degree assault. Mr. Zack moved to dismiss the prosecution for lack of jurisdiction, alleging that he was an Indian and that under the terms of the proclamation, the State could not act against him because it had retained jurisdiction only of criminal matters that involved both a non-Indian defendant and a non-Indian victim. Evidence of Mr. Zack's Indian heritage was presented and argued to the trial court, but the judge made no determination of that status.⁴

¶ 7 Instead, the court interpreted the proclamation to mean that the State retained jurisdiction if either the defendant or the victim was a non-Indian. The motion to dismiss was denied. Mr. Zack then stipulated to admission of the police reports and was convicted as charged at a bench trial. He timely appealed to this court.

ANALYSIS

¶ 8 This appeal presents two issues. In the published portion of this opinion, we address the interpretation of the retrocession proclamation. In the unpublished portion, we address Mr. Zack's contention that the evidence was insufficient to support the conviction.

Retrocession Proclamation

¶ 9 The jurisdiction issue turns on the meaning of the Governor's proclamation, with the dispositive question being the meaning of the word "and." In context, the word "and" is used in a list and should be read in the disjunctive; to do otherwise would render the proclamation internally inconsistent and nonsensical. Thus, we agree with the Governor that the meaning of the word "and" in this instance is "and/or."

¶ 10 Whether a state court has jurisdiction over crimes committed on reservation land is a question of law subject to de novo review. State v. Squally, 132 Wash.2d 333, 340, 937 P.2d 1069 (1997). We have been unable to find clear Washington authority addressing construction of a gubernatorial proclamation.⁵ Since this particular proclamation, like many before it, flows from a statutory grant of authority to enter into negotiations upon the request of a tribe and to return jurisdiction to the tribe when agreeable, we deem it appropriate to treat the proclamation as if it were legislative in origin.⁶

¶ 11 When addressing a question of pure statutory interpretation or of the meaning of the constitution, an appellate court also engages in de novo review. State v. Bradshaw, 152 Wash.2d 528, 531, 98 P.3d 1190 (2004).⁷ The goal of statutory interpretation "is to discern and implement" legislative intent.

Lowy v. PeaceHealth, 174 Wash.2d 769, 779, 280 P.3d 1078 (2012). In some circumstances, "legislative intent" may also include the Governor's intent: "Where the Governor has vetoed part of a statute, the Governor has acted as part of the Legislature and we consider gubernatorial intent as well." In re Marriage of Maples, 78 Wash.App. 696, 701-02, 899 P.2d 1 (1995) (citing State ex rel. Royal v. Yakima County Comm'rs, 123 Wash.2d 451, 462-63, 869 P.2d 56 (1994) ). Accord State v. Reis, 183 Wash.2d 197, 212-13, 351 P.3d 127 (2015) ; Hallin v. Trent, 94 Wash.2d 671, 677, 619 P.2d 357 (1980) ; Shelton Hotel Co. v. Bates, 4 Wash.2d 498, 506, 104 P.2d 478 (1940). In the circumstance of a gubernatorial proclamation that carries out a legislative grant of authority, we likewise consider it appropriate to treat the Governor's express statement of intent as a species of "legislative intent" for the purpose of construing the Governor's meaning.⁸

¶ 12 A court begins its inquiry into determination of intent by looking at the plain meaning of the statute as expressed through the words themselves. Tesoro Ref. & Mktg. Co. v. Dep't of Revenue, 164 Wash.2d 310, 317, 190 P.3d 28 (2008). If the statute's meaning is plain on its face, the court applies the plain meaning. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007).⁹ A provision is ambiguous if it is reasonably subject to multiple interpretations. State v. Engel, 166 Wash.2d 572, 579, 210 P.3d 1007 (2009). Only if the language is ambiguous does the court look to aids of construction, such as legislative history.

Armendariz, at 110-11, 156 P.3d 201. When interpretation is necessary, the legislation "must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous." Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996).

¶ 13 Initially, we do conclude that the challenged language of paragraph three is potentially ambiguous. Although the word "and" typically is used in the conjunctive sense of joining two or more items, it need not be so applied:

Where the plain language and intent of the statute so indicate, "[t]he disjunctive 'or' and conjunctive 'and' may be interpreted as substitutes." Mount Spokane Skiing Corp. v. Spokane County, 86 Wn. App. 165, 174, 936 P.2d 1148 (1997) ; see also CLEAN v. City of Spokane, 133 Wn.2d 455, 473-74, 947 P.2d 1169 (1997) ; Bullseye Distrib. LLC v. State Gambling Comm'n, 127 Wn. App. 231, 238-40, 110 P.3d 1162 (2005).

State v. McDonald, 183 Wash.App. 272, 278, 333 P.3d 451 (2014). This long has been a rule of construction. State v. Tiffany, 44 Wash. 602, 604, 87 P. 932 (1906) ("No doubt or is sometimes construed to mean and, and vice versa, in statutes, wills, and contracts."). There simply are times where the meaning of the word "and" is unclear and Mr. Zack's argument convinces us this is one of those occasions.¹⁰

¶ 14 Here, it is appropriate to treat "and" as "or" in order to avoid rendering a portion of the proclamation meaningless. After noting the return of jurisdiction in paragraphs one and two, the proclamation states that all other matters of criminal jurisdiction are returned "in part," but that the State was retaining "criminal offenses involving non-Indian defendants and non-Indian victims." Appendix A at 2. Mr. Zack's construction of...