Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 52096-2-I
Title of Case: State of Washington, Appellant v. Jason E.
Masangkay, Respondent
File Date: 06/07/2004
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-8-07492-4
Judgment or order under review
Date filed: 02/28/2003
Judge signing: Hon. Michael S Spearman
JUDGES
------
Authored by H Joseph Coleman
Concurring: Ann Schindler
Susan R. Agid
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Charles Wesley Lind
Attorney at Law
516 3rd Ave Ste W554
Seattle, WA 98104-2362
Counsel for Respondent(s)
Washington Appellate Project
Attorney at Law
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101
Jason Brett Saunders
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 52096-2-I
)
Appellant, ) DIVISION ONE
) v. )
) JASON MASANGKAY, ) Published
D.O.B. 8/10/84, ) )
Respondent. ) FILED:
)
COLEMAN, J. Jason Masangkay pleaded guilty to robbery in the second
degree and was placed in custody at a juvenile detention facility. Less
than three years after his release, he decided to join the Marines. He
requested and was granted a 'certificate of rehabilitation' to reinstate
his right to possess firearms.
We reverse the trial court because RCW 9.41.040(3), which contains the
'certificate of rehabilitation' language Masangkay relies upon, cannot be
reasonably interpreted as authorization for Washington courts to issue
certificates of rehabilitation.
FACTS
After pleading guilty to second degree robbery in juvenile court, 14-
year-old Jason Masangkay was sentenced to several months in custody. As a
result of his conviction, he lost the right to possess firearms. In
December 2002, when he was 18 years old and had been out of custody for
almost three years, Masangkay petitioned the court to grant him a
certificate of rehabilitation under RCW 9.41.040(3), so that he could
regain his right to possess firearms and join the Marines. He presented
evidence that he had made substantial achievements toward becoming a good
student and citizen during his time out of custody.
The trial court initially decided that Washington law did not
authorize it to grant Masangkay's petition, but on reconsideration, it
decided that RCW 9.41.040(3) could be interpreted to permit it to issue
certificates of rehabilitation. The State appealed.
ANALYSIS
This case involves statutory construction, which is reviewed de novo.
Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 515, 910 P.2d 462 (1996).
The fundamental objective is to ascertain and carry out the intent of the
legislature. Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24
(1991). 'Where statutory language is plain and unambiguous, the statute's
meaning must be derived from the wording of the statute itself.' Rozner,
116 Wn.2d at 347. When the legislature's intent is not clear from the face
of the statute, the court may resort to various tools of statutory
construction in determining which interpretation best advances the
legislature's intent. Rozner, 116 Wn.2d at 347.
The question presented is whether the legislature intended RCW
9.41.040(3) to authorize Washington courts to issue a certificate of
rehabilitation to allow a person convicted of certain felony crimes to
regain the right to possess firearms. That statute provides:
Notwithstanding RCW 9.41.047 or any other provisions of law, as used
in this chapter, a person has been "convicted", whether in an adult court
or adjudicated in a juvenile court, at such time as a plea of guilty has
been accepted, or a verdict of guilty has been filed, notwithstanding the
pendency of any future proceedings including but not limited to sentencing
or disposition, post-trial or post-factfinding motions, and appeals.
Conviction includes a dismissal entered after a period of probation,
suspension or deferral of sentence, and also includes equivalent
dispositions by courts in jurisdictions other than Washington state. A
person shall not be precluded from possession of a firearm if the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted or the conviction or disposition has
been the subject of a pardon, annulment, or other equivalent procedure
based on a finding of innocence. Where no record of the court's disposition
of the charges can be found, there shall be a rebuttable presumption that
the person was not convicted of the charge.
RCW 9.41.040(3) (emphasis added). This question was left unanswered by
this court in Nakatani v. State, 109 Wn. App. 622, 36 P.3d 1116 (2001),
which stated in a footnote,
{T}the authority of Washington courts to issue {certificates of
rehabilitation} is not before us in this case. We also express no opinion
regarding Nakatani's right to request an equivalent finding of
rehabilitation in a separate Superior Court proceeding. If Nakatani files
such a petition, the trial court will then be in a position to evaluate
whether and under what circumstances RCW 9.41.040(3) authorizes the court
to issue certificates of rehabilitation or make equivalent findings.
Nakatani, 109 Wn. App. at 628 n.3. While Nakatani did not expressly reject
the trial court's authority to issue certificates of rehabilitation, the
issue is squarely before us now.
Masangkay contends that prior Washington cases have recognized
RCW 9.41.040(3) as authorizing Washington courts to consider such
petitions, but the State disagrees. The State argues that RCW 9.41.040(3)
does not authorize the courts to issue certificates of rehabilitation and
that RCW 9.41.040(4) is the exclusive means for Masangkay to regain his
firearm rights. Under that statute, Masangkay must wait at least five
years following his release from custody to be eligible to regain those
rights.1
Contrary to Masangkay's contention, no Washington case has gone as far
as recognizing that RCW 9.41.040(3) has established a procedure for
Washington courts to issue certificates of rehabilitation. In one case
cited by Masangkay, Morris v. Blaker, 118 Wn.2d 133, 821 P.2d 482 (1992),
the court merely acknowledged that the language of RCW 9.41.040(3) existed.
In another case, Forster v. Pierce County, 99 Wn. App. 168, 172, 991 P.2d
687, review denied, 141 Wn.2d 1010 (2000), a convicted felon unsuccessfully
argued that his receipt of a final discharge restoring civil rights in 1977
constituted a procedure equivalent to a finding of rehabilitation under RCW
9.41.040(3). The petitioner did not argue that the court was authorized to
issue a certificate of rehabilitation, and the court never suggested that
he could have petitioned for one.
In State v. Radan, 143 Wn.2d 323, 329, 21 P.3d 255 (2001), instead of
addressing whether Washington had a certificate of rehabilitation
procedure, the Supreme Court determined whether the 'certificate of
rehabilitation, or other equivalent procedure' language of RCW 9.41.040(3)
could be satisfied by certain Montana procedures. Again, the court
recognized the existence of the certificate of rehabilitation language in
RCW 9.41.040(3), but it did not hold that a procedure to issue certificates
of rehabilitation exists in Washington.
The State makes several persuasive arguments why this court should not
infer from RCW 9.41.040(3) an intention on the part of the legislature to
create a procedure for Washington courts to issue certificates of
rehabilitation. First, the legislature has adopted several statutory
provisions detailing the procedure for reinstating firearm rights
following a conviction or commitment for mental illness, such as RCW
9.41.040(4) and RCW 9.41.047. These provisions contain important criteria
for the courts to apply when reinstating firearm rights. In contrast,
subsection (3) provides courts with no guidance in determining what
constitutes rehabilitation under the statute. Accordingly, courts applying
this provision could potentially reach widely differing conclusions as to
what constitutes rehabilitation.
Second, the absence of criteria for applying subsection (3) makes it
difficult to infer an intention on the legislature's part to create such a
procedure. The legislature has demonstrated its ability to craft statutes
that create express procedures for restoring firearm rights. State v.
Swanson, 116 Wn. App. 67, 65 P.3d 343 (2003). In Swanson, the court
evaluated the various statutes that relate to restoration of firearm and
other civil rights to determine the petitioner's burden of proof and
whether a discretionary or mandatory standard applied to petitions
submitted under RCW 9.41.040(4). Swanson, 116 Wn. App. at 73-75. While we
reject the State's argument that the Swanson court's failure to discuss
subsection (3) can be used to infer that no certificate of rehabilitation
procedure exists, the Swanson decision does demonstrate the importance of
including criteria for deciding when and how to issue certificates of
rehabilitation. The legislature clearly has demonstrated that when it
wants to, it can enact procedures for reinstating firearm rights with
specific criteria. See RCW 9.41.047 (restoration of firearm rights for
persons involuntarily committed for mental treatment) and RCW 9.41.040(4)
(restoration of firearm rights for persons convicted of certain felonies).
When compared with these statutes, the lack of criteria for issuing
certificates of rehabilitation demonstrates that the legislature did not
intend subsection (3) to act as a self-executing statutory authority.
This conclusion is also supported by the observation made in Radan
that the language of subsection (3) was borrowed directly from ER 609(c)
without a corresponding intention to create a substantive procedure. ER
609(c), which is based upon Federal Rules of Evidence 609(c), states:
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been
convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the
subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
Federal Rules of Evidence 609(c) refers to 'certificate of rehabilitation'
in the context of defining the grounds for impeachment based upon a
witness's prior convictions. Certain jurisdictions, such as California and
Mississippi, have statutory provisions authorizing courts to issue
certificates of rehabilitation, and both the state and federal evidentiary
rules appear to acknowledge their existence. Cal. Penal Code sec. 4852.01
(2004); Miss. Code sec. 97-37-5(3) (2004). This does not necessarily mean,
however, that in enacting RCW 9.41.040(3), the legislature intended to
create an express procedure in Washington courts to be used for reinstating
firearm rights. A more reasonable conclusion is that in defining
exceptions to the law prohibiting convicted felons from possessing
firearms, the legislature used the evidentiary rules as a template for
acknowledging the effect of existing procedures, not to create new ones.
Given the source of the certificate of rehabilitation language and the lack
of criteria to make this determination, it does not make sense to read
subsection (3) as an intentional legislative act to create a certificate of
rehabilitation procedure. For the same reasons, we decline to read
subsection (3) as authorizing Washington courts to establish a procedure
equivalent to a certificate of rehabilitation 'based on a finding of
rehabilitation.' RCW 9.41.040(3).
We find less persuasive the State's argument regarding the prefatory
language of RCW 9.41.040(4), 'Notwithstanding any other provisions of this
section.' The State argues that this language requires us to read
subsection (4) separately from subsection (3) as requiring all convicted
felons to wait the required statutory period before petitioning for
reinstatement, regardless of any other statutory provision. The State
claims that its reading comports with the rule of statutory construction
that statutes must be interpreted and construed so that all the language
used is given effect. Davis v. Dept. of Licensing, 137 Wn.2d 957, 963, 977
P.2d 554 (1999). But the State's reading of subsection (3) ignores the
substantive force of that section, particularly the provisions permitting
persons with convictions that are subject to a pardon, annulment, or a
certificate of rehabilitation (issued by a court that is authorized to
issue them) to regain their firearm rights before the requisite waiting
period had expired. Adopting the State's argument would render portions of
subsection (3) meaningless. We therefore conclude that subsections (3) and
(4) should be read separately, but in harmony with each other, so as not to
contradict the clear terms of each.
This was the result reached in Smith v. State, 118 Wn. App. 464, 470,
76 P.3d 769 (2003), the only other Washington case to address the argument
Masangkay makes here. Smith observed that '{a}s currently drafted, there
is no provision in Washington statutes for the issuance of a certificate of
rehabilitation.' Smith, 188 Wn. App. at 471. The question in Smith was
different than the one presented here.2 There, the petitioner was a sex
offender and therefore ineligible for reinstatement under RCW 9.41.040(4)
unless he received a pardon with a specific finding of rehabilitation or
innocence. But as discussed above, we agree with Smith that currently
there is no provision in Washington statutes for issuance of a certificate
of rehabilitation and therefore do not accept Masangkay's argument that
Smith's observation on this matter was erroneous.
Masangkay urges this court in the alternative to adopt the reasoning
of the concurrence in Smith, which asserted that the absence of a
certificate of rehabilitation procedure should not prevent the court from
exercising its general jurisdiction to grant the right to possess a firearm
under the Washington Constitution. Smith, 118 Wn. App. at 470-71. In
addition, Masangkay also argues that when the trial court granted his
petition, it properly exercised its inherent powers to adopt suitable
procedures under RCW 2.28.150.
When jurisdiction is otherwise conferred and no course of proceeding
is specifically pointed out, RCW 2.28.150 authorizes the court to adopt any
suitable process or mode of proceeding that may appear most conformable to
the spirit of the laws. In re Cross, 99 Wn.2d 373, 380, 662 P.2d 828
(1983). We conclude that Cross does not support the exercise of inherent
powers under circumstances such as this. In Cross, an involuntary
outpatient treatment order was revoked without a showing that the detainee
had violated its terms. The statute under which the order was issued
required the court to find a violation before it could revoke or modify
outpatient treatment. Thus, the court concluded that the court lacked
jurisdiction to act and that there existed alternative proceedings
authorizing the State to file a new petition before expiration of the
outpatient treatment. Cross, 99 Wn.2d at 380.
Firearm rights restoration is a matter for which the legislature has
provided the necessary statutory authority. See State v. Breazeale, 144
Wn.2d 829, 840, 31 P.3d 1155 (2001) (holding that statutory authority to
restrict public access to certain records existed and that courts lacked
the inherent power to expunge a criminal record except when necessary to
enforce constitutional guaranties). We decide that the creation of a
certificate of rehabilitation procedure is a matter for the legislature to
perform not the courts.3 As seen in Cross, even if a statute does not
provide for a particular procedure, if alternative procedures exist that
would accomplish the same goal, resort to inherent power is not
appropriate. And even assuming for the sake of argument that RCW 2.28.150
did authorize the trial court to exercise its inherent powers, doing so
would clearly infringe upon the legislature's intent to prevent convicted
felons from easily obtaining firearms. State v. Padilla, 95 Wn. App. 531,
534-35, 978 P.2d 1113 (1999). We also reject Masangkay's argument based
upon the Washington constitution. Regulation of firearms is clearly within
the State's police powers. State v. Hernandez-Mercado, 124 Wn.2d 368, 375,
879 P.2d 283 (1994). Thus, the trial court had no basis to use its
equitable powers under Washington's Constitution to restore Masangkay's
firearm rights.
Masangkay also presents his argument in terms of the rehabilitative
goals of the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW. While
the primary goal of the JJA is to rehabilitate not punish juveniles, State
v. J.H., 96 Wn. App. 167, 183, 978 P.2d 1121 (1999), the conviction
definition set forth in RCW 9.41.040(3) clearly applies the statutory
prohibition to persons with both adult and juvenile convictions. If there
is inconsistency between the policies behind RCW 9.41.040 and the JJA, then
that is a matter for the legislature, not the courts, to resolve.
We reverse.
WE CONCUR:
1 RCW 9.41.040(4)(b)(i) provides that a person convicted of robbery,
without a previous conviction for a sex offense, may petition for
reinstatement of firearm rights 'after five or more consecutive years in
the community without being convicted or currently charged with any felony,
gross misdemeanor, or misdemeanor crimes, if the individual has no prior
felony convictions that prohibit the possession of a firearm counted as
part of the offender score under RCW 9.94A.525.' (Reviser's note omitted.)
2 In Smith, the petitioner argued that RCW 9.41.040(3) provided an
independent basis for reinstatement under the certificate of rehabilitation
procedure. But the court disagreed, holding that subsection (3) was a
separate means of regaining firearm rights, but that it should not be read
in a manner that would infringe upon subsection (4), which permanently
denied the right to possess firearms to persons convicted of certain
offenses, such as sex offenses. Smith, 118 Wn. App. at 470. The court
relied in part upon 2002 Attorney General Opinion No. 4, which advised that
for persons not eligible to petition for reinstatement under RCW
9.41.040(4), the only avenue was by pardon from the governor with a
specific finding of rehabilitation or innocence. Smith, 118 Wn. App. at
469.
3 An Arizona case cited by the State also adopts this position. State v.
Buonafede, 168 Ariz. 444, 814 P.2d 1381 (1991). In Buonafede, the court
declined to adopt the petitioner's inherent authority argument, instead
holding that restoration of civil rights is a creature of statute and
deferring to Arizona's statutory scheme for restoring civil rights.
Buonafede, 814 P.2d at 446. It also rejected the argument that the courts
can interpret a reference to certificates of rehabilitation in Arizona's
rules of evidence as a substantive authorization to issue such
certificates. Thus, Masangkay's inherent authority argument is not
supported by Washington law or that of other jurisdictions.
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 52096-2-I
Title of Case: State of Washington, Appellant v. Jason E.
Masangkay, Respondent
File Date: 06/07/2004
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-8-07492-4
Judgment or order under review
Date filed: 02/28/2003
Judge signing: Hon. Michael S Spearman
JUDGES
------
Authored by H Joseph Coleman
Concurring: Ann Schindler
Susan R. Agid
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Charles Wesley Lind
Attorney at Law
516 3rd Ave Ste W554
Seattle, WA 98104-2362
Counsel for Respondent(s)
Washington Appellate Project
Attorney at Law
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101
Jason Brett Saunders
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 52096-2-I
)
Appellant, ) DIVISION ONE
) v. )
) JASON MASANGKAY, ) Published
D.O.B. 8/10/84, ) )
Respondent. ) FILED:
)
COLEMAN, J. Jason Masangkay pleaded guilty to robbery in the second
degree and was placed in custody at a juvenile detention facility. Less
than three years after his release, he decided to join the Marines. He
requested and was granted a 'certificate of rehabilitation' to reinstate
his right to possess firearms.
We reverse the trial court because RCW 9.41.040(3), which contains the
'certificate of rehabilitation' language Masangkay relies upon, cannot be
reasonably interpreted as authorization for Washington courts to issue
certificates of rehabilitation.
FACTS
After pleading guilty to second degree robbery in juvenile court, 14-
year-old Jason Masangkay was sentenced to several months in custody. As a
result of his conviction, he lost the right to possess firearms. In
December 2002, when he was 18 years old and had been out of custody for
almost three years, Masangkay petitioned the court to grant him a
certificate of rehabilitation under RCW 9.41.040(3), so that he could
regain his right to possess firearms and join the Marines. He presented
evidence that he had made substantial achievements toward becoming a good
student and citizen during his time out of custody.
The trial court initially decided that Washington law did not
authorize it to grant Masangkay's petition, but on reconsideration, it
decided that RCW 9.41.040(3) could be interpreted to permit it to issue
certificates of rehabilitation. The State appealed.
ANALYSIS
This case involves statutory construction, which is reviewed de novo.
Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 515, 910 P.2d 462 (1996).
The fundamental objective is to ascertain and carry out the intent of the
legislature. Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24
(1991). 'Where statutory language is plain and unambiguous, the statute's
meaning must be derived from the wording of the statute itself.' Rozner,
116 Wn.2d at 347. When the legislature's intent is not clear from the face
of the statute, the court may resort to various tools of statutory
construction in determining which interpretation best advances the
legislature's intent. Rozner, 116 Wn.2d at 347.
The question presented is whether the legislature intended RCW
9.41.040(3) to authorize Washington courts to issue a certificate of
rehabilitation to allow a person convicted of certain felony crimes to
regain the right to possess firearms. That statute provides:
Notwithstanding RCW 9.41.047 or any other provisions of law, as used
in this chapter, a person has been "convicted", whether in an adult court
or adjudicated in a juvenile court, at such time as a plea of guilty has
been accepted, or a verdict of guilty has been filed, notwithstanding the
pendency of any future proceedings including but not limited to sentencing
or disposition, post-trial or post-factfinding motions, and appeals.
Conviction includes a dismissal entered after a period of probation,
suspension or deferral of sentence, and also includes equivalent
dispositions by courts in jurisdictions other than Washington state. A
person shall not be precluded from possession of a firearm if the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted or the conviction or disposition has
been the subject of a pardon, annulment, or other equivalent procedure
based on a finding of innocence. Where no record of the court's disposition
of the charges can be found, there shall be a rebuttable presumption that
the person was not convicted of the charge.
RCW 9.41.040(3) (emphasis added). This question was left unanswered by
this court in Nakatani v. State, 109 Wn. App. 622, 36 P.3d 1116 (2001),
which stated in a footnote,
{T}the authority of Washington courts to issue {certificates of
rehabilitation} is not before us in this case. We also express no opinion
regarding Nakatani's right to request an equivalent finding of
rehabilitation in a separate Superior Court proceeding. If Nakatani files
such a petition, the trial court will then be in a position to evaluate
whether and under what circumstances RCW 9.41.040(3) authorizes the court
to issue certificates of rehabilitation or make equivalent findings.
Nakatani, 109 Wn. App. at 628 n.3. While Nakatani did not expressly reject
the trial court's authority to issue certificates of rehabilitation, the
issue is squarely before us now.
Masangkay contends that prior Washington cases have recognized
RCW 9.41.040(3) as authorizing Washington courts to consider such
petitions, but the State disagrees. The State argues that RCW 9.41.040(3)
does not authorize the courts to issue certificates of rehabilitation and
that RCW 9.41.040(4) is the exclusive means for Masangkay to regain his
firearm rights. Under that statute, Masangkay must wait at least five
years following his release from custody to be eligible to regain those
rights.1
Contrary to Masangkay's contention, no Washington case has gone as far
as recognizing that RCW 9.41.040(3) has established a procedure for
Washington courts to issue certificates of rehabilitation. In one case
cited by Masangkay, Morris v. Blaker, 118 Wn.2d 133, 821 P.2d 482 (1992),
the court merely acknowledged that the language of RCW 9.41.040(3) existed.
In another case, Forster v. Pierce County, 99 Wn. App. 168, 172, 991 P.2d
687, review denied, 141 Wn.2d 1010 (2000), a convicted felon unsuccessfully
argued that his receipt of a final discharge restoring civil rights in 1977
constituted a procedure equivalent to a finding of rehabilitation under RCW
9.41.040(3). The petitioner did not argue that the court was authorized to
issue a certificate of rehabilitation, and the court never suggested that
he could have petitioned for one.
In State v. Radan, 143 Wn.2d 323, 329, 21 P.3d 255 (2001), instead of
addressing whether Washington had a certificate of rehabilitation
procedure, the Supreme Court determined whether the 'certificate of
rehabilitation, or other equivalent procedure' language of RCW 9.41.040(3)
could be satisfied by certain Montana procedures. Again, the court
recognized the existence of the certificate of rehabilitation language in
RCW 9.41.040(3), but it did not hold that a procedure to issue certificates
of rehabilitation exists in Washington.
The State makes several persuasive arguments why this court should not
infer from RCW 9.41.040(3) an intention on the part of the legislature to
create a procedure for Washington courts to issue certificates of
rehabilitation. First, the legislature has adopted several statutory
provisions detailing the procedure for reinstating firearm rights
following a conviction or commitment for mental illness, such as RCW
9.41.040(4) and RCW 9.41.047. These provisions contain important criteria
for the courts to apply when reinstating firearm rights. In contrast,
subsection (3) provides courts with no guidance in determining what
constitutes rehabilitation under the statute. Accordingly, courts applying
this provision could potentially reach widely differing conclusions as to
what constitutes rehabilitation.
Second, the absence of criteria for applying subsection (3) makes it
difficult to infer an intention on the legislature's part to create such a
procedure. The legislature has demonstrated its ability to craft statutes
that create express procedures for restoring firearm rights. State v.
Swanson, 116 Wn. App. 67, 65 P.3d 343 (2003). In Swanson, the court
evaluated the various statutes that relate to restoration of firearm and
other civil rights to determine the petitioner's burden of proof and
whether a discretionary or mandatory standard applied to petitions
submitted under RCW 9.41.040(4). Swanson, 116 Wn. App. at 73-75. While we
reject the State's argument that the Swanson court's failure to discuss
subsection (3) can be used to infer that no certificate of rehabilitation
procedure exists, the Swanson decision does demonstrate the importance of
including criteria for deciding when and how to issue certificates of
rehabilitation. The legislature clearly has demonstrated that when it
wants to, it can enact procedures for reinstating firearm rights with
specific criteria. See RCW 9.41.047 (restoration of firearm rights for
persons involuntarily committed for mental treatment) and RCW 9.41.040(4)
(restoration of firearm rights for persons convicted of certain felonies).
When compared with these statutes, the lack of criteria for issuing
certificates of rehabilitation demonstrates that the legislature did not
intend subsection (3) to act as a self-executing statutory authority.
This conclusion is also supported by the observation made in Radan
that the language of subsection (3) was borrowed directly from ER 609(c)
without a corresponding intention to create a substantive procedure. ER
609(c), which is based upon Federal Rules of Evidence 609(c), states:
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been
convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the
subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
Federal Rules of Evidence 609(c) refers to 'certificate of rehabilitation'
in the context of defining the grounds for impeachment based upon a
witness's prior convictions. Certain jurisdictions, such as California and
Mississippi, have statutory provisions authorizing courts to issue
certificates of rehabilitation, and both the state and federal evidentiary
rules appear to acknowledge their existence. Cal. Penal Code sec. 4852.01
(2004); Miss. Code sec. 97-37-5(3) (2004). This does not necessarily mean,
however, that in enacting RCW 9.41.040(3), the legislature intended to
create an express procedure in Washington courts to be used for reinstating
firearm rights. A more reasonable conclusion is that in defining
exceptions to the law prohibiting convicted felons from possessing
firearms, the legislature used the evidentiary rules as a template for
acknowledging the effect of existing procedures, not to create new ones.
Given the source of the certificate of rehabilitation language and the lack
of criteria to make this determination, it does not make sense to read
subsection (3) as an intentional legislative act to create a certificate of
rehabilitation procedure. For the same reasons, we decline to read
subsection (3) as authorizing Washington courts to establish a procedure
equivalent to a certificate of rehabilitation 'based on a finding of
rehabilitation.' RCW 9.41.040(3).
We find less persuasive the State's argument regarding the prefatory
language of RCW 9.41.040(4), 'Notwithstanding any other provisions of this
section.' The State argues that this language requires us to read
subsection (4) separately from subsection (3) as requiring all convicted
felons to wait the required statutory period before petitioning for
reinstatement, regardless of any other statutory provision. The State
claims that its reading comports with the rule of statutory construction
that statutes must be interpreted and construed so that all the language
used is given effect. Davis v. Dept. of Licensing, 137 Wn.2d 957, 963, 977
P.2d 554 (1999). But the State's reading of subsection (3) ignores the
substantive force of that section, particularly the provisions permitting
persons with convictions that are subject to a pardon, annulment, or a
certificate of rehabilitation (issued by a court that is authorized to
issue them) to regain their firearm rights before the requisite waiting
period had expired. Adopting the State's argument would render portions of
subsection (3) meaningless. We therefore conclude that subsections (3) and
(4) should be read separately, but in harmony with each other, so as not to
contradict the clear terms of each.
This was the result reached in Smith v. State, 118 Wn. App. 464, 470,
76 P.3d 769 (2003), the only other Washington case to address the argument
Masangkay makes here. Smith observed that '{a}s currently drafted, there
is no provision in Washington statutes for the issuance of a certificate of
rehabilitation.' Smith, 188 Wn. App. at 471. The question in Smith was
different than the one presented here.2 There, the petitioner was a sex
offender and therefore ineligible for reinstatement under RCW 9.41.040(4)
unless he received a pardon with a specific finding of rehabilitation or
innocence. But as discussed above, we agree with Smith that currently
there is no provision in Washington statutes for issuance of a certificate
of rehabilitation and therefore do not accept Masangkay's argument that
Smith's observation on this matter was erroneous.
Masangkay urges this court in the alternative to adopt the reasoning
of the concurrence in Smith, which asserted that the absence of a
certificate of rehabilitation procedure should not prevent the court from
exercising its general jurisdiction to grant the right to possess a firearm
under the Washington Constitution. Smith, 118 Wn. App. at 470-71. In
addition, Masangkay also argues that when the trial court granted his
petition, it properly exercised its inherent powers to adopt suitable
procedures under RCW 2.28.150.
When jurisdiction is otherwise conferred and no course of proceeding
is specifically pointed out, RCW 2.28.150 authorizes the court to adopt any
suitable process or mode of proceeding that may appear most conformable to
the spirit of the laws. In re Cross, 99 Wn.2d 373, 380, 662 P.2d 828
(1983). We conclude that Cross does not support the exercise of inherent
powers under circumstances such as this. In Cross, an involuntary
outpatient treatment order was revoked without a showing that the detainee
had violated its terms. The statute under which the order was issued
required the court to find a violation before it could revoke or modify
outpatient treatment. Thus, the court concluded that the court lacked
jurisdiction to act and that there existed alternative proceedings
authorizing the State to file a new petition before expiration of the
outpatient treatment. Cross, 99 Wn.2d at 380.
Firearm rights restoration is a matter for which the legislature has
provided the necessary statutory authority. See State v. Breazeale, 144
Wn.2d 829, 840, 31 P.3d 1155 (2001) (holding that statutory authority to
restrict public access to certain records existed and that courts lacked
the inherent power to expunge a criminal record except when necessary to
enforce constitutional guaranties). We decide that the creation of a
certificate of rehabilitation procedure is a matter for the legislature to
perform not the courts.3 As seen in Cross, even if a statute does not
provide for a particular procedure, if alternative procedures exist that
would accomplish the same goal, resort to inherent power is not
appropriate. And even assuming for the sake of argument that RCW 2.28.150
did authorize the trial court to exercise its inherent powers, doing so
would clearly infringe upon the legislature's intent to prevent convicted
felons from easily obtaining firearms. State v. Padilla, 95 Wn. App. 531,
534-35, 978 P.2d 1113 (1999). We also reject Masangkay's argument based
upon the Washington constitution. Regulation of firearms is clearly within
the State's police powers. State v. Hernandez-Mercado, 124 Wn.2d 368, 375,
879 P.2d 283 (1994). Thus, the trial court had no basis to use its
equitable powers under Washington's Constitution to restore Masangkay's
firearm rights.
Masangkay also presents his argument in terms of the rehabilitative
goals of the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW. While
the primary goal of the JJA is to rehabilitate not punish juveniles, State
v. J.H., 96 Wn. App. 167, 183, 978 P.2d 1121 (1999), the conviction
definition set forth in RCW 9.41.040(3) clearly applies the statutory
prohibition to persons with both adult and juvenile convictions. If there
is inconsistency between the policies behind RCW 9.41.040 and the JJA, then
that is a matter for the legislature, not the courts, to resolve.
We reverse.
WE CONCUR:
1 RCW 9.41.040(4)(b)(i) provides that a person convicted of robbery,
without a previous conviction for a sex offense, may petition for
reinstatement of firearm rights 'after five or more consecutive years in
the community without being convicted or currently charged with any felony,
gross misdemeanor, or misdemeanor crimes, if the individual has no prior
felony convictions that prohibit the possession of a firearm counted as
part of the offender score under RCW 9.94A.525.' (Reviser's note omitted.)
2 In Smith, the petitioner argued that RCW 9.41.040(3) provided an
independent basis for reinstatement under the certificate of rehabilitation
procedure. But the court disagreed, holding that subsection (3) was a
separate means of regaining firearm rights, but that it should not be read
in a manner that would infringe upon subsection (4), which permanently
denied the right to possess firearms to persons convicted of certain
offenses, such as sex offenses. Smith, 118 Wn. App. at 470. The court
relied in part upon 2002 Attorney General Opinion No. 4, which advised that
for persons not eligible to petition for reinstatement under RCW
9.41.040(4), the only avenue was by pardon from the governor with a
specific finding of rehabilitation or innocence. Smith, 118 Wn. App. at
469.
3 An Arizona case cited by the State also adopts this position. State v.
Buonafede, 168 Ariz. 444, 814 P.2d 1381 (1991). In Buonafede, the court
declined to adopt the petitioner's inherent authority argument, instead
holding that restoration of civil rights is a creature of statute and
deferring to Arizona's statutory scheme for restoring civil rights.
Buonafede, 814 P.2d at 446. It also rejected the argument that the courts
can interpret a reference to certificates of rehabilitation in Arizona's
rules of evidence as a substantive authorization to issue such
certificates. Thus, Masangkay's inherent authority argument is not
supported by Washington law or that of other jurisdictions.