FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE FEBRUARY 4, 2021 SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 4, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 96365-7
Respondent/Cross-Petitioner, ) (consol. w/ 96566-8)
)
v. )
) En Banc
PHILLIP SCOTT NUMRICH, )
)
Petitioner/Cross-Respondent. )
) Filed : February 4, 2021
_______________________________________)
MADSEN, J.—At issue in this case is whether the general-specific rule applies to
a second degree manslaughter charge stemming from a workplace death. The State
initially charged Phillip Scott Numrich under the Washington Industrial Safety and
Health Act of 1973 (WISHA), RCW 49.17.190(3), the specific statute that punishes
employer conduct resulting in employee death. The State also charged the employer with
second degree manslaughter. The trial court denied the employer’s motion to dismiss the
manslaughter charge based on the general-specific rule, and the employer sought and was
granted direct review. Specifically, we are asked whether the trial court properly denied No. 96365-7 (consol. w/ 96566-8)
Numrich’s motion to dismiss a second degree manslaughter charge when one of his
employees was killed at the construction site.
While consideration of the employer’s motion for direct discretionary review was
pending, the State moved to amend the information to add an alternative charge of first
degree manslaughter. The trial court granted the motion to amend but sua sponte
imposed sanctions against the State based on the timing of the amendment. The
employer sought review of the order granting the amendment and the State sought review
of the order imposing sanctions. This court granted review and consolidated all the noted
matters for consideration.
For the reasons discussed below, we hold that the trial court did not err in denying
the employer’s motion to dismiss the manslaughter charge under the general–specific
rule. We further hold that the trial court did not err in granting the State’s motion to
amend the information to add an alternative first degree manslaughter charge. Finally,
we hold that the trial court did not err in imposing sanctions on the State under the
circumstances of this case. With these holdings, we remand to the trial court for further
proceedings.
FACTS
Numrich is the owner and operator of Alki Construction LLC. Harold Felton was
Numrich’s employee. On January 16, 2016, Numrich’s company began replacing a
sewer line at a residence in West Seattle. Numrich employed a technique by which a
trench is dug at either end of the residential sewer pipe to be replaced and then a
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hydraulic machine is used to pull a new pipe through the old one, which simultaneously
bursts the old pipe and inserts the new one into place.
In the present case, the trench that was dug where the sewer line connected to the
house was 21 inches wide, 6 feet long, and 8 to 10 feet deep. With a trench of this depth,
there is a substantial risk that the excavation could cave in; several factors affect the risk
of collapse, including the soil condition and type, the depth of the trench, and whether the
soil was previously disturbed. All of these factors increased the likelihood of a collapse
at the West Seattle project. By January 26, 2016, several other factors increased the
likelihood of a collapse: the trench had been dug and left open for 10 days and the soil
was saturated after several days of seasonal rain.
Washington has safety regulations that apply to jobsite excavations. For a trench
as large as the one in West Seattle, these regulations require that the walls be shored to
prevent a cave-in. Although Numrich placed some shoring in the trench, it was
insufficient to safely stabilize the excavation.
Washington safety regulations also require that a “competent person” regularly
inspect any trenches and the protective system installed in them. Clerk’s Papers (CP) at
453. “Competent person” is a term defined by WAC 296-155-650(2) as someone “who
can identify existing or predictable hazards in the surroundings that are unsanitary,
hazardous, or dangerous to employees,” and who has “authority by the nature of their
position to take prompt corrective measures to eliminate [such hazards].” See also CP at
453. Inspections by the “competent person” must be made daily prior to the start of any
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work in a trench and must be repeated after every rainstorm or other hazard-increasing
occurrence. Id. If the “competent person” observes any evidence of a situation that
could result in a possible collapse, that person must remove all employees from the
trench until precautions have been taken to ensure worker safety. Id. at 453-55.
Numrich, as the company owner and supervisor of his employees, and who was “aware
of the requirements” for the protection of workers in trenches, was the “competent
person” at the jobsite during the project. Id.
On January 26, 2016, Numrich and his employees Felton and Maximillion Henry
were at the West Seattle jobsite. Shortly after 10:00 a.m., the new pipe had been pulled
into place, and Felton was working in the trench beside the house. Felton began using a
motorized saw to cut a pipe. This tool can cause vibrations in the ground, which can
disturb the soil and increase the risk of a trench collapse.
Numrich noted and commented to Henry that Felton’s use of the saw in the trench
was “‘vibrating the heck out of the ground.’” Id. at 454, 465. Despite being aware of the
risks, Numrich made no effort to halt Felton’s use of the saw in the trench and did not
reinspect the trench after Felton finished using the equipment. Id. at 454-56, 465-67.
Numrich left the jobsite to buy lunch for his crew. Approximately 15 minutes after
Numrich left, the trench collapsed, burying and killing Felton.
Procedural history
On January 5, 2018, the State initially charged Numrich with manslaughter in the
second degree (RCW 9A.32.070) (count 1) and violation of labor safety regulation with
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death resulting (RCW 49.17.190(3)) (count 2). Id. at 1-2. On April 30, 2018, Numrich
moved to dismiss the manslaughter charge. He argued that under Washington’s generalspecific rule, the specific statute precluded prosecution under the general manslaughter
statute. Over the next several months, the parties filed multiple rounds of briefing on the
matter.
The hearing on the motion to dismiss occurred on July 19, 2018. At the time,
King County Superior Court Judge John Chun took the matter under advisement and
ultimately denied the defense motion. The parties appeared before Judge Chun again on
August 23, 2018, and presented argument on certification for discretionary review. Id. at
194; Hr’g Tr. at 68-83. The court granted Numrich’s motion to certify, and Numrich then
filed a notice of direct discretionary review with this court. Id. at 248, 244. Numrich’s
motion for discretionary review and statement of grounds for direct review timely
followed on September 28, 2018, and was assigned case number 96365-7.
On October 18, 2018, the day that the State’s answer was due in this court, the
State notified Numrich’s counsel in an e-mail that the State intended to amend the
charging information. The State attached a proposed amended information that added a
charge of manslaughter in the first degree. Numrich’s counsel objected and noted his
intent to seek discovery related to the timing and circumstances of the State’s tactics.
Later the same day, the State filed its answer in this court, which noted the State’s
intended amendment, contending that discretionary review would be a useless exercise:
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Even if this Court were to accept review and rule in Numrich’s favor, he
will still face felony manslaughter charges. . . . Here, the State intends to
add a count of Manslaughter in the First Degree.
Id. at 634. The State added, “The State’s motion to amend the Information is in the
process of being scheduled and there is no basis to conclude that it will not be granted.”
Id.
On October 30, 2018, the defense filed opposition pleadings and a motion to
compel discovery in the superior court. See id. at 250-274; 423-29. The next day, the
parties presented oral argument on the motion to amend in front of King County Superior
Court Judge James Rogers.
On November 1, 2018, Judge Rogers issued a ruling granting the motion to
amend. Id. at 470. However, the court noted that this was “a highly unusual case” and
sua sponte awarded attorneys’ fees against the State. Id. at 471. The court explained that
it had “never awarded terms in a criminal case and they are not a remedy except in highly
unusual situations.” Id. Judge Rogers also certified the order on motion to amend:
The Order Granting the Amendment only is hereby certified for
appeal to join the discretionary appeal currently pending in the Washington
Supreme Court. Per Judge Chun’s Order of 23 August 2018, this Court
concludes that the Amendment adds a charge that is inextricably related to
the issues of law certified by Judge Chun under RAP 2.3(b)(4).
Id. at 471-72. In addition, the court found that “the State is using this amendment to
obtain dismissal of the discretionary review” and that “there are no additional facts or
discovery or new legal theory.” Id. at 471.
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In the afternoon of November 1, 2018, the parties presented argument to
Commissioner Michael Johnston on the pending motion for direct discretionary review.
On November 5, 2018, Commissioner Johnston issued a ruling that recognized the new
certification. Commissioner Johnston deferred ruling on the motion pending Numrich’s
filing of a second notice of discretionary review, supporting briefing, and this court’s
consideration regarding “whether to consolidate the motions and statements of grounds
for direct review or consider them together as companions.” Id. at 769-70. On
November 16, 2018, Numrich filed his second notice of discretionary review, which was
subsequently assigned case number 96566-8.
Meanwhile, on November 13, 2018, the State filed, in the trial court, a motion to
reconsider the imposition of sanctions and Numrich filed a response and a motion to
dismiss pursuant to CrR 8.3(b) (governmental misconduct or arbitrary action) or,
alternatively, to reconsider order on motion to amend. Id. at 878-98, 870-77; see also id.
at 766-869. The parties also filed pleadings regarding petitioner’s fee petition.
On December 21, 2018, the trial court issued an order denying the State’s motion
to reconsider and denying the defense motion to dismiss or reconsider, explaining that “it
was unquestionably the right of the State to amend if it chose.” Id. at 976-77. Following
additional briefing on the fee issue, on January 28, 2019, the court granted Numrich’s fee
request in full and ordered the State to pay $18,252.49. Id. at 1132.
Thereafter, the parties completed briefing on Numrich’s second motion for
discretionary review. On July 10, 2019, this court granted Numrich’s motion for
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discretionary review and consolidated case number 96566-8 with this matter. In the same
order, this court also accepted review of the State’s motion for direct discretionary review
of the order imposing sanctions and the amount of the fees, and consolidated those issues
in this matter as well. Altogether, the cases were consolidated under cause number
96365-7.
ANALYSIS
Statutory Concurrency
This case turns on whether Washington’s manslaughter statute, RCW 9A.32.070,
and the WISHA homicide statute, RCW 49.17.190(3), are concurrent statutes for the
purpose of the general-specific rule. The general-specific rule is a “well established rule
of statutory construction that ‘[if] a special statute punishes the same conduct [that] is
punished under a general statute, the special statute applies and the accused can be
charged only under that statute.’” State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237
(1984) (quoting State v. Cann, 92 Wn.2d 193, 197, 595 P.2d 912 (1979)). “It is not
relevant that the special statute may contain additional elements not contained in the
general statute . . . . The determining factor is that the statutes are concurrent in the sense
that the general statute will be violated in each instance where the special statute has been
violated.” Id.
“Under this rule, if ‘concurrent general and special acts are in pari materia [on the
same subject or matter] and cannot be harmonized, the latter will prevail, unless it
appears that the legislature intended to make the general act controlling.’” State v. Conte,
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159 Wn.2d 797, 803, 154 P.3d 194 (2007) (quoting Wark v. Wash. Nat’l Guard, 87
Wn.2d 864, 867, 557 P.2d 844 (1976)). Consideration of whether two statutes are
concurrent is a question of law reviewed de novo. Lenander v. Dep’t of Ret. Sys., 186
Wn.2d 393, 377 P.3d 199 (2016).
The manslaughter statute, RCW 9A.32.070, provides that “[a] person is guilty of
manslaughter in the second degree when, with criminal negligence, he or she causes the
death of another person.” A person is criminally negligent when they fail “to be aware of
a substantial risk that a wrongful act may occur.” RCW 9A.08.010(1)(d).
The relevant WISHA provision states:
Any employer who willfully and knowingly violates the requirements of
RCW 49.17.060, any [listed] safety or health standard . . . and that violation
caused death to any employee shall, upon conviction be guilty of a gross
misdemeanor and be punished by a fine of not more than one hundred
thousand dollars or by imprisonment for not more than six months or by
both.
RCW 49.17.190(3).
Numrich argues that the State improperly charged him with second degree
manslaughter under RCW 9A.32.070, and that instead, RCW 49.17.190(3)—the specific
WISHA statute—controls. Focusing on the mens rea in each statute, Numrich reasons
that the specific WISHA provision requires proof of a higher mental element (“willfully
and knowingly”) than the general manslaughter provision (“criminal negligence”), and
therefore, every time an employer willfully or knowingly fails to comply with WISHA, it
can be assumed that the employer has also negligently or grossly deviated from the
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standard of care. He urges that the WISHA statute would never be applicable if the State
is allowed to charge under both the general manslaughter statute and the specific statute.
The State counters that the general-specific rule does not apply here because RCW
49.17.190(3) and RCW 9A.32.070 have different subject matters, criminalize different
conduct, and are not concurrent. Further, the State argues that applying the generalspecific rule in the present case would weaken the statutory purpose of RCW
49.17.190(3), which ensures safe and healthy working conditions for all employees, and
would lead to absurd results. We agree.
“A more specific statute supersedes a general statute only if the two statutes
pertain to the same subject matter and conflict to the extent they cannot be harmonized.”
In re Estate of Kerr, 134 Wn.2d 328, 343, 949 P.2d 810 (1998). Courts generally begin
this analysis by comparing the elements of the general and specific statutes at issue.
Here, Numrich recognizes that the mens rea required to prove manslaughter is
different than that required by the WISHA statute. However, he points to RCW
9A.08.010(2), which states that “[w]hen a statute provides that criminal negligence
suffices to establish an element of an offense, such element also is established if a person
acts intentionally, knowingly, or recklessly.” Numrich asserts that “[i]n each and every
case that a person willfully and knowingly violates a safety regulation, it can also be said
that the employer has engaged in negligent and reckless conduct.” Br. of Pet’r at 20-21.
Numrich is correct that the mental state of “willfully and knowingly” will always
satisfy “negligent and reckless” conduct. However, the critical difference in the two
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statutes at issue here is the object of the mental state. State v. Gamble, 154 Wn.2d 457,
114 P.3d 646 (2005), is instructive on this point. While Gamble concerned a different
issue (whether manslaughter is a lesser included offense of felony murder), the court’s
reasoning applies here. With regard to the mental element of manslaughter, the court
held that “manslaughter requires the proof of a mens rea element vis-à-vis the resulting
death.” Id. at 469. In contrast, the court noted that to prove felony murder, the State is
not required to prove any mental element as to the killing itself. Id. at 468. As applied
here, the object of the mental element in manslaughter statutes is the resulting death,
while the object of the mental element in the WISHA statute is the violation of a safety
rule. Similar to felony murder, the WISHA statute does not require the State to prove any
mental element as to the death in order to prove a violation of the WISHA statute, only
that a death resulted. Thus, while the level of mental culpability may have the same legal
effect in the manslaughter and WISHA statutes, the mental element in each statute is
related to different conduct. Thus, the provisions are not concurrent.
Numrich relies on several cases, but they are distinguishable. In State v. Danforth,
97 Wn.2d 255, 643 P.2d 882 (1982), the petitioners there were on work release and failed
to return. They were charged with escape in the first degree. On appeal, they argued that
RCW 72.65.070 (criminalizing failure to return to work release) was the more specific
statute and that they could not be charged under the escape statute. The court agreed,
holding that the general-specific rule prohibited prosecution of a work release inmate
under the general escape statute. Id. at 257-58. In reaching its conclusion, the court
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compared the difference in the mental state between the two provisions: the general
escape statute (lack of mental intent requirement) with the failure to return to work
release statute (willful mental state). The court noted a distinction between the two and
said such distinction could lead the State to charge escape instead of failure to return
because the State would not be required to prove any mental state under the escape
statute. Id. at 258-59.
Similarly, in Shriner, 101 Wn.2d at 579-80, the court examined the elements of
first degree theft and the offense of criminal possession of a rented motor vehicle and
found the statutes concurrent. Both statutes criminalized the act of exerting unauthorized
control over property with the intent to deprive the owner of the property, but the crime
of criminal possession of a rented motor vehicle was more specific because it included an
additional element of a demand notice. Id. at 580-83. As with the statutes at issue in
Danforth, the mental element in each statute under consideration in Shriner related to the
same conduct—taking property.
Finally, in State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972), this court reversed
a conviction under the felony larceny statutes (RCW 9.54.010(2) and RCW 9.54.090) for
“obtaining goods and merchandise . . . by false and fraudulent representations,” because
those same acts were also prohibited by more specific misdemeanor statutes (RCW
9.45.040 and RCW 19.48.110). Id. at 620. The court concluded that the specific
defrauding an innkeeper statute (RCW 19.48.110) and the general larceny statutes were
concurrent and therefore the specific statute applied. In reaching its decision, the court
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noted that the legislature had established a “complete act” dealing with the liability and
protection of hotels, inns, and lodging houses, including the provision making the
defrauding of a such an establishment a gross misdemeanor. Id. at 623. The court was
persuaded that the legislature intended the defrauding of hotels, inns, and lodging houses
be prosecuted as a misdemeanor.
Although superficially similar, in each of the statutes discussed in preceding cases,
the object of the mental state related to the same conduct, yet the mens rea differed. In
contrast, the mental state under the relevant statutes here—RCW 9A.32.070 and RCW
49.17.190(3)—focus on different conduct. The WISHA statute is aimed at punishing a
willful, knowing violation of safety rules that results in death, while the mental state in
the manslaughter statutes focuses on negligent or reckless disregard of a substantial risk
that a death will occur.
Numrich also argues that “[i]t is impossible to envision a legally plausible case
where a defendant might be guilty of the specific WISHA statute but acquitted of the
more general manslaughter statutes.” Br. of Pet’r at 20. But, it is not unusual in criminal
law that multiple statutes can be violated by the same set of facts. Whether the State
prevails will depend on whether it can prove the elements of the crime. E.g., State v.
Finister, 5 Wn. App. 44, 46, 486 P.2d 114 (1971) (“It is axiomatic that the state must
prove all elements of a crime beyond a reasonable doubt, if a criminal conviction is to
stand.”). To prove manslaughter, the State must prove beyond a reasonable doubt that
the defendant recklessly or with criminal negligence disregarded the substantial risk that
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death would occur. Gamble, 154 Wn.2d at 467. To prevail on a WISHA charge, the
State need show only that the defendant recklessly and willfully violated a safety rule.
As in the felony murder context, where the statute requires proof that the death flows
from the commission of the felony, the State must prove only that death flowed from the
violation of a safety rule. If the State proves only that the defendant willfully and
knowingly violated a safety rule, but not that the defendant was criminally negligent or
reckless as to the substantial risk of death, the State will fail to prove manslaughter. It is
conceivable that some intentional or knowing violations of the WISHA homicide statute
would create a failure to observe a minimal risk of death, whereas the second degree
manslaughter statute requires a failure to observe a substantial risk of death. Thus, the
general second degree manslaughter statute would not always be violated every instance
the specific WISHA homicide statute is.
Next, Numrich argues that “there is no evidence that the legislature intended to
make the general manslaughter statutes controlling.” Reply Br. of Pet’r/Cross-Resp’t at
10. This court applies the general-specific rule to preclude a criminal prosecution “only
where the legislative intent is crystal clear.” Conte, 159 Wn.2d at 815. “It is the duty of
the court to construe statutes in the manner that best fulfills the legislative purpose and
intent.” State v. Haggard, 195 Wn.2d 544, 547-48, 461 P.3d 1159 (2020).
Numrich maintains that WISHA is the workplace safety equivalent to the
Industrial Insurance Act’s (IIA), Title 51 RCW, worker compensation system; and, like
the IIA, WISHA is a compromise that balances workplace safety with economic stability.
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He contends that if the legislature had intended that workplace fatality accidents should
be punished under the general manslaughter statute, it never would have enacted RCW
49.17.190(3).
This court accords substantial weight to an agency’s interpretation within its area
of expertise and upholds that interpretation if it reflects a plausible construction of the
regulation and is not contrary to legislative intent. Frank Coluccio Constr. Co. v. Dep’t
of Labor & Indus., 181 Wn. App. 25, 36, 329 P.3d 91 (2014). However, the court retains
the ultimate responsibility for interpreting a regulation. Id. IIA clearly states that it is the
exclusive remedy for worker compensation claims, RCW 51.04.010; WISHA does not
similarly so provide. As amicus Department of Labor & Industries (L&I) points out,
“[h]ad the Legislature intended to make WISHA the exclusive remedy for workplace
safety issues it would have said so, just like it did for the [IIA].” Br. of Amicus Curiae
L&I at 9.
The legislative history of WISHA contains a legislative committee discussion
regarding the need to avoid federal preemption of the Occupational Safety and Health
Act of 1970 (OSHA). Several WISHA provisions are identical to OSHA provisions and
are intended to be analogous to them. Enacting the Washington Industrial Safety and
Health Act of 1973: Hearing on SB2389 Before the S. Comm. on Labor at 2, 43d Leg.,
Reg. Sess. (Wash. Feb. 2, 1973). Relevant here, OSHA and WISHA have nearly
identical provisions creating criminal misdemeanor culpability for willful and knowing
violations of safety rules that result in death. Compare RCW 49.17.190(3), with 29
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U.S.C. § 666(e). The federal provision has been construed not to limit the states’ use of
their state criminal laws in addressing workplace deaths. “Nothing in [OSHA] or its
legislative history suggests that Congress intended . . . to preempt enforcement of State
criminal laws of general application, such as murder, manslaughter, or assault.” H.R.
REP. NO. 100-1051, at 9 (1988). Based on the legislative history, neither Congress nor
our state legislature has expressed an intent to preclude Washington prosecutors from
bringing homicide charges against employers under Washington State law after a
workplace death has occurred. In reaching this conclusion, we also find persuasive
numerous decisions amicus refers us to from other jurisdictions that have upheld the
application of other criminal laws in prosecuting workplace deaths. See, e.g., State v. Far
W. Water & Sewer Inc., 224 Ariz. 173, 184, 228 P.3d 909 (Ct. App. 2010); Sabine
Consol., Inc. v. State, 806 S.W.2d 553, 557 (Tex. Crim. App. 1991); People v. Chicago
Magnet Wire Corp., 126 Ill. 2d 356, 367-68, 534 N.E.2d 962, 128 Ill. Dec. 517 (1989);
People v. Pymm, 76 N.Y.2d 511, 521, 563 N.E.2d 1, 561 N.Y.S.2d 687 (1990); State ex
rel. Cornellier v. Black, 144 Wis. 2d 745, 755, 425 N.W.2d 21 (Ct. App. 1988).
Finally, the State contends, “[A]ccepting Numrich’s argument that the Legislature
intended for RCW 49.17.190(3) to preclude prosecution under RCW 9A.32.070 in
circumstances where both applied would require this Court to violate the general rule that
statutes should not be construed in [a] manner that leads to absurd results.” State’s
Answer to Mot. for Discr. Review at 15-16; Br. of Resp’t/Cross-Pet’r at 23-24; see also
State v. Larson, 184 Wn.2d 843, 851, 365 P.3d 740 (2015). In Five Corners Family
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Farmers v. State, 173 Wn.2d 296, 311, 268 P.3d 892 (2011), we cautioned that the absurd
results canon of statutory construction should be used “sparingly” and “if a result ‘is
conceivable, the result is not absurd.’” (quoting State v. Ervin, 169 Wn.2d 815, 824, 239
P.3d 354 (2010)). However, we agree with amicus L&I and the State that if Numrich’s
argument is followed to its logical conclusion, RCW 49.17.190 would provide less
protection to a worker than to a member of the public and would fail in its purpose of
providing safe working conditions for workers in our state. Frank Coluccio Constr. Co.,
181 Wn. App. at 36.
Amicus offers several examples that we find persuasive: since the WISHA statute
provides only a criminal sanction in the case of a death, an employer whose employee is
severely injured, but not killed, may face felony assault charges but only a misdemeanor
if the employee dies; if it is an employee, not the employer, who willfully and knowingly
violates a safety rule that results in death, the employee may be charged under general
criminal laws where an employer who similarly violated the rules could not; if the
employer willfully and knowingly violates a safety rule and both an employee and a
nonemployee die, the employer could face a manslaughter charge for the nonemployee
but only a misdemeanor for the death of their employee. We do not believe that the
legislature intended such results.
For these reasons, we agree with the State that the general-specific rule does not
apply. Accordingly, the trial court did not err in so holding.
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Amended Information
A trial court may permit an information to be amended at any time before verdict
so long as “substantial rights of the defendant are not prejudiced.” CrR 2.1(d). A
defendant opposing amendment bears the burden of “showing specific prejudice to a
substantial right.” State v. Thompson, 60 Wn. App. 662, 666, 806 P.2d 1251 (1991). A
court’s ruling on a State’s motion to amend is discretionary. State v. Powell, 34 Wn.
App. 791, 793, 664 P.2d 1 (1983) (citing CrR 2.1(d)). A court abuses its discretion when
it takes a position no reasonable person would adopt. State v. Demery, 144 Wn.2d 753,
758, 30 P.3d 1278 (2001).
The State moved to amend the charges against Numrich, before a trial date had
been set, in order to add an alternative charge that might otherwise expire. The additional
charge arose from the same facts as the original charges and would not require any
additional defense investigation or affect the nature of Numrich’s defense at trial, which
was still months away.
In his briefing opposing the motion, Numrich argued that (1) the State’s motion
was the product of gamesmanship and bad faith litigation tactics, (2) the State should be
estopped from seeking amendment, (3) the State’s motion prejudiced his substantial
rights, (4) the State’s motion was both actually and presumptively vindictive, and (5) the
proposed count of first degree manslaughter was not supported by probable cause. CP at
250-74. The State responded to each argument and also explained why the motion to
amend was being brought when it was and how it was submitted. Id. at 430-68. At the
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hearing on the motion, the trial court questioned the State about the timing and
circumstances concerning the motion to amend. Hr’g Tr. at 84-90.
After considering all of these matters, the trial court found that the “prejudice”
claimed by Numrich was really more a complaint about the costs he had incurred in the
appellate process up to that point and an expression of frustration that the State had not
brought the motion to amend sooner. CP at 470. The trial court concluded that this was
not a specific prejudice to a substantial right of the defendant within the meaning of CrR
2.1(d). Id. at 470-72. The trial court also found that the State had been candid in
explaining why the motion to amend had been brought when and how it had and that
there was no evidence that it was vindictive; the court granted the State’s motion to
amend. Id.
Numrich then filed motions in the alternative asking the trial court to either
dismiss some or all of the counts or to reconsider its decision. Id. at 870-77. The trial
court issued a written ruling indicating that it had reviewed all of the pleadings and
considered the arguments therein but that none of them had changed its decision. Id. at
976-77.
In this court, Numrich asserts that there are numerous reasons why the State’s
motion to amend should have been denied. First, he argues that the trial court applied the
wrong legal standard when it stated that “it was unquestionably the right of the State to
amend if it chose.” Id. at 977. Numrich contends that the use of this phrase shows that
the trial court believed that the State had the right to amend whenever it wanted. Br. of
19
No. 96365-7 (consol. w/ 96566-8)
Pet’r at 30-31. But this argument takes the trial court’s comment out of context. The
trial court was aware that the State’s right to amend was not absolute because Numrich
had repeatedly pointed out that the court had wide discretion to deny the State’s motion
even if it found no prejudice to him. CP at 259, 874. Accordingly, it is apparent that the
trial court’s ruling was that the State was allowed to amend the charges in this case, not
that the State always has an unfettered right to amend at any time.
Second, Numrich asserts that there was “absolutely no justification for the State’s
delayed amendment” and implies that the State brought the motion as a tactical maneuver
in order to convince this court to deny his motion for discretionary review, and, thus, that
the trial court abused its discretion in granting the State’s motion to amend. Br. of Pet’r
at 31.
As noted above, the State explained how and why the motion to amend came
about. CP at 449-50. In granting the motion to amend, the trial court accepted the State’s
explanation, finding that the State had been candid with the court and that there was no
evidence that the State’s actions were vindictive or otherwise improper. Id. at 470-71.
The court, after hearing all of the arguments and reviewing all of the facts, rejected
Numrich’s accusations and did not disturb its finding regarding the credibility of the
State’s explanation of events. Id. at 976-77. Despite Numrich’s claim to the contrary,
the trial court did not find that the State’s purpose in seeking the amendment was to use it
as a tool to dismiss discretionary review.
20
No. 96365-7 (consol. w/ 96566-8)
Third, Numrich argues that the trial court abused its discretion by failing to
consider his claim that the State’s motion to amend constituted prosecutorial
vindictiveness. Br. of Pet’r at 37-41. But Numrich’s claims of prosecutorial
vindictiveness were specifically argued to, and rejected by, the trial court. CP at 263-66,
471.
“Prosecutorial vindictiveness is [the] intentional filing of a more serious crime in
retaliation for a defendant’s lawful exercise of a procedural right.” State v. McKenzie, 31
Wn. App. 450, 452, 642 P.2d 760 (1981). However, it is also well recognized that “[a]n
initial charging decision does not freeze prosecutorial discretion” and that prosecutorial
vindictiveness must be distinguished from the “rough and tumble” of legitimate plea
bargaining and other aspects of pretrial practice. State v. Lee, 69 Wn. App. 31, 37, 35,
847 P.2d 25 (1993). A defendant asserting prosecutorial vindictiveness in the pretrial
context bears the burden of establishing either actual vindictiveness or “‘a realistic
likelihood of vindictiveness which will give rise to a presumption of vindictiveness.’”
State v. Bonisisio, 92 Wn. App. 783, 791, 964 P.2d 1222 (1998) (internal quotation marks
omitted) (quoting United States v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994)). If the
defendant makes this preliminary showing, the State must justify its decision with
“‘legitimate, articulable, objective reasons’ for its actions.” Id. (internal quotation marks
omitted) (quoting Wall, 37 F.3d at 1447).
Numrich establishes neither actual vindictiveness nor a “realistic likelihood of
vindictiveness” that would give rise to a presumption of vindictiveness. Further, the
21
No. 96365-7 (consol. w/ 96566-8)
State gave a detailed explanation of how and why the motion to amend came about when
it did, see CP at 449-50, 475-83, constituting the sort of “legitimate, articulable, and
objective reasons” for the State’s actions that were sufficient to rebut a presumption of
vindictiveness. Accordingly, the trial court did not abuse its discretion in rejecting
Numrich’s claim of vindictive prosecution.
Fourth, Numrich argues that the trial court abused its discretion by failing to
consider his claim that the State’s motion to amend violated principles of estoppel. Br. of
Pet’r at 42-43. But again, Numrich’s estoppel argument was explicitly argued to the trial
court and the trial court rejected it when it granted the motion to amend. CP at 261-62,
470-72. While Numrich disagrees with the trial court’s ruling, he has not established that
the court failed to consider it.
Numrich’s estoppel argument is baseless in any event. Estoppel applies only
when a party takes one position in a court proceeding and later seeks an advantage by
taking “‘a clearly inconsistent position.’” Arkison v Ethan Allen, Inc., 160 Wn.2d 535,
538, 160 P.3d 13 (2007) (emphasis added) (internal quotation marks omitted) (quoting
Bartley-Williams v. Kendall, 134 Wn. App. 95, 98, 138 P.3d 1103 (2006)). Here, in
response to a motion to dismiss a count of second degree manslaughter, the State argued
that prosecution of that charge was not precluded by the “general-specific rule.” The
State’s later motion to amend to add an alternative charge of first degree manslaughter is
not inconsistent with that position.
22
No. 96365-7 (consol. w/ 96566-8)
Finally, Numrich argues that the trial court abused its discretion when it concluded
that it had no power to deny the motion to amend even though there was no probable
cause for the count of first degree manslaughter. Br. of Pet’r at 43-44. That was not
what the trial court did. Moreover, even if probable cause was a necessary prerequisite to
amendment, there is ample probable cause supporting the charge of first degree
manslaughter. A person commits first degree manslaughter when he or she “recklessly
causes the death of another person.” RCW 9A.32.060(1)(a). In this context, a person
acts recklessly when “he or she knows of and disregards a substantial risk that [death]
may occur and [this] disregard of such substantial risk is a gross deviation from the
conduct that a reasonable person would exercise in the same situation.” RCW
9A.08.010(1)(c); 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 10.03 & cmt. at 225-26 (citing Gamble, 154 Wn.2d at 467-68).
The substantive facts of Numrich’s crime as set forth above and the reasonable
inferences that can be drawn from them establish probable cause for the charge of first
degree manslaughter. As the owner and operator of the company and the “competent
person” for the project, Numrich was well aware of the general risk of death posed to
workers in trenches like the one in question. CP at 453-56, 466-67. He was further
aware that the risk was substantially elevated given all of the risk factors that were
present at this particular jobsite on this particular day. Id. at 456, 462-67. However,
despite being aware of all these risks and being the person responsible for guarding
against them, Numrich left the site without making an effort to address these hazards and
23
No. 96365-7 (consol. w/ 96566-8)
without reinspecting the trench after they had arisen. Id. at 456, 464-67. The trench then
collapsed and killed one of Numrich’s employees. Id. at 455, 465. These facts establish
probable cause to conclude that Numrich knew of and disregarded a substantial risk that
death might occur, that his disregard of this risk was a gross deviation from the conduct a
reasonable person would exercise in the situation, and that Felton died as a result.
We hold that the trial court did not abuse its discretion in granting the State’s
motion to amend the information to add an alternative charge of first degree
manslaughter.
Sanctions against the State
As noted, the trial court granted the State’s motion to amend, but simultaneously
and sua sponte awarded terms against the State based on the timing of the motion to
amend. The trial court’s order explained:
The real prejudice claimed by the defense are the costs incurred in
proceeding with the appellate process and a real frustration that the
Prosecutor, who was candid with the Court in admitting that he did not
consider the amendment until very late in the pending appellate process,
filed this amendment so late. Discretionary appeals are not unusual in this
Court’s experience. What is unusual is to not inform all parties of relevant
considerations in light of the appeal. Mere notice of the amendment at the
beginning of the appellate process would have remedied the situation. . . .
This is a highly unusual case. What is singular here is that the State
did not give notice of an amendment in an obvious situation that would
have saved countless hours and fees for an appeal, and where the State is
using this amendment to obtain dismissal of the discretionary review, and
so announcing in the responsive appellate briefing, and where the issues
presented by the Amendment are obviously intertwined with the issues on
discretionary appeal, and where there are no additional facts or discovery or
new legal theory. In this singular instance, it is this Court’s decision to
award terms measured in the attorneys’ fees for the defense for work on the
24
No. 96365-7 (consol. w/ 96566-8)
discretionary appeal to this point. No fees are awarded for any work done
in Superior Court. The defense shall file a fee petition within 14 days of
this Order. The State may respond within seven days.
CP at 470-71.
As noted, the State sought reconsideration of this sanction and in response
Numrich filed a response and a motion to dismiss pursuant to CrR 8.3(b) or, alternatively,
to reconsider order on motion to amend. Id. at 878-98, 870-77; see also id. at 766-869.
The trial court subsequently issued an order denying the State’s motion to reconsider and
denying the defense motion to dismiss or reconsider. Id. at 976-77. The State sought
review of the sanction order, which we granted.
An award of attorneys’ fees is reviewed for abuse of discretion. Brand v. Dep’t of
Labor & Indus., 139 Wn.2d 659, 665, 989 P.2d 1111 (1999). A trial court does not abuse
its discretion unless the exercise of its discretion is manifestly unreasonable or based on
untenable grounds or reasons. Id.
Sanctions, including attorney fees, may be imposed under the court’s inherent
equitable powers to manage its own proceedings. State v. Gassman, 175 Wn.2d 208,
210-13, 283 P.3d 1113 (2012). To impose attorney fee sanctions under the court’s
equitable powers, it is sufficient and best practice for a court to make a finding of bad
faith. Id. at 211. But a finding of bad faith is not required. Id. An appellate court may
still uphold a sanction “where an examination of the record establishes that the court
found some conduct equivalent to bad faith.” Id. The issue in Gassman was that the
25
No. 96365-7 (consol. w/ 96566-8)
State amended the information to add the first degree manslaughter charge after the
defense sought discretionary review and submitted its briefing.
The State argues this case is analogous to Gassman. In Gassman, the State moved
to amend the information on the first day of trial, seeking to change the date the alleged
crime occurred. Id. at 210. The defense objected, arguing that they prepared alibi
defenses based on the original charged date. The court allowed the amendment,
continued the trial, and imposed sanctions in the form of attorney fees. The Gassman
court determined that this court could not infer any conduct tantamount to bad faith, in
part, because the court found that the State’s behavior was “careless” but not purposeful.
Further, defense counsel failed to file notice of an alibi defense, was alerted of the
possible date change several days ahead, conceded that the original “on or about”
language in the information was sufficient to include the new date, and did not need or
request a continuance given the amendment. Id. at 212-13.
The State attempts to characterize its late amendment here as a “careless” error
similar to Gassman. However, unlike Gassman, the Numrich court has made a finding
that the State acted intentionally to moot the discretionary appeal and the record supports
this finding. In its ruling on the motion to amend, the trial court found:
What is singular here is that the State did not give notice of an amendment
in an obvious situation that would have saved countless hours and fees for
an appeal, and where the State is using this amendment to obtain dismissal
of the discretionary review, and so announcing in the responsive appellate
briefing, and where the issues presented by the Amendment are obviously
intertwined with the issues on discretionary appeal, and where there are no
additional facts or discovery or new legal theory.
26
No. 96365-7 (consol. w/ 96566-8)
CP at 471 (emphasis added). This is an express finding that the State used the late
amendment to obtain dismissal of discretionary review and that there was a more
appropriate course available to amend prior to the discretionary appeal.
The State claims that this is not a basis to impose sanctions and argues that it
became aware of the need to add the first degree manslaughter charge after reviewing the
defendant’s general-specific rule arguments in his petition for discretionary review.
However, the record reveals that the State was aware of the defendant’s arguments and
that both parties disputed the effects of first and second degree manslaughter under the
general-specific rule throughout the initial motion to dismiss and briefing on the motion
to amend. The trial court’s finding that the State sought the amendment to moot the
discretionary appeal paired with the State’s withholding of the amendment until midway
through the discretionary appeal process, despite having notice beforehand, suggests
conduct tantamount to bad faith. The trial court did not abuse its discretion in imposing
attorney fees for the defendant’s preparation of the discretionary appeal.
Further, the superior court ordered the State to pay Numrich $18,252.49 for work
on the first motion for direct discretionary review, which recognized 38.1 hours of
attorney time, equivalent to approximately one workweek of total time. This fee award
reflects the briefing produced (20 page motion for discretionary review, 15 page
statement of grounds for direct review, 10 page reply), the hundreds of pages of
appendices to the briefing, the State’s briefing that required analysis and legal research
(20 page answer to motion for discretionary review and 10 page answer regarding direct
27
No. 96365-7 (consol. w/ 96566-8)
review), preparation for and completion of oral argument to the commissioner, the
complexity of the litigation; and the importance of the consequences to the client
(Numrich has no prior criminal history and faces first degree manslaughter and 6.5 to 8.5
years in prison).
[T]he determination of a fee award should not be an unduly burdensome
proceeding for the court or the parties. As long as the award is made after
considering the relevant facts and the reasons given for the award are
sufficient for review, a detailed analysis of each expense claimed is not
required.
Steele v. Lundgren, 96 Wn. App. 773, 786, 982 P.2d 619 (1999) (footnote omitted).
Here, counsel submitted detailed time sheets, along with a supporting declaration, that
documented the compensable time. CP at 978-91. After reviewing the filings, the court
found the time (13.6 hours by attorney Todd Maybrown and 24.5 hours by attorney
Cooper Offenbecher) “was a reasonable amount of time given the novelty of the issues
presented, the complexity of the litigation, the forum, and the importance of the
consequences to Mr. Numrich. The work was not duplicative or unproductive.” CP at
1131. The trial court’s findings were based on a detailed record that provided a
meaningful opportunity for review.
The State argues that there is “no indication that the trial court actively and
independently considered the reasonableness of Numrich’s fee petition or the State’s
objections to the hourly rates or number of hours billed.” Br. of Resp’t/Cross-Pet’r at 56.
But on December 21, 2018, the trial court recognized the State’s objections and requested
additional information: “Mr. Hinds is correct that Mr. Offenbecker’s [sic] original fee
28
No. 96365-7 (consol. w/ 96566-8)
petition was inadequate.” CP at 977. The trial court requested that counsel refile a
petition “listing the number of hours for each lawyer and the subject matter they worked
[on]. This may be done redacted if there is attorney-client work product or privileged
areas.” Id. In response, Numrich’s counsel provided billing time sheets as directed. Id.
at 982-91.
The State relies on Berryman v. Metcalf, 177 Wn. App. 644, 658, 312 P.3d 745
(2013), in which the Court of Appeals faulted a fee award where there was “no indication
that the trial judge actively and independently confronted the question of what was a
reasonable fee. We do not know if the trial court considered any of Farmers’ objections
to the hourly rate, the number of hours billed, or the multiplier.” See Br. of Resp’t/CrossPet’r at 55. But here, the trial court explicitly stated that the time claimed by defense
counsel “was a reasonable amount of time given the novelty of the issues presented, the
complexity of the litigation, the forum, and the importance of the consequences to Mr.
Numrich. The work was not duplicative or unproductive.” CP at 1131. The court added,
“The Court reviewed all . . . extensive pleadings, the time billings in the case, and
declines to re-review any of its earlier decisions.” Id. at 1132. The trial court clearly
engaged with the fee petition, and both parties clearly put a significant amount of time
into this case. Accordingly, 38.1 hours is a reasonable amount of time to spend on this
litigation project.
Further, a trial court has the inherent knowledge and experience to evaluate the
reasonableness of an hourly rate. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.
29
No. 96365-7 (consol. w/ 96566-8)
2011) (adopting holdings of other circuits holding that “judges are justified in relying on
their own knowledge of customary rates and their experience concerning reasonable and
proper fees” (citing Norman v. Hous. Auth., 836 F.2d 1292, 1303 (11th Cir. 1988) (courts
are themselves “experts” as to the reasonableness of attorney fees and award may be
based on court’s own experience))).
Washington courts have routinely afforded deference to the trial court’s own
experience evaluating the reasonableness of attorney fees:
Generally the testimony of expert witnesses [on the issue of the value of the
services of an attorney] is not essential. The court, either trial or appellate,
is itself an expert on the question of the value of legal services, and may
consider its own knowledge and experience concerning reasonable and
proper fees, and may form an independent judgment either with or without
the aid of testimony of witnesses as to value.
Brown v. State Farm Fire & Cas. Co., 66 Wn. App. 273, 283, 831 P.2d 1122 (1992)
(alteration in original) (quoting STUART M. SPEISER, ATTORNEYS’ FEES 478 (1973)) (trial
court’s conclusion that fees were reasonable, based on “(1) its own familiarity with
[plaintiffs’] attorneys, (2) their general reputation for competence in the legal community,
and (3) its finding that the fees were within the range charged by other lawyers”).
Here, the trial court found that “[t]he billing rates of Mr. Numrich’s attorneys—
$600 for Mr. Maybrown and $400 for Mr. Offenbecher—are reasonable rates for
litigation attorneys practicing in downtown Seattle with commensurate experience, and in
light of the novelty and difficulty of the questions involved and the seriousness of the
charges in this case.” CP at 1132. The trial judge was well within his authority to verify
30
No. 96365-7 (consol. w/ 96566-8)
the reasonableness of these Seattle hourly rates. See Brown, 66 Wn. App. at 283. The
trial court did not err in awarding sanctions against the State.
Attorney fees on appeal
In his reply brief, Numrich requests fees on appeal stating, “Pursuant to RAP 18.1,
Mr. Numrich requests fees for time spent defending the fee award on appeal.” Reply Br.
of Pet’r/Cross-Resp’t at 50. He identifies no applicable basis for such fees. 1
“Washington State courts follow the ‘American Rule’—even as to a prevailing party,
‘attorney fees are not available as costs or damages absent a contract, statute, or
recognized ground in equity.’” LK Operating, LLC v. Collection Grp., LLC, 181 Wn.2d
117, 123, 330 P.3d 190 (2014) (quoting City of Seattle v. McCready, 131 Wn.2d 266,
275, 931 P.2d 156 (1997)).
Also, RAP 18.1 requires that a party seeking attorney fees or expenses on review
to “request the fees or expenses as provided in this rule.” RAP 18.1(a). The rule further
requires, “The party [requesting appellate fees] must devote a section of its opening brief
to the request for the fees or expenses.” RAP 18.1(b) (emphasis added). As noted,
Numrich’s request appears in his reply. He provides no basis for a fee award on appeal,
and it is accordingly denied.
1
Numrich cites a case concerning fee shifting statutes. Reply Br. of Pet’r/Cross-Resp’t at 49-50. But no fee shifting statutes are at issue here.
31
No. 96365-7 (consol. w/ 96566-8)
Motions passed to the merits
Numrich filed two motions: a motion to strike amicus brief of L&I and a related
motion to supplement the record regarding his objection to the amicus brief. As both
motions were filed near the oral argument date set for this case, the motions were passed
to the merits.
Numrich’s motion to strike primarily contends that L&I worked as an “agent of
the prosecutor,” who is prosecuting this case “on behalf of the State of Washington”;
therefore, L&I is a party to this case and “is not a proper amicus” participant. Pet’r’s
Answer to Amicus Curiae Br. of L&I at 1 n.1. Numrich further contends, “This case was
not investigated by the Seattle Police Department, the King County Sheriff’s Office, or
any other law enforcement agency. L&I was the law enforcement agency in this case.”
Pet’r’s Reply to Answer to Mot. To Strike Amicus Curiae L&I Br. at 4; see also CP at 1-9 (information levying criminal charges against Numrich and statement of probable cause
from L&I investigating officer setting out the investigative history). Numrich relies on
the fact that an L&I investigator provided a certification of determination of probable
cause, but this does not make L&I the prosecutor’s agent or bar it as an amicus. L&I is a
separate state agency charged with promulgating safety regulations and investigating and
enforcing compliance with those regulations. It is not an arm of the prosecutor. Nor is
L&I the sole source of information for the State’s charges. The record also contains a
joint investigation report utilizing resources from the attorney general’s office and the
32
No. 96365-7 (consol. w/ 96566-8)
prosecutor’s office, describing investigation methodologies and lists of interviewees and
potential witnesses concerning the workplace fatality at issue. CP at 458-68.
Numrich does not convince us that L&I is “a party” as he contends, and the
agency’s amicus brief is useful to the court. Numrich’s motion to strike L&I’s amicus
brief and his related motion to supplement the record are denied.
CONCLUSION
We hold that the trial court did not err in denying the employer’s motion to
dismiss the second degree manslaughter charge. We hold that the trial court did not err in
granting the State’s motion to amend the information to add an alternative first degree
manslaughter charge. We hold that the trial court did not err in awarding sanctions
against the State. Further, we deny Numrich’s request for fees on appeal. And finally,
we deny Numrich’s motion to strike amicus brief of L&I and Numrich’s related motion
to supplement the record, which were passed to the merits. With these holdings, we
remand to the trial court for further proceedings.
33
No. 96365-7 (consol. w/ 96566-8)
Madsen, J.
WE CONCUR:
34
State v. Numrich, No. 96365-7 (González, C.J., concurring in part and dissenting in part)
No. 96365-7
GONZÁLEZ, C.J. (concurring in part and dissenting in part) – I agree with the
majority that the trial court properly denied Numrich’s motion to dismiss the
second degree manslaughter charge. I also agree with the majority that the trial
court did not abuse its discretion in granting the State’s motion to amend to add an
alternative charge of first degree manslaughter. I disagree, however, that sanctions
against the State are warranted. A trial court may only impose sanctions after
making an express finding of bad faith or where conduct “ʻtantamount to bad
faith’” can be inferred from the record. State v. Gassman, 175 Wn.2d 208, 211,
283 P.3d 1113 (2012) (internal quotation marks omitted) (quoting State v. S.H.,
102 Wn. App. 468, 474, 8 P.3d 1058 (2000)). The State’s conduct here does not
meet that standard. Therefore, the trial court abused its discretion in imposing
sanctions. I respectfully dissent in part.
I recognize that whether to impose sanctions lies within the discretion of the
trial court and will not be reversed absent an abuse of that discretion. Magaña v.
Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P.3d 191 (2009) (quoting Mayer v.
1
State v. Numrich, No. 96365-7 (González, C.J., concurring in part and dissenting in part)
Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)). Abuse of discretion is
met where the exercise of discretion is manifestly unreasonable or based on
untenable grounds or reasons. Id. at 582-83 (quoting Wash. State Physicians Ins.
Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)); see
also Gassman, 175 Wn.2d at 210. A reviewing court will uphold sanctions if the
record demonstrates “conduct that was at least ‘tantamount to bad faith.’”
Gassman, 175 Wn.2d at 211 (internal quotation marks omitted) (quoting State v.
S.H., 102 Wn. App. at 474). “Bad faith” conduct is “willfully abusive, vexatious,
or intransigent tactics designed to stall or harass.” Id. Mere carelessness is not
enough; the action must be purposeful. Id. at 213.
Nothing in the trial court’s detailed order amounts to a finding of bad faith,
and to the extent the majority suggests that a finding of intentional action amounts
to bad faith, I respectfully disagree. Instead, the order establishes the trial court’s
understandable vexation at the State for failing to give notice of the intent to
amend the charges at the beginning of the interlocutory appeal process. Nor do I
find bad faith in this record. The trial court confirmed there was no evidence that
the amendment was vindictive. CP at 471. The lack of courtesy shown by the
State’s late amendment does not meet the willfully abusive standard required to
impose sanctions.
I would reverse sanctions. Accordingly, I respectfully dissent in part.
2
State v. Numrich, No. 96365-7 (González, C.J., concurring in part and dissenting in part)
3
State v. Numrich (Phillip Scott), No. 96365-7
No. 96365-7
GORDON McCLOUD, J. (dissenting)—This court adopted the generalspecific rule many years ago as a tool of statutory interpretation. The rule provides
that “‘where a special statute punishes the same conduct which is [also] punished
under a general statute, the special statute applies and the accused can be charged
only under that statute.’” State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237
(1984) (quoting State v. Cann, 92 Wn.2d 193, 197, 595 P.2d 912 (1979)).
This judicially created general-specific rule protects the roles of all three
branches of state government: it provides the courts with a tool to “preserve the
legislature’s intent to penalize specific conduct in a particular, less onerous way
and hence to minimize sentence disparities resulting from unfettered prosecutorial
discretion.” State v. Albarran, 187 Wn.2d 15, 20, 383 P.3d 1037 (2016) (emphasis
added) (footnote omitted) (citing Shriner, 101 Wn.2d at 581-83); see also State v.
Danforth, 97 Wn.2d 255, 259, 643 P.2d 882 (1982) (general-specific rule prevents
the “impermissible potential usurpation of the legislative function by prosecutors”
by taking away their authority to charge harsher, more general statutes when the
legislature has prescribed more lenient, more specific punishments).
1
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
For that reason, we have traditionally used the general-specific rule in a
commonsense and contextual manner rather than in a hypertechnical manner.
Specifically, we use “[t]he general-specific rule [as] a means of answering the
question: Did the legislature intend to give the prosecutor discretion to charge a
more serious crime when the conduct at issue is fully described by a statute
defining a less serious crime?” Albarran, 187 Wn.2d at 26 (emphasis added). We
compare the subject matter of the general statute with the subject matter of the
specific statute and use that comparison, as well as any relevant historical context
and legislative history, to decide whether the specific statute was designed to
occupy the field of the conduct that it describes, thereby foreclosing prosecution
for more general crimes.
We have not typically focused on the intricacies of matters like the object on
which the mens rea of the two statutes might bear. Yet that is what the majority
does in this case. Majority at 10-11 (focusing on just this point and relying on
State v. Gamble, 154 Wn.2d 457, 468-69, 114 P.3d 646 (2005)—which was not a
general-specific rule case—as outcome determinative).
I disagree with this approach. The majority’s hypertechnical test is not the
test that our seminal general-specific decisions adopt.1 And it does not preserve
1
Indeed, it is not the approach that we adopt in other areas, either. E.g., Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (when applying the
2
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
the values that our seminal general-specific decisions were designed to protect.
Our case law compels us to apply the general-specific rule in a commonsense and
contextual manner, with a view toward advancing the separation-of-powers goals
that it was designed to protect. When that latter approach is applied, it compels the
conclusion that the specific WISHA 2-homicide statute prevails over the general
manslaughter statute in the factual scenarios that it describes.
I therefore respectfully dissent.
I. THE MAJORITY’S TEST IS NOT THE TEST THAT OUR SEMINAL
GENERAL-SPECIFIC DECISIONS ADOPTED
The majority’s test is not the test that our seminal general-specific decisions
applied. The majority homes in on the objects of mens rea in each statute to isolate
a theoretical situation that could constitute WISHA-homicide but not
manslaughter. But our foundational cases in this area look to the overall scope of
the two statutes and historical context to determine whether a specific statute
occupies the field of prosecution.
prerequisites to collateral estoppel in a criminal case, the Supreme Court has held that they are “not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality”); State v. Tili, 148 Wn.2d 350, 361, 60 P.3d 1192 (2003) (adopting Ashe’s “realism and rationality” approach in Washington).
2
Washington Industrial Safety and Health Act of 1973, ch. 49.17 RCW.
3
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
In 1960, for example, we recognized that prosecutors must charge specific,
more lenient forms of homicide when they are available. State v. Collins, 55
Wn.2d 469, 348 P.2d 214 (1960). In Collins, the defendant had killed a pedestrian
“by means of a motor vehicle,” and the State charged “general manslaughter,”
notwithstanding the available “negligent homicide by means of a motor vehicle”
statute. Id. at 469 (citing former RCW 46.56.040 (1937); former RCW 9.48.060
(1909)). Rather than break down mens rea elements into component parts, we
analyzed the statutory and historical context.
We found that the mens rea elements of the two statutes differed—
manslaughter required proof of “ordinary negligence,” while negligent homicide
required more than that—it required recklessness. Id. at 470 (citing State v.
Hedges, 8 Wn.2d 652, 113 P.2d 530 (1941); State v. Partridge, 47 Wn.2d 640, 289
P.2d 702 (1955)). We ruled that even if the State could not prove the heightened
recklessness mens rea of negligent homicide, it must still proceed under that
specific homicide statute if the subject matter was homicide with a motor vehicle.3
3
We made this concept even clearer in Shriner. In Shriner, the specific “failure to return a rental car” statute contained an element that was missing from the general theft statute: the element that the rental agency must have sent a written demand letter to the defendant to return the car. 101 Wn.2d at 582-83. The record in Shriner did not reveal whether such a demand letter had ever been sent. Nevertheless, we required the State to charge under the specific rental car statute—even if it couldn’t prove all the elements of the crime. Id. We came to this conclusion because the “creation of a specific statute shows a legislative intent that persons who perform the type of acts to which it is directed
4
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
Id. Effectively, the more recent, more specific statute occupied the field of
prosecution for that particular type of killing.
This court in Collins relied largely on the historical context of the specific
statute’s passage to come to this conclusion. We explained that the legislature had
recognized that no prosecutor had ever obtained a conviction of manslaughter for a
homicide caused by recklessness or drunk driving—and that manslaughter statute
was enacted in 1854. Id. We concluded that the legislature had responded to that
110-year dearth of convictions by providing prosecutors with a more useful
enforcement tool—one that didn’t call reckless driving “manslaughter,” one that
prosecutors would be willing to charge, and one that jurors would be willing to
accept:
The manslaughter statute was first passed in 1854, which was prior to
the aggravated problem of motor vehicle traffic that characterizes our times.
The prosecuting attorneys throughout the state found a growing jury
reluctance to convict automobile drivers under the manslaughter statute due
to the connotations of the word ‘manslaughter.’ A group of them went before
the 1937 legislature and successfully urged the passage of a special statute
under which they could charge homicide by means of a motor vehicle.
Id. Based on this context, we held “that in all cases where the negligent homicide
statute is applicable, it supersedes the manslaughter statute.” Id.
. . . should be punished under the specific statute or not at all.” Id. at 583 (emphasis added).
5
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
We have the exact same historical context here. Until this case, no
prosecutor in Washington had ever filed criminal manslaughter charges against an
employer for an on-the-job death, despite the fact that a manslaughter statute had
been on the books for over 100 years. Clerk’s Papers at 18-19. The legislature
responded by enacting the WISHA-homicide statute as part of the full WISHA law
in 1973. LAWS OF 1973, ch. 80. The WISHA-homicide statute was thus a part of
WISHA since the beginning and remains there largely unchanged to this day (with
the exception of higher penalties). Id. § 19(3); RCW 49.17.190(3).
The majority acknowledges this history but concludes that the legislature has
not affirmatively “expressed an intent to preclude Washington prosecutors from
bringing homicide charges against employers under Washington State law after a
workplace death has occurred.” 4 Majority at 16. But we have never required
specific legislative direction to invoke the general-specific rule.5 To do so would
4
The majority notes that our state legislature modeled WISHA on the federal Occupational Safety and Health Act of 1970, 29 U.S.C. ch. 15, which avoided preemption of state criminal laws. Majority at 15-16. But Congress’ intent is irrelevant to application of our state’s general-specific rule. The general-specific rule is designed to effectuate a single legislature’s intent when it passes multiple criminal statutes that proscribe the same conduct. See Albarran, 187 Wn.2d at 20. Federal Congressional intent not to preclude state criminal enforcement by separate sovereigns has nothing to do with this analysis.
5
Though we implied this might be required in State v. Conte, which relied on numerous other factors to conclude that the rule did not apply—most notably, the fact that one statute there was criminal while the other was civil. 159 Wn.2d 797, 808, 154
6
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
invert our usual analysis and would create a presumption against use of the
general-specific rule. Instead, we have used the rule itself as a tool to determine
legislative intent. See, e.g., Shriner, 101 Wn.2d at 583; State v. Walls, 81 Wn.2d
618, 623, 503 P.2d 1068 (1972).
Like the 1937 legislature that enacted the driving-specific negligent
homicide statute in Collins, the 1973 legislature was trying to give prosecutors,
who had been unwilling to charge manslaughter or murder for a particular type of
death, a misdemeanor tool to incentivize charging. Like the court in Collins, we
should require prosecutors to use that new specific statute, drafted to control that
specific situation.
We took a similar contextual approach in Walls, which the majority also
discusses. Majority at 12. As the majority notes, Walls held that where the
defendant was accused of using a credit card without permission to “pay” for a
meal at a restaurant associated with a hotel, the State could not use the general
felony larceny statutes, even though they fit that crime. Instead, the State was
limited to charging under the specific “defrauding an innkeeper statute,” which
P.3d 194 (2007). Additionally, the specific statute at issue in Conte expressly allowed for “‘any other remedies provided by law.’” Id. (quoting RCW 42.17.390); see also In re Pers. Restraint of Taylor, 105 Wn.2d 67, 70, 711 P.2d 345 (1985) (similarly declining to apply the general-specific rule where the statutory “language clearly indicate[d] that the Legislature did not intend . . . to preempt prosecution under” the general statute).
7
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
was part of a “‘complete act’ dealing with the liability and protection of hotels,
inns, and lodging houses, including the provision making the defrauding of such an
establishment a gross misdemeanor.” Majority at 12 (citing Walls, 81 Wn.2d at
623).
The majority neglects to mention that if we read the general and specific
statutes in Walls very closely, we will find that it is possible to violate the specific
statute, RCW 19.48.110,6 with no mens rea at all; the general larceny statute,
however, required a mens rea of willfulness or intent. 81 Wn.2d at 620-21. 7 Thus,
it was possible to violate the specific statute without violating the general statute.
6
As quoted in Walls, one of the specific statutes concerning defrauding an innkeeper, RCW 19.48.110, provided:
“Any person who shall wilfully obtain food, money, credit, lodging or
accommodation at any hotel, inn, boarding house or lodging house, without paying
therefor, with intent to defraud the proprietor, owner, operator or keeper thereof; or
who obtains food, money, credit, lodging or accommodation at such hotel, inn,
boarding house or lodging house, by the use of any false pretense; or who, after
obtaining food, money, credit, lodging, or accommodation at such hotel, inn,
boarding house, or lodging house, removes or causes to be removed from such
hotel, inn, boarding house or lodging house, his or her baggage, without the
permission or consent of the proprietor, manager or authorized employee thereof,
before paying for such food, money, credit, lodging or accommodation, shall be
guilty of a gross misdemeanor.”
81 Wn.2d at 621-22 (emphasis added) (quoting LAWS OF 1915, ch. 190).
7
The Walls court quotes the relevant general larceny statute as follows; I have placed the emphasis on the mens rea:
Every person who, with intent to deprive or defraud the owner thereof—
8
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
Nevertheless, we held that the specific and general statutes were concurrent,
and that the State could therefore charge only under the specific ones.8 Id. at 623.
We did that because we looked at the statutes’ language in a commonsense manner
and the specific statute’s enactment in historical context; we then concluded that
that history and context showed that the legislature intended the specific statute to
be the exclusive criminal enforcement tool for the conduct it described. In other
(2) Shall obtain from the owner or another the possession of or title to any
property, real or personal, by color or aid of any order for the payment or delivery
of property or money or any check or draft, knowing that the maker or drawer of
such order, check or draft was not authorized or entitled to make or draw the same,
or by color or aid of any fraudulent or false representation, personation or pretense
or by any false token or writing or by any trick, device, bunco game or fortunetelling; or
Steals such property and shall be guilty of larceny.
81 Wn.2d at 620 (emphasis added) (quoting RCW 9.54.010).
8
Since Walls, the Court of Appeals has taken a similar approach to the generalspecific rule. In State v. Thomas, the court required the State to pursue specific custodial interference charges rather than general unlawful imprisonment charges—despite the same type of differing “objects of mens rea” at issue in this case. 35 Wn. App. 598, 604, 668 P.2d 1294 (1983) (unlawful imprisonment required that the defendant “‘knowingly restrain[] another person’” whereas custodial interference required that the defendant “‘know[] that he has no legal right’” to interfere with custody (quoting RCW 9A.40.010(1); 9A.40.050(1))).
9
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
words, we came to the opposite conclusion from the majority in a factually
comparable situation.
Why did we do that? First, we stated the general-specific rule as “where a
general statute and a subsequent special law relate to the same subject, the
provisions of the special statute must prevail.” Id. at 622 (emphasis added). Then
we determined that the laws covered the same subject, without delving into
distinctions about objects of mens reas that might be important in hypothetical
situations. If we had delved into such distinctions, we would have found that they
existed.
Instead, we focused on context. The Walls court treated legislative history
and the purpose of the full act of which the specific statute formed a part as critical.
We ruled that “the legislature had established a ‘complete act’ dealing with the
liability and protection of hotels, inns, and lodging houses, including the provision
making the defrauding of such an establishment a gross misdemeanor.” Majority
at 12 (quoting Walls, 81 Wn.2d at 623). We came to that conclusion despite the
fact that a close and detailed reading of the general and specific statutes would
have shown that (as described above) one could violate the specific without
violating the general.9
9
I acknowledge that we have occasionally taken a far more technical approach, similar to the one that the majority takes in this case. In Conte, the State charged a group
10
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
Like the “complete” innkeeper statutes in Walls, we have a complete set of
industrial safety and health laws in WISHA. In addition to providing criminal
penalties for safety violations resulting in death, WISHA provides numerous
regulations and restrictions, see RCW 49.17.040 (providing authority to
promulgate safety and health standards, and many exclusive provisions for their
enforcement), .120 (citations), .170 (injunctive remedies), .180 (civil penalties).
When a defendant’s conduct falls under this complete legislatively enacted statute,
prosecutors must use that specific statute’s provisions.
The statutory context also shows that the legislature intended specific
penalties for a specific crime. The legislature attached unique misdemeanor
penalties to criminal violations of WISHA: brief imprisonment and enormous
(higher than most felony) monetary penalties. RCW 49.17.190(3) (allowing six
months’ incarceration and $100,000 in penalties for a first offense). The
of defendants with violating the general criminal statute prohibiting filing of false or forged instruments, the defense argued that the State was limited to charging under the more lenient concealment of campaign finance sources statute, and this court rejected the challenge. 159 Wn.2d at 804-06 (citing and quoting RCW 42.17.120, recodified as 42.17A.435). But in that case, another factor seems to have been outcome determinative: the fact that the concealment of campaign finance sources was a civil, rather than a criminal, statute, and the general-specific rule was not designed for that situation. Id. at 806-07. In addition, in Conte, the civil campaign finance statute expressly allowed for “‘other remedies provided by law’” and there was no indication of legislative intent to “supersede” the general law. Id. at 807 (emphasis omitted) (quoting RCW 42.17.390).
11
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
legislature would not promulgate such specific penalties, tailored to punish
organizational defendants, if it did not want prosecutors to use them.
II. EVEN UNDER THE MAJORITY’S HYPERTECHNICAL ANALYSIS, THE
STATUTES ARE CONCURRENT
The majority acknowledges that the mental state element of the WISHAhomicide statute (willfully and knowingly) will always satisfy the lower mental
state element of the manslaughter statute (recklessly or negligently). Majority at
10 (citing RCW 9A.08.010(2)). It emphasizes, however, the difference in “the
object of the mental state” between the two statutes and holds that that difference
undermines the concurrency between those two statutes. Id. at 10-11. It concludes
that because the misdemeanor statute prohibits willfully and knowingly violating
safety rules and thereby causing death, while the felony manslaughter statute
prohibits negligent or reckless disregard of the possibility of death, the statutes
cannot be concurrent. Id. It does not delve deeply into the legislature’s goal in
enacting the WISHA-homicide statute, the context of the full WISHA enactment,
or the goal of encouraging misdemeanor prosecutions with their high monetary
penalties. It relies on Gamble, 154 Wn.2d 457, a case that never discussed the
general-specific rule, for this limited analysis. Id.
The majority’s position is difficult to reconcile with the general-specific
rule. Gamble did not address the general-specific rule at all. Further, while there
12
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
is a bit more language in the WISHA statute, both statutes require an unbroken
chain of proximate causation from the defendant’s action to the resulting death.
Under the WISHA-homicide statute, the employee death must be caused by the
safety rule violation that the employer knowingly violated. Under the
manslaughter statute, the death must be caused by the defendant’s reckless or
criminally negligent action. In both circumstances, the defendant’s action, with the
requisite mental state, must cause the death.
Given this causation requirement in both statutes, it is basically
inconceivable that a violation of the WISHA-homicide statute would not also
amount to a violation of the manslaughter statute. The reason is that if a defendant
willfully and knowingly violates a safety regulation, and “that [very] violation”
itself “caus[es] death,” then the chances are pretty high that that defendant also
disregarded that very risk of that death. 10 Thus, even with alternate mens rea
10
In other words, if the violation did not proximately cause the work site death, then there would be no criminal liability under either the WISHA-homicide or manslaughter statutes (because causation is an element of both). But if the violation did proximately cause the workplace death, then there could be criminal liability under both, because the proximate cause link will only exist where the outcome (death) was sufficiently predictable and direct. See State v. Frahm, 193 Wn.2d 590, 600, 444 P.3d 595 (2019) (Whether a “superseding cause” relieves a defendant of liability “‘depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts which are not reasonably foreseeable are deemed superseding causes.’” (internal quotation marks omitted) (quoting Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998))). How could a dangerous condition addressed by a safety regulation give rise to a foreseeable death without negligence as to the risk of that death?
13
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
objects, the “general statute will be violated in each instance where the special
statute has been violated.” Shriner, 101 Wn.2d at 580. This is all that is required
for concurrency.
The majority even seems to acknowledge that functionally, every WISHA
violation will result in a manslaughter violation as well. Majority at 13-14 (“[I]t is
not unusual in criminal law that multiple statutes can be violated by the same set of
facts. Whether the State prevails will depend on whether it can prove the elements
of the crime.”). This reasoning sanctions duplicative charging, even in a situation
where the legislature did not intend that outcome. That would dismantle the
general-specific rule’s purpose: judicial recognition of a legislative effort to cabin
prosecutorial discretion.
CONCLUSION
The majority’s overly technical concurrency analysis abandons the generalspecific rule’s fundamental purposes and prevents its application in all but the most
particular and unusual scenarios. I would look to the context of this WISHAhomicide statute as part of a complete WISHA act designed to address workplace
safety issues and penalties, and to incentivize charging in an undercharged area.
That context shows that the legislature promulgated specific penalties for the
specific offense Numrich allegedly committed. I would therefore hold that just as
14
State v. Numrich (Phillip Scott), No. 96365-7
(Gordon McCloud, J., dissenting)
in Walls, Collins, and Shriner, the State must charge Numrich under the specific
statute—or not at all.
I respectfully dissent.
15