Washington’s high court is gearing up to let down the state’s incarcerated population.
That’s what one inmate at the Monroe Correctional Complex tells me.
He’s referring to an ongoing legal battle over an April 14, 2020 proclamation by Gov. Jay Inslee that, on its face, seems to waive temporarily what many call the most onerous and tough-to-hurdle procedural barrier in post-conviction criminal litigation: the timebar.
As its name implies, the timebar requires all motions collaterally attacking a judgment and sentence to come within one year; otherwise they will be, well, barred.[i] Regardless of the merits of the underlying claim, if a moving party misses the cutoff—through lack of legal knowledge or just plain bad luck—courts will reject the motion without analysis.
So when Gov. Inslee issued Proclamation 20-47—which “waived and suspended [the timebar] in its entirety, except as otherwise provided herein, until midnight on May 14, 2020″ (emphasis in original)—inmates clamored to get their legal issues heard.
Taking the proclamation at face value, several dozen inmates around the state filed what otherwise would have been untimely motions, raising issues that spanned from ineffective assistance of counsel to insufficient judicial discretion during sentencing.[ii] Without the timebar in place, these inmates hoped they might win relief and, ultimately, release.
Their hope was quickly replaced with disbelief.
Each of these motions, filed in a 30-day period when the timebar was waived, was dismissed as untimely. Division One of the Court of Appeals[iii] explained that the “proclamation was plainly intended to toll the time limit for the benefit of those who would otherwise be unable to meet the one-year deadline due to institutional limits imposed as a result of the COVID-19 emergency. Nothing in the governor’s order remotely suggests that he intended to revive the filing period in cases where the deadline expired long ago.” [iv]
The court did not explain how “entirety,” underlined for emphasis by the governor, does not “remotely suggest” a complete waiver for all motions.
Division Three arrived at the same place—that the proclamation only preserved a defendant’s existing right to collaterally attack a judgment and sentence, but did not revive a right that previously expired—though it took a different route.[v]
Rather than finding that the proclamation “plainly intended” anything, it found that “waived and suspended in its entirety” was rendered ambiguous by the caveat “except as otherwise provided herein,” given that “there is nothing in the proclamation that expressly limits the waiver or suspension.” [vi]
Then, without addressing or even acknowledging the contradiction, the court claimed to find just such a limitation in the proclamation’s prologue—specifically in a single provision stating that “preserving the rights of individuals to petition the court for post-conviction relief is essential to our system of justice, and current statutes also limit an individual’s right to seek such relief.”[vii]
Relying solely on the emphasized portion of this provision, the court held that the proclamation intended only to preserve rights.
Even if its reasoning wasn’t laden with contradictions, however, emphasizing a single clause while ignoring the comma and the clause that follows violates a cardinal rule in construing language: “No intelligent construction of a text can ignore its punctuation.”[viii]
The clause following the comma states that “current statutes also limit” the right to seek collateral relief.[ix] This comma and clause, then, signal that in addition to the concerns raised in the first clause, Gov. Inslee also had another set of concerns he wanted to address.
Yet, by ending its analysis at the comma, treating the comma as if it were a period, the court abandons those additional concerns.
Both of these courts, says one Monroe-based jailhouse lawyer involved in several cases, are supplanting their own vision of sound public policy in place of the governor’s. According to him, the courts identified a casus male inclusus—”a situation unquestionably covered by the explicit words of a statute, but thought [by the interpreter] to be ill-advisedly covered”[x]—and decided to avoid that outcome at all costs, even at the risk of making plain words bear a ridiculous meaning.
It seems these appellate courts just can’t believe the governor would open the door to previously barred claims.
The same jailhouse lawyer points out why this belief isn’t based in fact: Inslee issued Proclamation 20-47 on April 14. A day later, citing the difficulty in “accomplish[ing] the required distancing for individuals incarcerated in jails and correctional institutions,” he executed a mass commutation.
Also that day, he waived numerous statutory provisions to help the Department of Corrections “achieve safe distancing for individuals incarcerated in correctional facilities, by quickly reducing, where possible, the population of incarcerated individuals at Washington State correctional facilities.”[xi]
Given that the governor’s focus was on clearing out, where possible, the number of people in prison, it’s entirely reasonable to assume he wanted inmates with legal claims that—but for a technical procedural limitation—would be set free to be able to litigate those claims. Doing so would further reduce the dangerous levels of overcrowding in correctional facilities.
Several inmates are now, given the strained appellate-court reasoning, seeking review in the Washington Supreme Court.
This court could do several things—one of which is nothing. As the state’s highest court, it has discretion to pick and choose which cases it will hear, meaning that it could simply pass on the issue and leave in place the lower courts’ holdings.
Alternatively, it could accept review and either uphold the previous decisions or, more likely, overturn them.
If the court accepts review, the opinion should write itself. Interpreting statutes—and proclamations, being legislative grants of authority, are quasi-statutes[xii] —begins with the words and their plain meaning.[xiii] The process, then, would start with Webster’s: Waive means “to refrain from pressing or enforcing (as a claim or rule).” Suspend means “to set aside or make temporarily inoperative.” Entirety means “the state of being entire or complete.”[xiv]
As the proclamation “waived and suspended [the timebar] in its entirety,” according to these definitions, the entire timebar was unenforceable and inoperative during the period the proclamation was in effect.
Even in the face of this impregnable reasoning, many Washington inmates doubt the court will side with them. Law is always about balancing interests—picture here the scales of justice—but the balance rarely seems to favor those who, at some point in their lives, made a mistake—picture here an elephant on the scales.[xv]
But perhaps these inmates should put more faith in their supreme court. At the most, the appellate-court decisions reveal that the governor’s proclamation is subject to multiple reasonable interpretations, rendering it ambiguous.[xvi] And the rules of interpretation require that the supreme court resolve this ambiguity in favor of criminal defendants.[xvii]
I’m confident that the court will follow this rule of lenity.
After all, if courts stop following the rules, what separates them from the criminals?
Tomas Keen, currently incarcerated at the Washington State Reformatory, is a recent graduate from the University Beyond Bars]. In the last decade, he has co-developed and co-instructed writing and debate classes for other prisoners while also striving for justice reform as a member of the Concerned Lifers Organization. Once released, he hopes to attend law school before starting a career as an advocate for juveniles and emerging adults in the criminal legal system. He welcomes feedback, both supportive and critical. Tomaskeen310445@gmail.com
[i] There are some exceptions to the timebar, though they are highly restrictive and rarely granted. See Washington’s Revised Code 10.73.090 (timebar) and 10.73.100 (timebar exceptions).
[ii] For an example, see In re the Personal Restrain Petition of Dung Le (WA Court of Appeals, Division One, No. 81568-7-I), arguing that brain-based immaturity mitigates the culpability of emerging-adult offenders and renders it unconstitutionally cruel to sentence them to die in prison.
[iii] Washington’s appellate level comprises three divisions.
[iv] Order Dismissing Petition at 2-3, In re the Personal Restrain Petition of Dung Le, No. 81568-7-I.
[v] In re Millspaugh, __ 2 Wn. App. __ (2020) (Slip Opinion at 1, COA No. 37552-8-III).
[vi] Id. at 2.
[vii] In re Millspaugh, at 2 (emphasis in original).
[viii] Antonin Scalia and Bryan Garner, Reading Law 161 (2012).
[ix] In re Millspaugh, at 2 (emphasis added).
[x] Antonin Scalia and Bryan Garner, Reading Law 11 (2012)
[xi] Proclamation 20-50.
[xii] RCW 43.06.220(2) (legislative grant of authority providing the governor with power to waive and suspend, with certain limitations, any statutory provision), State v. Zack, 2 Wn. App. 667, 413 P.3d 65, 68 (2018) (courts construe proclamations as if they were statutes).
[xiii] Tesoro Ref. and Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 317 (2008).
[xiv] Merriam-Webster’s Collegiate Dictionary 1406, 1259, and 417 (11th ed. 2012).
[xv] The fact that Republicans are associated with elephants is completely coincidental, though it does add some humor to an otherwise trite and tired analogy.
[xvi] State v. Engel, 166 Wn.2d 572, 579 (2009).
[xvii] “Washington courts apply the rule of lenity not only to criminal sanctions, but also to the community custody, probation, and post-conviction context, and to procedural statutes affecting an offender’s rights.” Paysano v. Kitsap County, 186 Wn.2d 465, 470 (2015).