ID=694176DI1
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 69417-6
Title of Case: State of Washington
v.
Helen J Norman et al
File Date: 02/21/2002
Oral Argument Date: 09/11/2001
SOURCE OF APPEAL
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Appeal from Superior Court of Whatcom County
Docket No: 96-1-00804-7
Judgment or order under review
Date filed: 02/23/2000
Judge signing: Hon. David S. Nichols
JUSTICES
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Authored by Barbara A. Madsen
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Faith E Ireland
Bobbe J. Bridge
Tom Chambers
Susan J. Owens
Dissenting: Richard B. Sanders
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Jon C. Komorowski
Assistant Public Defender
Whatcom County Public Def
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Eric M. Weight
311 Grand Ave Ste 305
Bellingham, WA 98225-4007
Philip J. Buri
Brett & Daugert
300 N Commercial St
Bellingham, WA 98227-5008
Counsel for Respondent(s)
David M. Grant
Whatcom County Assistant Pros. Atty.
Whatcom Co Courthouse
311 Grand Avenue
Bellingham, WA 98225
Amicus Curiae on behalf of Attorney General
Jeffrey T. Even
Ofc of Atty Gen
PO Box 40100
Olympia, WA 98504-0100
Dissent by Sanders, J.
No. 69417-6
SANDERS, J. (dissenting)--This case raises basic yet simple jurisdictional
questions of "what" and "where." What is the northern border of our state?
Where, in relation to that border, did these crimes take place?
The former question is of law, not fact. The answer might be found in the
language of our state constitution or the relevant federal law which
preceded it. The latter question is of fact, but that fact is undisputed
here. As the majority states, all crimes occurred north of the 49th
parallel. Majority at 2.
I.
"Forty-Ninth Parallel" Means Forty-Ninth Parallel
A. State Constitution
"Appropriate constitutional analysis begins with the text and, for most
purposes, should end there as well." Malyon v. Pierce County, 131 Wn.2d
779, 799, 935 P.2d 1272 (1997). Judicial interpretation of constitutions
is unnecessary and improper when the constitutional language is facially
unambiguous. State ex rel. O'Connell v. Port of Seattle, 65 Wn.2d 801,
806, 399 P.2d 623 (1965). "It is a cardinal principle of judicial review
and interpretation that unambiguous . . . constitutional provisions are not
subject to interpretation and construction." State ex rel. Evans v. Bhd.
of Friends, 41 Wn.2d 133, 145-46, 247 P.2d 787 (1952); see also State ex
rel. Wash. Nav. Co. v. Pierce County, 184 Wash. 414, 422-23, 51 P.2d 407
(1935) (stating even though desired constitutional interpretation tended to
serve good public purpose and benefit, construction will not be adopted
when contrary to clear language used by framers).
The relevant language of our state constitution is clear and unambiguous.
It plainly identifies the relevant portion of our northern boundary as
"west along said forty-ninth parallel of north latitude." Wash. Const.
art. XXIV, sec. 1. That answers the state constitutional law inquiry: our
northern boundary is the 49th parallel.
B. Federal Law
After detailing the pertinent pre-1889 federal and territorial history, the
majority also arrives at the correct legal conclusion that "at the time the
Enabling Act was passed in 1889, the description of the northern border of
the Washington Territory . . . was, in relevant part, the 49th parallel."
Majority at 13. This is correct because the Enabling Act, the federal law
authorizing Washington's statehood, identified the relevant northern border
of our state by expressly referring to the Washington Territory border "as
at present described." 25 Stat. ch. 180, at 676 (1889). The Organic Act,
the federal law establishing Washington Territory, defined the northern
border of Washington Territory as "the forty-ninth degree of north
latitude." 10 Stat. ch. 90, at 172 (1853). Therefore, the pertinent
federal law which preceded our state constitution leads us to the same
conclusion--the 49th parallel.
C. Scientific and Constitutional History
Instead of concluding the 49th parallel means the 49th parallel, the
majority opines it means the "international border." Majority at 13-14.
The majority is still "not convinced that the framers had a scientific 49th
parallel in mind when drafting the constitution." Id. at 20. Unlike the
majority, I claim no ability to read minds, only the written word. If the
49th parallel has meaning, our job is simply to determine it. I think it
does have meaning, a very precise meaning, and a meaning constant over the
millennia.
Aided by astronomical observations, Greek astronomer Hipparchus of Nicaea,
in the second century B.C., fully developed a system of parallel lines
around a spherical earth at equal intervals from the equator to the two
poles. See Daniel J. Boorstin, The Discoverers 97 (1995). "By using
celestial phenomena common to the whole earth to locate places on the
earth's surface, he set the pattern for man's cartographic mastery of this
planet." Id. Hipparchus divided the earth into 360 sections, roughly 70
miles apart, which later came to be known as "degrees." Id.
Ptolemy, however, is credited for first mapping the world. Ptolemy, in his
Geography, drew on the work of Hipparchus and others, and in fact "may
actually have invented{} the expressions for latitude and longitude." Id.
at 98. Like Hipparchus, he too divided the world into 360 degrees but with
additional subdivisions of minutes and seconds. Id.1
By 1889 the terms "latitude" and "parallel" were used commonly and
exclusively with reference to this precise mathematical meaning. A mid-
19th century dictionary designed "for ready reference and general use"
defined latitude as "the distance of a place from the equator, expressed in
degrees of the earth's circumference." A Dictionary of Science,
Literature, and Art 644 (W.T. Brande ed., 1853). "Parallels of latitude"
meant "small circles parallel to the equator." Id. at 892. In a geography
textbook of the same time, latitude is defined as the:
distance north or south from the equator, and is reckoned in degrees, on a
meridian, towards the poles ; hence the highest latitude is that of 90‡, or
one-fourth of the earth's circumference. The mean length of a degree of
latitude in English miles is 69.05 miles. A degree of any great circle of
the earth is commonly reckoned as equal to 69" miles.
Cornelius S. Cart`e, Elements of Physical and Political Geography 43-44
(1855). Even an abridged dictionary for use in common schools defined
latitude as a "distance north or south from the equator." Joseph E.
Worcester, An Elementary Dictionary of the English Language 169 (1860).
Therefore, contrary to the majority opinion, it appears by 1889 the terms
"latitude" and "parallel" conveyed a precise mathematical construct, even
in common parlance. See also Robert F. Utter, Freedom and Diversity in a
Federal System: Perspectives on State Constitutions and the Washington
Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 509 (1984) (advocating
a textual analysis of the state constitution giving the words used their
common and ordinary meaning in 1889); Bloomer v. Todd, 3 Wash. Terr. 599,
615, 19 P. 135 (1888) (explaining how "{t}he ordinary use of words at the
time when used, and the meaning adopted at that time, is usually the best
guide for ascertaining . . . the intent of any written instrument or law at
the time it was made that is to govern in enforcing it.").
Of course, one may be mistaken when attempting to locate the 49th parallel
on the ground just as a small child may mistake the sum of one and one.2
But that does not render the term ambiguous in the least; it only tests our
skills to find it.
Not that it matters, but it may be of interest that historical evidence
proves our founding generation, even by the mid-19th century, knew the 49th
parallel was not the same as what had been marked on the ground as the
international boundary between the United States and what is now Canada.
As the trial court found and the majority also acknowledges, it was then
understood as a matter of fact the 49th parallel did not equate to the
physical markings on the land. Clerk's Papers (CP) at 51; majority at 5.
As a result, Washington's proposed 1878 constitution referred to the
international border, not the 49th parallel, to define our state's northern
border. See Wash. Const. art. I (1878), reprinted in 10 Wash. Hist. Q. 59
(1919). However, while this same language was proposed to be used in our
now operative 1889 constitution, it was purposefully rejected, the
convention opting for the 49th parallel text instead. See The Journal of
the Washington State Constitutional Convention, 1889, at 334, 849 (Beverly
Paulik Rosenow ed., 1999).
Accordingly, even if we looked behind the meaning of the words used to see
if our framers really meant what they said, the people of Washington
adopted the scientific, and commonly understood, language of "forty-ninth
parallel" purposefully, specifically rejecting alternative proposed
language referencing the international border.
"'A cardinal rule in dealing with constitutions is that they should receive
a consistent and uniform interpretation, so that they shall not be taken to
mean one thing at one time and another thing at another time, even though
the circumstances may have so changed. . . .'" State ex rel. Munro v.
Todd, 69 Wn.2d 209, 214, 417 P.2d 955, 426 P.2d 978 (1966) (quoting State
ex rel. Banker v. Clausen, 142 Wash. 450, 454, 253 P. 805 (1927)).
As noted in an 1855 "physical and political geography" textbook:
The seas, mountains, rivers, and coasts possess the same prominent features
at the present day as in the times of Caesar, of Solomon, or of Abraham;
while the boundaries and extent of nations have been subject to frequent
fluctuations, and human society is ever marked by change and revolution.
Cart`e, supra, at 217. Consider a hypothetical: Suppose the United States
by force of arms liberated British Columbia from Canadian rule. If our
state's northern boundary were defined simply as whatever the international
boundary might be, British Columbia would then seem to automatically become
part of the State of Washington. Would this new international boundary
then be the new "forty-ninth parallel?"
II."Latent" Ambiguity?
The majority attempts to bypass the words of our constitution claiming in a
footnote that the 49th parallel as used in article XXIV, section 1 has a
"latent ambiguity." Majority at 16 n.7. I gather this alleged "latent
ambiguity" is meant to identify words clear on their face but somehow
unacceptable to the majority in meaning. The majority does not provide
citation to any authority, nor does it make any argument whatsoever, that a
"latent ambiguity" is an appropriate vehicle to circumvent clear
constitutional text. In fact, we have never used this inventive term with
reference to application of a fundamental constitutional principle.
By definition "{a} latent ambiguity is one that is not apparent upon the
face of the instrument alone {i.e., a patent ambiguity} but which becomes
apparent when applying the instrument to the facts as they exist." In re
Estate of Bergau, 103 Wn.2d 431, 436, 693 P.2d 703 (1985) (citing Carney v.
Johnson, 70 Wn.2d 193, 422 P.2d 486 (1967); Vadman v. Am. Cancer Soc'y, 26
Wn. App. 697, 615 P.2d 500 (1980); 4 William J. Bowe & Douglas H. Parker,
Page on the Law of Wills sec. 32.7 (rev. ed. 1960) (wills interpretation
context)); see also Brown v. City of Bremerton, 69 Wash. 474, 476-77, 125
P. 785 (1912) (deed interpretation context).
For example, what if my will devised "my Jaguar sports car to my law
clerk"?3 While unambiguous on its face, the language would be latently
ambiguous since I have two law clerks. See also Vadman, 26 Wn. App. at 699-
700; Mark Reutlinger, Wills, Trusts, and Estates 89-90 (2d ed. 1998).
Although my testamentary intent would appear clear by simply reading the
instrument itself, it nevertheless would become unclear in application
which beneficiary really was intended once the instrument was applied. See
also Vadman, 26 Wn. App. at 699-700; Reutlinger, supra, at 89.
Assuming we can properly extrapolate these rules to constitutional
interpretation,4 the "forty-ninth parallel" is not "latently" ambiguous in
any event. This is because, unlike the example above, no hidden confusion
is revealed when applying the "forty-ninth parallel" in the context of this
case. It is a precise mathematical construct with but a single meaning and
universal application. Moreover, it remains undisputed the crimes occurred
above the 49th parallel.5
There also remains a sense of irony in the majority's introduction of this
supposed latent ambiguity. The fact the majority feels compelled to modify
"ambiguity" with the adjective "latent" only proves its belief the term
"forty-ninth parallel" on its face is unambiguous. Why else call the
ambiguity "latent"? I think the majority has other motives: why recognize
a no man's land, even if one truly exists? But the truth is out there,
whether the majority chooses to credit it or not: Fiat justitia et ruant
coeli.6
III.
A Category Mistake of Galactic Magnitude
The majority's attempt to find ambiguity (patent or latent) in the term
"forty-ninth parallel" is premised on the State's argument "there are at
least seven different systems for locating the 49th parallel." Majority at
16 n.7. In attempting this argument, however, the majority commits what is
known as a "category mistake."
English analytical philosopher Gilbert Ryle introduced the phrase "category
mistake" in the mid-20th century to describe a confusion in the attribution
of properties or the classification of things. Gilbert Ryle, The Concept
of Mind 15-22 (1949). As used in legal writing, the category mistake has
been described as "an inappropriate linking of disparate concepts spawned
by grammatical similarities in representation." Joel R. Cornwell, Legal
Writing as a Kind of Philosophy, 48 Mercer L. Rev. 1091, 1117 (1997).
Unfortunately, it is "the lawyer's treasured trope." Id.
The majority makes a category mistake of galactic magnitude when it
attributes ambiguity to "forty-ninth parallel" by reference to differing
methods of determining where the 49th parallel lies on the ground.
Properly understood, "the what" and "the where" are different. On the one
hand, there exists the category of the things themselves, i.e., the
latitudes or parallels of which the 49th obviously is a member. On the
other hand, there exists the category of systems to measure where those
things might be, i.e., the tools we use to locate latitudes or parallels.
These two categories, however grammatically similar they may be, are
distinct and should not be conflated. While we may use differing empirical
procedures to ascertain the location of latitudes, some giving more precise
results than others, those systems of measurement do not create ambiguity
in meaning of the term "forty-ninth parallel" anymore than a child's
mistake in performing addition renders the erroneous sum of one plus one
"ambiguous."
IV.
Conclusion
This case is easier than pi. The 49th parallel can be located to the
decimal. It is precise as logic. It is as pointed as the needle on a
compass. If that term is ambiguous, the language of law is no more than
sand shaped into castles at the arbitrary whim of he (or she) who wears the
black gown.
I fear the majority begins with the result it seeks to impose rather than
reasoning from sound legal principles, known facts, and precise
mathematical formulae to find a result. The memorandum decision of the
trial court, which this majority affirms, speaks volumes about this results-
oriented approach. Dismissing the defense motion to dismiss for lack of
jurisdiction, the trial court states "the defense cannot point to any
intent on the part of the drafters of the Washington State Constitution to
have the northern boundary of the State be inconsistent with the
international boundary except the language of the Constitution itself." CP
at 53 (emphasis added).
Because the "forty-ninth parallel" is our state's northern border as a
matter of law, and because the crimes in this case occurred above the 49th
parallel as a matter of fact, the defendants' motion to dismiss should have
been granted. Accordingly, the trial court must be reversed and this
prosecution dismissed.
I therefore dissent.
1 Measuring latitude also has a long history. The Ancient Greeks figured
out latitudes by observing circumpolar stars. Boorstin, supra, at 48. By
medieval times, sailors used cross-staffs to determine the declination of
the sun above the horizon and then compared those measurements with
astronomic tables in nautical manuals. Id. By approximately the mid-14th
century, one could fix a latitude "to within half a degree or less." Id.
2 I am aware of only a single exception to this rule: When I asked five-
year-old Brien Galbraith, "how much is one and one," he (correctly)
answered "eleven." Even there, however, the problem was with the question,
not the answer.
3 This example serves as further proof of law clerk influence on the
opinion drafting process.
4 Again, I find no such authority to do so.
5 Even if one believes "forty-ninth parallel" somehow is latently ambiguous
and therefore a resort to extrinsic evidence is warranted, considering
sources other than the words the framers expressly used only corroborates
they really meant the 49th parallel to be our northern border. See supra
Part I.C.
6 Let justice be done, though the heavens fall.
ID=694176DI1