FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE FEBRUARY 25, 2021 SUPREME COURT, STATE OF WASHINGTON FEBRUARY 25, 2021 SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, NO. 96873-0 Respondent, v. EN BANC SHANNON B. BLAKE, Petitioner. Filed :________________ February 25, 2021 GORDON MCCLOUD, J.—Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance. This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal State v. Blake (Shannon B.), No. 96873-0 constitutions, 1 along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power. INTRODUCTION We begin with the rule that state legislatures have the police power to criminalize and punish much conduct. But the due process clauses of the state and federal constitutions limit that power. The key limit at issue here is that those due process clause protections generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime. Unfortunately, that is exactly what RCW 69.50.4013, the strict liability felony drug possession statute, does. And it is the only statute in the nation to do so. We therefore conclude that it violates the state and federal constitutions. To be sure, at one time, it might have been possible for this court to avoid this constitutional issue by interpreting RCW 69.50.4013 as silently including an intent element and thereby saving it from unconstitutionality. But that time has long since passed. First, in 1981, we held that our legislature intended drug possession to be a strict liability felony in State v. Cleppe. 96 Wn.2d 373, 635 P.2d 435 (1981). Then, 16 years ago, and 23 years after Cleppe, we reiterated Cleppe’s 1 WASH. CONST. art. I, § 3; U.S. CONST. amend. XIV. 2 State v. Blake (Shannon B.), No. 96873-0 statutory interpretation holding: that our legislature intended drug possession to be a strict liability felony. State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004). Given the interpretive principles of legislative acquiescence and stare decisis, only the legislature, not the court, can now change the statute’s intent. This court, however, is the one that must evaluate whether that statute comports with constitutional due process guaranties. We have been asked to do that today, and we hold that the statute violates those guaranties. Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction ...
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