Phillip John Casali v. State of Washington

• Court: Court of Appeals of Washington
• Decided: August 1, 2024
• Docket: 39426-3
• Status: Unpublished

Opinion

FILED August 1, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

PHILLIP JOHN CASALI, ) ) No. 39426-3-III Appellant, ) ) v. ) UNPUBLISHED OPINION ) STATE OF WASHINGTON, ) ) Respondent. )

FEARING, J. — The State appeals from the Asotin County Superior Court’s

restoration of firearm rights to petitioner Phillip John Casali. The State argues that a

former venue statute precluded Casali from filing his petition for restoration in Asotin

County. Casali, an Idaho resident convicted of a disqualifying crime in Idaho, in turn,

challenges the constitutionality of the venue statute. We reverse the restoration of rights

and direct dismissal of the suit because of Casali’s failure to give notice to the

Washington State Attorney General’s Office of his constitutional challenge to the former

Washington statute.

FACTS

In 1998, the State of Idaho convicted Phillip John Casali with delivery of

marijuana. Casali, now released from incarceration for more than five years, resides in

Idaho. He regularly visits Asotin County for shopping, medical appointments, No. 39426-3-III Casali v. State

entertainment, and visits with friends. Under Washington law, Casali’s Idaho conviction

precludes him from possessing a firearm in the State of Washington. RCW 9.41.040.

Since his release from confinement in Idaho, Phillip John Casali has gone without

any convictions in any jurisdiction. He has not been involuntarily committed for any

mental health illness. Washington law, before July 23, 2023, permitted one to restore his

firearm rights under limited circumstances, including residing in the community for five

consecutive years without a conviction prohibiting firearm possession. RCW 9.41.041.

PROCEDURE

On October 18, 2022, Phillip John Casali filed a petition, in Asotin County

Superior Court, to restore his right to possess firearms in the state of Washington. Casali

has never given notice of his petition to the Washington State Attorney General’s Office.

At the time of the filing of the petition and at the time of the superior court’s

review of the petition, RCW 9.41.040(4)(b) contained a venue clause for the filing of a

petition to restore firearm rights:

(b) An individual may petition a court of record to have his or her right to possess a firearm restored under (a) of this subsection only at: (i) the court of record that ordered the petitioner’s prohibition on possession of a firearm; or (ii) the superior court in the county in which the petitioner resides.

Under this statute, venue for Phillip John Casali’s petition lay only in the state of Idaho,

with the consequence that Casali, despite wishing to hunt in Washington, could not

2 No. 39426-3-III Casali v. State

restore his firearm rights in this state. The legislature has subsequently repealed the

venue provision of the statute.

Phillip John Casali argued before the superior court that the venue requirement of

the former RCW 9.41.040(4)(b) (2022) breached the Privileges and Immunities Clause of

Article IV of the U.S. Constitution, the equal protection guarantees of the Fourteenth

Amendment to the U.S. Constitution, and article I, section 12 of the Washington

Constitution.

The superior court granted the petition over the State’s objection. The State

appeals the order restoring Phillip John Casali’s firearm rights.

As appendix A to his brief, Phillip John Casali attached findings of fact and

conclusions of law from Nathan Drake King v. State, another Asotin County Superior

Court decision addressing the same subject matter. The State filed a motion to strike the

appendix, because the pleadings from the other superior court case were not part of the

record below. Our court commissioner denied the motion to strike. The State sought

modification of the commissioner’s ruling before this panel of judges. We deferred

ruling on the motion to strike until issuing our decision resolving the appeal. Because of

our disposition of the appeal, we do not address the motion.

After the parties filed their respective briefs, this court asked the parties to answer

the following questions:

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1. Did [Phillip John] Casali, during the pending of the case before the superior court, give notice to the State Attorney General’s Office pursuant to RCW 7.24.110? 2. Must [Phillip John] Casali have given the State Attorney General’s Office notice of his petition and given the Office an opportunity to intervene and litigate the constitutionality of former RCW 9.41.040? 3. If the answer to question 2 is yes, must this court dismiss the appeal?

Letter from Court Clerk Tristen Worthen, Division III of the Washington State Court of

Appeals, No. 39426-3-III, (May 7, 2024). In response to this court’s letter, Phillip John

Casali and the State of Washington filed a stipulation that, during this lawsuit before the

Asotin County Superior Court, Casali gave no notice of the pending litigation to the

Washington State Attorney General’s Office. Each party filed a supplemental brief

arguing that the law did not require notice because the nature of Casali’s action was not

one for declaratory judgment.

LAW AND ANALYSIS

We disagree with the parties on the answer to whether Phillip John Casali needed

to serve the Attorney General’s Office with notice of this suit. Therefore, we decline to

address the merits of the appeal and direct the superior court to dismiss Casali’s petition

because of his failure to serve the Attorney General’s Office.

RCW 7.24.110, a section of Washington’s Uniform Declaratory Judgment Act,

governs our decision. The statute recites:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the

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declaration[.] . . . In any proceeding [in] which . . . the statute . . . is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.

RCW 7.24.110 requires notification to the state attorney general of any constitutional

challenge to state legislation. Jackson v. Quality Loan Service Corp., 186 Wn. App. 838,

846, 347 P.3d 487 (2015). Service on the Attorney General’s Office is mandatory.

Kendall v. Douglas, Grant, Lincoln, and Okanogan Counties Public Hospital District No.

6, 118 Wn.2d 1, 11-12, 820 P.2d 497 (1991); Camp Finance, LLC v. Brazington, 133

Wn. App. 156, 160, 135 P.3d 946 (2006). A failure to notify the office is procedurally

deficient, and the court must dismiss the suit on that ground alone. Jackson v. Quality

Loan Service Corp., 186 Wn. App. 838, 846 (2015).

The legislature enacted RCW 7.24.110 to protect the public, should the parties be

indifferent to the result. Clark v. Seiber, 49 Wn.2d 502, 503, 304 P.2d 708 (1956). The

State maintains an interest in the constitutionality of its statutes since legislation affects

the public welfare. Parr v. City of Seattle, 197 Wash. 53, 84 P.2d 375 (1938).

The State and Phillip John Casali contend that Casali brought his action under

RCW 9.41.040(4) for the purpose of restoring his firearm rights and that he does not seek

declaratory relief under RCW 7.24.110. Thus, both parties insist that Casali need not

have served notice on the Attorney General’s Office.

In so arguing, the parties promote substance over form. Their contention fails to

recognize that, regardless of whether Phillip John Casali employs the term declaratory

5 No. 39426-3-III Casali v. State

judgment in his pleadings, he seeks a ruling declaring RCW 9.41.040(4) void on

constitutional grounds for those residing in other states who have foreign state

convictions. Any ruling by this court would hold precedent across the state. The State of

Washington holds an interest in a court proceeding seeking the invalidity of a statute in

whole or in part. The State of Washington holds an interest in regulating gun ownership

and possession by those who were earlier convicted of a felony. State v. Jorgenson, 179

Wn.2d 145, 157, 312 P.3d 960 (2013).

Jackson v. Quality Loan Services Corp., 186 Wn. App. 838 (2015) informs our

decision. Sandra Jackson brought an action challenging the constitutionality of ch. 61.24

RCW but failed to notify the attorney general of the action. This court’s opinion reads

that Jackson did not bring the action under ch. 7.24 RCW. This court, however, held

that, regardless of the caption or name of the action, the statute demands notification to

the state attorney as a mandatory prerequisite to challenge a statute’s constitutionality.

We wrote:

RCW 7.24.110 requires notification to the state attorney general when there is a constitutional challenge to state legislation. Jackson failed to notify the state attorney general. Dismissal of constitutional claims challenging the facial constitutionality of a state statute is appropriate where the state attorney general has not been notified. See Kendall v. Douglas, Grant, Lincoln, and Okanogan Counties Pub. Hosp. Dist. No. 6, 118 [Wn].2d 1, 11-12, 820 P.2d 497 (1991) (service on the attorney general is mandatory and a prerequisite); Camp Fin., LLC v. Brazington, 133 [Wn]. App. 156, 160, 135 P.3d 946 (2006) (attorney general must be served when a party challenges the constitutionality of a statute). Jackson’s attack on the

6 No. 39426-3-III Casali v. State

constitutionality of the DTA [deed of trust act]is procedurally deficient, and thus, dismissal on that ground alone was appropriate.

Jackson v. Quality Loan Services Corp., 186 Wn. App. 838, 846 (2015) (emphasis added)

(alterations added).

Phillip John Casali casts doubt on the vitality of the Jackson ruling. He

emphasizes that the Jackson decision cited Camp Finance, LLC v. Brazington when

writing “[d]ismissal of constitutional claims challenging the facial constitutionality of a

state statute is appropriate where the state attorney general has not been notified.”

Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 846 (2015). According to

Casali, the Jackson court erred when relying on Camp Finance because the Camp

Finance opinion (1) ignores precedent set by our state’s Supreme Court in 1972 on the

issue of whether the notice requirements of RCW 7.24.110 apply to any action

challenging the constitutionality of a state statute and (2) relies on cases that concern only

actions for declaratory relief brought under ch. 7.24 RCW.

In Camp Finance, LLC v. Brazington, 133 Wn. App. 156 (2006), this court wrote:

The Brazingtons deny that the statutes are unconstitutional. But they argue that the question is not properly before the court, in any event, because Camp Finance failed to serve the attorney general. And this is required when a party challenges the constitutionality of a statute. RCW 7.24.110. The question presented is whether the attorney general must be served when a party challenges the constitutionality of a statute. . . .

7 No. 39426-3-III Casali v. State

A plaintiff who seeks to have a statute declared unconstitutional must provide the attorney general with notice of the action. RCW 7.24.110. . . . .... Camp Finance argues that this court has jurisdiction to address the constitutional issues. It argues that the jurisdictional notice requirements in RCW 7.24.110 (requiring notice to the attorney general) do not apply since it raised the constitutional issues in response to a motion for summary judgment, rather than in its complaint. .... We reject Camp Finance’s arguments for two reasons. . . . .... Second, even if Camp Finance had properly pleaded the constitutional challenge, it was required to provide the attorney general with notice of the suit. RCW 7.24.110; Kendall, 118 [Wn].2d at 11-12, 820 P.2d 497; Leonard, 81 [Wn].2d at 481, 503 P.2d 741; Parr, 197 Wash. [53] at 56, 84 P.2d 375 [1938]. The trial court did not, then, have jurisdiction to address the issue, in any event. Kendall, 118 [Wn].2d at 11-12, 820 P.2d 497; see Leonard, 81 [Wn].2d at 480-84, 503 P.2d 741; Parr, 197 Wash. [53], 56. And we also lack jurisdiction for the same reasons. Parr, 197 Wash. 53, 56, 84 P.2d 375 (1938).

Camp Finance, LLC v. Brazington, 133 Wn. App. 156, 160-62 (2006) (some emphasis

added).

Phillip John Casali asserts (1) that the emphasized language above conflicts with

precedent set by the Washington State Supreme Court in Watson v. Washington

Preferred Life Ins. Co., 81 Wn.2d 403, 502 P.2d 1016 (1972), and (2) that, in citing

Kendall, Leonard, and Parr, the Camp Finance opinion omits the fact each of the

challengers to a Washington statute sought a declaratory judgment under ch. 7.24 RCW.

So, we chase Casali’s argument further by reviewing the four cases.

8 No. 39426-3-III Casali v. State

In Watson v. Washington Preferred Life Insurance Co., 81 Wn.2d 403 (1972), the

insurance company challenged the trial court’s jurisdiction on the ground that James

Watson’s attack on a state statute constituted a declaratory judgment action and therefore

he had to serve the attorney general with notice of the action, as required by

RCW 7.24.110. The Washington State Supreme Court held that Watson did not need to

abide by the notice requirements of RCW 7.24.110 because he did not bring an action for

declaratory relief. The Court reasoned:

The distinctive characteristic of a declaratory judgment action is that it determines the rights of parties to a justiciable controversy before a wrong is committed or a loss incurred. For this reason such actions are clearly denominated as such from commencement and, in fact, the usual attack against declaratory judgments is that the plaintiff has an adequate remedy at law. See Sorenson v. Bellingham, 80 Wn.2d 547, 496 P.2d 512 (1972). The lack of an adequate remedy at law is a prerequisite to the right to a declaratory judgment. Hawk v. Mayer, 36 [Wn].2d 858, 220 P.2d 885 (1950); Kahin v. Lewis, 42 [Wn].2d 897, 259 P.2d 420 (1953). Appellant has not brought this action as a declaratory judgment action. Neither has it been so treated by the trial court. To follow respondent’s argument to its logical conclusion would require courts to consider as a declaratory judgment action any action in which a party challenges the constitutionality of a statute.

Watson v. Washington Preferred Life Insurance Co., 81 Wn.2d 403, 407-08 (1972). This

reasoning establishes that the notice requirement of RCW 7.24.110 applies when one

brings an action for declaratory relief and the trial court treats the action as such.

In Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Public Hospital

District No. 6, 118 Wn.2d 1, 11 (1991), taxpayers of Douglas, Grant, Lincoln and

9 No. 39426-3-III Casali v. State

Okanogan Counties challenged the constitutionality of a state statute in an action brought

under ch. 7.24 RCW. The Washington State Supreme Court recognized that, when

arguing before the trial court, the taxpayers, in their complaint, insisted that they only

indirectly challenged the constitutionality of the state statute, but also insisted that the

statute was facially invalid. The Supreme Court held that, having challenged the

constitutionality of the statute, the taxpayers were required by RCW 7.24.110 to serve the

attorney general with a copy of the proceeding. Kendall v. Douglas, Grant, Lincoln &

Okanogan Counties Public Hospital District No. 6, 118 Wn.2d 1, 11 (1991).

In Leonard v. City of Seattle, 81 Wn.2d 479, 503 P.2d 741 (1972), Samuel

Leonard brought an action for declaratory judgment under ch. 7.24 RCW arguing that

former RCW 41.20.110 was unconstitutional. He did not serve the attorney general with

notice of the action. Because the Attorney General’s Office waived the requirement of

such notice in open court, the Supreme Court of Washington held that Leonard’s failure

to serve the attorney general did not warrant dismissal on jurisdictional grounds.

In Parr v. City of Seattle, 197 Wash. 53, 56 (1938), the plaintiffs brought an action

under ch. 7.24 RCW in which they challenged the constitutionality of a Seattle city

ordinance concerning licensing of devices. They did not serve the attorney general with

notice of the proceedings, as required by RCW 7.24.110. Noting that failure, the

Washington State Supreme Court wrote:

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[t]he provisions of the act relative to service of the proceedings upon the attorney general, when the constitutionality of a statute or ordinance is called in question, are mandatory and jurisdictional. In such cases courts cannot proceed until all necessary parties, including the attorney general, are served as provided by the act.

Parr v. City of Seattle, 197 Wash. 53, 56 (1938). The court concluded that, because the

appellants failed to serve notice of the action to the attorney general, the trial court was

without jurisdiction to decide the matter.

Phillip John Casali correctly observes that Kendall, Leonard, and Parr concern

constitutional challenges to statutes brought pursuant to ch. 7.24 RCW. We deem

language in Kendall to control, however, regardless of whether the party suing labels the

action as a declaratory judgment action. To reiterate, the Supreme Court in Kendall held

that, “[h]aving challenged the constitutionality of the statute, they were required by

RCW 7.24.110 to serve the [a]ttorney [g]eneral ‘with a copy of the proceeding.’”

Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Public Hospital District No. 6,

118 Wn.2d 1, 11 (1991). The Supreme Court did not limit the application of RCW

7.24.110’s notice requirement to only those actions brought for declaratory relief under

ch. 7.24 RCW. The Supreme Court’s decision to remain silent in that respect indicates an

intention for the notice to be given any time the constitutionality of a statute is

challenged, regardless of whether the action was brought under ch. 7.24 RCW.

11 No. 39426-3-III Casali v. State

Assuming Watson v. Washington Preferred Life Insurance Co. and Kendall to be

inconsistent, the Supreme Court decided Kendall last.

The State argues that, if RCW 7.24.110 demands notification to the Attorney

General’s Office any time a litigant challenges the constitutionality of a statute, every

criminal defendant seeking relief by questioning the constitutionality of a statute would

be required to give such notice. The State cites no authority for its argument that the

declaratory judgment act applies to criminal proceedings.

Typically, if one challenges the constitutionality of a state statute and fails to

notify the Attorney General’s Office of the action, the case must be dismissed. Jackson

v. Quality Loan Service Corp., 186 Wn. App. 838, 846 (2015). Nevertheless, as

illustrated in Leonard v. City of Seattle, failure to provide such notice does not warrant

dismissal when the office waives the notice requirement in open court. Our record shows

no waiver by the Attorney General’s Office.

CONCLUSION

We remand to the Asotin County Superior Court to revoke its order restoring

Phillip John Casali’s gun rights and to dismiss Casali’s petition.

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A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Fearing, J.

WE CONCUR:

___________________________ __________________________________ Staab, A.C.J. Cooney, J.