State v. Glas , 147 Wash. 2d 410 ( 2002 )

Alexander, C.J.

(concurring) — I agree with the majority’s determination that the provisions of RCW 9A.44.115 do not apply to the actions of the defendants Sean Glas and Richard Sorrells. In both cases their actions, though reprehensible, took place in public where no expectation of privacy could be expected.

I disagree with the majority only insofar as it chooses to make an extended foray into constitutional waters and conclude that RCW 9A. 44.115 survives the constitutional challenge made by these defendants. Because we have determined that the plain language of the statute has no application to the conduct of these defendants, it is unnecessary for us to determine if the pertinent statute is or is not constitutional. See State v. Rodgers, 146 Wn.2d 55, 60, 43 P.3d 1 (2002) (“[I]t is a well-established rule of judicial restraint that the issue of the constitutionality of a statute will not be passed upon if the case can be decided without reaching that issue.”) (citing State v. Peterson, 133 Wn.2d 885, 894, 948 P.2d 381 (1997) (Talmadge, J., concurring)). We should, in my view, resist the temptation to address the constitutional issues that have been raised by the defendants and decide the two cases before us simply on the basis that the conduct of Glas and Sorrells does not fall within the purview of RCW 9A.44.115.

Johnson, Sanders, and Chambers, JJ., concur with Alexander, C.J.