State v. Swanson

Houghton, J.

(dissenting) — The majority holds that a

trial court does not have discretion under RCW 9.41.040 to grant or deny a petition for restoration of a person’s right to lawfully own or possess a firearm once a petitioner has satisfied the threshold requirements enumerated in RCW 9.41.040. I respectfully dissent for four reasons.

First, the very fact that RCW 9.41.040 uses the words “may petition,” indicates that the legislature intended to give the trial court discretion to grant or deny firearms petitions. (Emphasis added.) The word “petition” is used as a verb and is not defined in RCW 9.41.040. When a statute does not define a word, we may rely on its ordinary meaning as defined in a dictionary. Budget Rent A Car Corp. v. Dep’t of Licensing, 144 Wn.2d 889, 899, 31 P.3d 1174 (2001).

According to Webster’s, the verb “petition” is defined as “to make a request to” or “to make a request for.” Webster’s Third New International Dictionary 1690 (1969). The logical inference drawn from the legislature’s requiring individuals to request a restoration of their rights is that trial courts may grant or deny those rights. Had the legislature intended that trial courts serve a purely ministerial function and automatically restore petitioners’ rights upon receipt of a petition, the statute would read, “The court shall restore the right to possess a firearm.” Instead, RCW 9.41.040 merely grants petitioners who have met the threshold statutory requirements the right to request a restoration of their rights from a trial court. Once an individual has exercised his or her right to petition, RCW 9.41.040 leaves the decision to grant or deny the petition to the sound discretion of the trial court.

Second, although RCW 9.41.040 does not prescribe specific criteria for courts to follow in granting or denying firearms petitions in the same manner as RCW 9.41.047(3)(a), it does not confer unfettered discretion to trial courts as the majority suggests. RCW 9.41.040(4) was enacted as part of the 1995 Hard Time for Armed Crime Act. Laws of 1995, ch. 129, § 16. The intent of this act is twofold: to deter criminals from possessing deadly weapons during the commission of crimes and to “stigmatize” the possession of firearms by criminals. Laws of 1995, ch. 129, § 1. Thus, trial courts must review firearms petitions with the purpose of deterring criminals from possessing firearms during the commission of crimes and creating a stigma about the possession of firearms by criminals. Here, in accordance with this mandate, the trial court reviewed the police report from the night Sigiel Swanson assaulted his ex-wife, stating that he had threatened his ex-wife with a gun and that she was afraid for her safety because he constantly carries a gun, and determined that he was an unsafe person to be in the community with firearms.

Third, because Swanson was convicted of a domestic violence related crime, the Domestic Violence Prevention Act, chapter 26.50 RCW, also guided the trial court in determining whether to grant or deny Swanson’s petition. Laws of 1991, ch. 301, § 1. In accordance with this act, courts must carry out the intent of the legislature to prevent future acts of domestic violence. Laws of 1991, ch. 301, § 1. Because Swanson threatened his ex-wife with a gun, it was reasonable for the trial court to deny his petition in order to prevent future acts of violence by him.

Finally, the majority correctly states that expressio unius est exclusio alterius commands that RCW 9.41.040 imposes no burden beyond the three enumerated threshold requirements set forth at RCW 9.41.040(4)(b)(ii). But these requirements are merely the threshold requirements that enable an individual to petition for his or her right to own or possess firearms. As such, expressio unius only restricts courts from imposing additional threshold requirements. The doctrine does not apply once an individual has petitioned a court. Accordingly, I would affirm the trial court’s denial of Swanson’s petition.

Review denied at 150 Wn.2d 1006 (2003).