129 Wn.2d 652, STATE v. MANUSSIER [No. 61906-9. En Banc.]

Argued January 16, 1996. Decided August 8, 1996.

THE STATE OF WASHINGTON, Respondent, v. GEORGE W. MANUSSIER, Appellant.

[1] Statutes - Initiatives - Validity - Recitation of Amended Section. An initiative of the people, as authorized by CONST. amend. 7, is subject to the CONST. art. II, § 37 requirement that amendatory legislation set forth the statutes they amend in full.

[2] Statutes - Amendment - Recitation of Amended Section - Test. Legislation does not violate the CONST. art. II, § 37 requirement that amendatory legislation set forth the statutes they amend in full if (1) the legislation is so complete in itself that the scope of the rights or duties created or affected by it can be determined without referring to any other statute or legislation and (2) a straightforward determination of the scope of the rights or duties under the existing statutes would not be rendered erroneous by the legislation.

[3] Statutes - Amendment - Recitation of Amended Section - What Constitutes an Amendment. Legislation complete in itself and not requiring reference to other statutes to understand its purpose and meaning is not amendatory legislation subject to CONST. art. II, § 37 -- requiring that amendatory legislation set forth the statutes they amend in full - even if the legislation incidentally or impliedly amends other statutes upon the same subject.

[4] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Recitation of Amended Section. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) - which imposes punishment of life imprisonment without the possibility of parole

upon offenders who are three times convicted of a "most serious offense" -- does not violate the CONST. art. II, § 37 requirement that amendatory legislation set forth the statutes they amend in full.

[5] Constitutional Law - Bills of Attainder - What Constitutes - Test. A bill of attainder is a legislative act that applies to named individuals or easily ascertained members of a group in such a way as to inflict punishment on them without judicial trial. The bill of attainder prohibitions of U.S. CONST. art. I, § 10 and CONST. art. I, § 23 bar the Legislature from singling out disfavored persons and meting out summary punishment for past conduct. Legislation is a bill of attainder if (1) it specifies affected persons, (2) it inflicts punishment on them, and (3) no judicial trial is provided for.

[6] Constitutional Law - Bills of Attainder - What Constitutes - Disfavorable Law. A legislative act does not constitute a bill of attainder merely because it compels an individual or a defined group to bear burdens that the individual or group dislikes.

[7] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Bill of Attainder. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) - which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- is not a bill of attainder and does not violate either U.S. CONST. art. I, § 10 or CONST. art. I, § 23.

[8] Criminal Law - Punishment - Legislative or Judicial Function. The fixing of the penalty or punishment for the commission of a criminal offense is a legislative function. Whatever discretion a trial court has in sentencing a criminal offender is granted by statute.

[9] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Prosecutorial Discretion. The State's discretion under the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- is severely limited and does not constitute an invalid delegation of legislative authority to the executive branch.

[10] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Separation of Powers. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the

punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate the separation of powers doctrine.

[11] Statutes - Initiatives - Validity - Guaranty of Republican Form of Government. The validity of the state initiative process under U.S. CONST. art. IV, § 4, which guarantees to the states a republican form of government, is not an issue for determination within the judicial power.

[12] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Republican Form of Government. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate U.S. CONST. art. IV, § 4, which guarantees to the states a republican form of government.

[13] Constitutional Law - Equal Protection - Different Treatment for Different Persons - In General. The equal protection guaranties of the Fourteenth Amendment and CONST. art. I, § 12 require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.

[14] Constitutional Law - Equal Protection - State and Federal Provisions. The equal protection clause of the Fourteenth Amendment and the privileges and immunities clause of CONST. art. I, § 12 are identical and are construed the same.

[15] Constitutional Law - Equal Protection - Classifications - Minimal Scrutiny - Applicability. An equal protection challenge to a statute affecting a liberty interest, but which does not implicate either a suspect or a semisuspect class, is analyzed under the rational basis test.

[16] Constitutional Law - Equal Protection - Classifications - Minimal Scrutiny - Test. A statute satisfies the rational basis test for analyzing an equal protection challenge if it rests on a legitimate governmental objective and is not wholly irrelevant to achieving that objective.

[17] Constitutional Law - Equal Protection - Classifications - Minimal Scrutiny - Burden of Proof. A party challenging a statutory classification under the rational basis test has the burden of showing that it is purely arbitrary.

[18] Constitutional Law - Equal Protection - Classifications - Minimal Scrutiny - Wisdom and Expediency. The rational basis test for analyzing an equal protection challenge to a statute requires only that the statute's means are rationally related to a

legitimate governmental objective; it does not require that the means chosen is necessarily the best way of achieving that objective.

[19] Constitutional Law - Police Power - Scope - In General. The legislative powers granted by CONST. art. II, § 1 provide broad authority to legislatively determine what the public interest demands and what measures are necessary to protect that interest.

[20] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Equal Protection. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate the equal protection guaranty of either the Fourteenth Amendment or CONST. art. I, § 12.

[21] Criminal Law - Punishment - Cruel Punishment - State Constitution - Independent Interpretation - In General. The CONST. art. I, § 14 proscription of cruel punishment affords greater protection than the Eighth Amendment proscription of cruel and unusual punishment, and each provision is analyzed separately.

[22] Criminal Law - Punishment - Cruel and Unusual Punishment - Scope. The Eighth Amendment proscription of cruel and unusual punishment prohibits both barbaric punishment and sentences disproportionate to the crime committed.

[23] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Cruel and Unusual Punishment. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate the Eighth Amendment proscription of cruel and unusual punishment.

[24] Criminal Law - Punishment - Cruel Punishment - Proportionate to Crime - Factors. A claim that a statutory punishment imposed on a criminal offender is cruel and barred by CONST. art. I, § 14 is analyzed by considering (1) the nature of the offense, (2) the punishment the offender would have received in other jurisdictions, and (3) the punishment meted for other offenses in this jurisdiction.

[25] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability

Act - Validity - Cruel Punishment. Initiative 593, the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate the CONST. art. I, § 14 prohibition of cruel punishment.

[26] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Factors - In General. A court determines whether a state constitutional provision should be interpreted as providing greater protection than its federal constitutional counterpart by analyzing the six nonexclusive factors of State v. Gunwall,  106 Wn.2d 54 .

[27] Constitutional Law - Due Process - State and Federal Provisions - Independent State Interpretation. The CONST. art. I, § 3 guaranty of due process of law provides the same scope of protection as the Fifth and Fourteenth Amendments, and they are all interpreted identically to each other.

[28] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Due Process - Substantive Due Process. The Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- does not violate an offender's substantive due process rights by giving prosecutors undue leverage in the plea bargaining process.

[29] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Construction - Relationship to Habitual Criminals Statute - Procedural Safeguards. The procedural safeguards mandated by the habitual criminals statute -- RCW 9.92.090 -- do not apply to the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law), which imposes punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense."

[30] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Construction - Relationship to Sentencing Reform Act - Procedural Safeguards. The procedural safeguards mandated by the Sentencing Reform Act of 1981 -(RCW 9.94A ) -- apply to the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law), which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense."

[31] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Validity - Due Process - Nature of Act. The Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- is a sentencing law that, together with the Sentencing Reform Act of 1981 (RCW 9.94A ), establishes its own procedures for due process purposes.

[32] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Hearing - Standard of Proof - Validity. For purposes of the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law) -- which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense" -- the preponderance of the evidence standard for proving the existence of prior offenses comports with constitutional due process requirements.

[33] Criminal Law - Punishment - Sentence - Hearing - Right to Jury. A criminal offender has no constitutional right to have a jury determine the appropriate sentence to impose, even if the sentence turns on specific findings of fact.

[34] Criminal Law - Punishment - Sentence - Life Imprisonment Without Parole - Persistent Offender Accountability Act - Hearing - Right to Jury. A criminal offender has no constitutional right to have a jury determine the offender's status as a persistent offender under the Persistent Offender Accountability Act (popularly known as the "three strikes and you're out" law), which imposes the punishment of life imprisonment without the possibility of parole upon offenders who are three times convicted of a "most serious offense."

MADSEN, SANDERS, and JOHNSON, JJ., dissent by separate opinions.

Nature of Action: Prosecution for second degree robbery.

Superior Court: The Superior Court for Pierce County, No. 94-1-01601-8, Bruce W. Cohoe, J., on June 30, 1994, entered a judgment on a plea of guilty and a sentence of life in prison without the possibility of parole. The sentence was based on a statute requiring a sentence of life in prison without the possibility of parole upon

offenders who are three times convicted of a "most serious offense."

Supreme Court: Holding that application of the Persistent Offender Accountability Act, popularly known as the "three strikes and you're out" law, did not violate the defendant's constitutional rights, the court affirms the judgment.

Raymond H. Thoenig of Department of Assigned Counsel; and Kyron J. Huigens, for appellant.

John W. Ladenburg, Prosecuting Attorney, and Barbara L. Corey-Boulet and Michael R. Johnson, Deputies, for respondent.

SMITH, J. - Appellant George W. Manussier appeals his mandatory sentence of life imprisonment without possibility of parole under the "three strikes law" of RCW 9.94A.120 (4) following his plea of "guilty" in the Pierce County Superior Court to second degree robbery. He challenges on various state and federal constitutional grounds the validity of the "three strikes law," enacted by the Legislature in 1994 after approval of Initiative 593 by the people of Washington in 1993. We affirm.

QUESTIONS PRESENTED

The questions presented in this case are whether Initiative 593 (1) was adopted in violation of article II, section 37 of the Washington Constitution; (2) violates Article I, Section 10 of the United States Constitution and article I, section 23 of the Washington Constitution as a bill of attainder; (3) violates the separation of powers doctrine; (4)

violates Article IV, Section 4 of the United States Constitution, which guarantees a republican form of government; (5) violates either the federal Equal Protection Clause, or its counterpart, the privileges and immunities clause of article I, section 12 of the Washington Constitution; (6) violates the Eighth Amendment of the United States Constitution and the cruel punishment clause of article I, section 14 of the Washington Constitution; and (7) violates substantive or procedural due process.

STATEMENT OF FACTS

Initiative 593, commonly referred to as the "three strikes law," was adopted by the voters of this state in November 1993 under the ballot title, "Shall criminals who are convicted of 'most serious offenses' on three occasions be sentenced to life in prison without parole?"^{Footnote 1} The initiative, which took effect on December 2, 1993,«2» amended RCW 9.94A.120by adding a new subsection which requires trial courts to sentence "persistent offenders" to life imprisonment without possibility of parole.^{Footnote 3} A "persistent offender" is defined as one convicted of any felony considered a "most serious offense" under RCW 9.94A.030(21) and who has, in addition, been twice convicted of an offense falling under that category.^{Footnote 4}

A "most serious offense" includes the following: (a) any Class A felony; (b) any Class B felony with a finding of "sexual motivation" as defined by statute; (c) any felony with a deadly weapon finding; and (d) seventeen other named offenses.^{Footnote 5} The statute's mandatory life sentence

applies to any persistent offender "notwithstanding the maximum sentence under any other law."^{Footnote 6}

On April 12, 1994, Appellant Manussier entered a bank in Fife, Washington, handed a teller a note demanding money, and claimed he was armed with a gun and would shoot. After the teller complied with his demand, appellant fled on foot to a nearby restaurant, where he was arrested with the money taken from the bank in his possession.

On April 15, 1994, the Pierce County Prosecuting Attorney charged appellant by information with first degree robbery, a class A felony, in the Pierce County Superior Court.^{Footnote 7} The State also filed a "Most Serious Offense Notice," informing appellant he would be classified as a persistent offender and sentenced to life imprisonment without parole under(RCW 9.94)A. 120(4) if he had twice previously been convicted of most serious offenses.^{Footnote 8} Because he had twice been convicted of first degree robbery in 1985 and 1989,«9» appellant was subject to the "three strikes law" upon his conviction on the 1994 charge.

In the Superior Court, appellant asked the court to declare Initiative 593 unconstitutional on several state and federal constitutional grounds.^{Footnote 10} » He also argued, in the alternative, that Initiative 593 reinstated the former habitual criminal statute,«11» thus entitling him to certain "procedural protections developed under Washington case law."«12» More specifically, appellant claimed he had a right to a jury trial on the issue of prior convictions, and that

the State was required to prove the fact of his convictions beyond a reasonable doubt.^{Footnote 13} » The Pierce County Superior Court rejected both arguments and denied appellant's motion by order dated June 24, 1994.«14» The court, the Honorable Arthur W. Verharen, noted in the order that it would not "impose any additional due process requirements upon the State beyond those which are provided for in the Sentencing Reform Act, RCW 9.94A.010et seq."^{Footnote 15} »

On June 27, 1994, appellant pleaded "guilty" to second degree robbery,^{Footnote 16} » which qualifies as a "most serious offense" under Initiative 593.«17» Although he did not acknowledge his two prior robbery convictions at the time of his plea, on that date he signed a statement on plea of guilty acknowledging that the penalty for this third conviction was a mandatory sentence of life imprisonment without parole.«18» Second degree robbery would otherwise carry a standard range sentence of 15 to 20 months' imprisonment.«19»

At appellant's sentencing hearing, the State offered as proof of his criminal history (1) a certified copy of the verdict form in the 1985 robbery conviction, a certified copy of the judgment and sentence from that case, and the Court of Appeals' affirmance of the conviction; and (2) a copy of the Statement of Defendant on Plea of Guilty in the 1989 robbery case, the warrant of commitment in that case, and a certified copy of the 1989 judgment and sentence.^{Footnote 20} » The State also offered testimony of Washington State Community Corrections Officer Thomas Patdonea,

who stated he knew appellant from the Department of Corrections and that appellant's department file confirmed two prior first degree robbery convictions.^{Footnote 21} » Further testimony was offered by David Cotton, forensic investigation supervisor, Pierce County Sheriffs Department. Mr. Cotton testified he compared a set of fingerprints taken from appellant during booking for the 1994 robbery conviction with prints he took from appellant in court that day, prints on the 1985 judgment, and prints on the 1989 warrant of commitment.«22» He concluded that all prints came from the same person.«23»

Finding that appellant had been convicted of first degree robbery in 1985 and 1989, the trial court concluded he was a "persistent offender" as defined in RCW 9.94A.030(25).^{Footnote 24} » The court, the Honorable Bruce W. Cohoe, then under RCW 9.94A.120(4) sentenced him to life imprisonment without possibility of parole on June 30, 1994,^{Footnote 25} » noting that the court did not have discretion to do otherwise.«26» Appellant then timely filed this appeal.

DISCUSSION

WASHINGTON STATE CONSTITUTION ARTICLE II, SECTION 37

Article II, section 37 of the Washington Constitution declares that "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length." Appellant claims Initiative 593 violates this constitutional provision because it amends RCW 9A.20.021 , the section of the

criminal code providing maximum penalties for all offenses, without referring to the statute.^{Footnote 27} »

[1] While we have not previously ruled on this point, we now conclude that article II, section 37 applies to initiative measures, as well as to acts adopted by the Legislature. In Washington Federation of State Employees v. State, we stated that:

[A]mendment VII [to the state constitution], which established the initiative right, was an amendment to Const. art. II, which concerns legislative authority, and therefore the provisions of article II, including section 19, are applicable to both the legislative and initiative processes.«[28]»

Although in that case we were principally concerned with application of article II, section 19 to the initiative process, our conclusion nevertheless logically extends to section 37 as well. Because we conclude that article II, section 37 applies to Initiative 593, the question now becomes whether the initiative complies with that provision.

[2] This court has set out a two-part conjunctive test for determining whether a law violates section 37: (1) "Is the new enactment such a complete act that the scope of the rights or duties created or affected by the legislative action can be determined without referring to any other statute or enactment?"; and (2) "Would a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment?"^{Footnote 29} » Initiative 593 satisfies this test, at least for application of section 37 of article II.

[3, 4] Applying part one of the test, we conclude Initiative 593 is a complete act capable of being understood without reference to statutes not set forth in its

provisions. The initiative addresses the limited subject of sentencing for "persistent offenders." Every statute amended was set out in full in the initiative.^{Footnote 30} » By defining "persistent offender" in RCW 9.94A.030 (25) and mandating in RCW 9.94A.120(4) a life sentence without parole for such offenders "notwithstanding the maximum sentence under any other law," the initiative completely addresses the scope of the rights affected. There is no need to go beyond the wording of the initiative to determine the penalty for engaging in certain delineated recidivist conduct because the law states its applicability is independent of maximum sentences imposed by any other law.^{Footnote 31} »

Part two of the test is not so easily satisfied. The initiative does affect the law on maximum sentences under RCW 9A.20.021. Under that statute, the maximum penalty for a class A felony is life imprisonment, while the maximum penalty for a class B felony is "a term of ten years."^{Footnote 32} » By mandating a life sentence for persistent offenders, however, Initiative 593 has the effect of increasing from ten years to life imprisonment without parole the maximum sentence for all "most serious" class B felonies.«33»

Notwithstanding this effect on maximum sentences, Initiative 593 still satisfies the second part of the test. This court has "found constitutional the modification of existing law by a complete statute."^{Footnote 34} » A complete act, not revisory in character, is not rendered unconstitutional by article II, section 37, even though it may by implication

operate to change or modify prior acts.^{Footnote 35} » Section 37 "was not intended to prohibit the passage of a law which declared fully its provisions without direct reference to any other act, although its effect should be to enlarge or restrict the operation of some other statutes."«36» Instead, the purpose of section 37 was to "protect the members of the legislature and the public against fraud and deception . . . ,"«37» Initiative 593 is a complete act. Its purpose was not hidden,«38» and its modification of other sentencing laws is readily apparent from a reading of its provisions.«39» Even though the initiative may in some manner affect RCW 9A.20.021, that is not a defect of constitutional magnitude.^{Footnote 40} » Initiative 593 does not violate article II, section 37 of the Washington Constitution.

BILL OF ATTAINDER

Appellant argues that Initiative 593 is a bill of attainder proscribed by United States Constitution Article I, Section 10 and Washington Constitution article I, section 23.^{Footnote 41} » This argument is without merit.

[5, 6] A bill of attainder is a "law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a

judicial trial."^{Footnote 42} » It is "a general safeguard against legislative exercise of the judicial function, or more simply-- trial by legislature."«43» However, a legislative act is not a bill of attainder merely because it compels an individual or a denned group to "bear burdens which the individual or group dislikes . . . ."«44» Such an interpretation would "cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality."«45»

Initiative 593 does not constitute a bill of attainder. Three elements distinguish bills of attainder from constitutionally permissible legislation: (1) legislative infliction of punishment upon (2) specifically designated persons or groups (3) in the absence of the procedural safeguards of a judicial trial.^{Footnote 46} » Not all of these elements are present in the initiative. Like any other sentencing law, it does establish the punishment for commission of certain criminal offenses, in itself a proper legislative function.«47» However, punishment is only imposed upon a judicial determination that those offenses were committed.

[7] In this case, the determination whether appellant committed a third "most serious offense " thus bringing him within the purview of the initiative, was made under

the procedural safeguards of a judicial proceeding.^{Footnote 48} » Also, the initiative does not specifically designate any preexisting class of persons or groups to be punished, nor does it attempt to identify them by past conduct. Only those persons who commit a third "most serious offense" after the effective date of the initiative's enactment are subject to a life sentence. It follows, then, that those persons falling within the initiative's purview do not comprise a targeted, readily identifiable group being subjected to legislative punishment.«49»

SEPARATION OF POWERS

Appellant next claims Initiative 593 violates the separation of powers doctrine by transferring sentencing discretion from judges to prosecutors without providing standards for exercise of that discretion.^{Footnote 50} » This argument, too, is without merit.

[8] Appellant's conclusion that Initiative 593 constitutes an impermissible delegation of sentencing authority rests upon the erroneous premise that sentencing authority is vested solely in the judiciary. It is not. This court has consistently held that fixing penalties for criminal offenses is a legislative, and not a judicial, function.^{Footnote 51} »

In State v. Ammons, for example, the appellant made a similar challenge to the constitutionality of the Sentencing Reform Act of 1981 (SRA),(RCW 9.94 )A. Appellant in

that case argued that the SEA violated the separation of powers doctrine by limiting the trial court's discretion over sentencing, thus infringing upon the judicial power.^{Footnote 52} » This court rejected that argument, stating that appellant "fail[ed] to recognize that the trial court does not have absolute discretion to do whatever it pleases. The trial court's discretion in sentencing is that . . . given by the Legislature."«53» Even if Initiative 593 did give prosecutors complete discretion to determine which defendants should be sentenced under its provisions, that would still not constitute impermissible intrusion upon the judicial power.

[9, 10] The argument might perhaps suggest an unconstitutional delegation to the executive branch of the legislative authority to alter the sentencing process.^{Footnote 54} » But that argument is also without support. This court in State v. Lee rejected a similar challenge to the former habitual criminal statute (RCW 9.92.090), which imposed a life sentence for a defendant's third felony conviction.^{Footnote 55} » In Lee, the appellant claimed RCW 9.92.090 was an unconstitutional delegation of legislative authority to the

prosecutor.^{Footnote 56} » This court rejected that claim, however, holding that "the statute [was] a proper legislative investiture of authority to the executive branch."«57» In reaching that conclusion, the court reasoned that:

RCW 9.92.090 is not a delegation of the legislature's power to determine appropriate punishment for criminal violations. The statute merely vests the prosecution with the power to charge a person with the status of being a habitual criminal. The prosecution must prove its allegations beyond a reasonable doubt. Implicit within the statute is a reasonable standard to govern the prosecuting attorney's exercise of discretion to initiate these proceedings. The decision to prosecute must be based on the prosecutor's ability to meet the proof required by the statute.«[58]»

Prosecutors have no more discretion under Initiative 593 than they had under the habitual criminal statute. Initiative 593, like that statute, does no more than vest the prosecutor with the power to charge a person with the status of being a "persistent offender," much like the charge of being an "habitual criminal" under former RCW 9.92.090. Indeed, prosecutorial discretion is limited under Initiative 593 because sentence enhancement under the initiative applies only to third convictions for a "most serious offense,"^{Footnote 59} » while under the former habitual criminal statute, RCW 9.92.090 , sentence enhancement was available to prosecutors against offenders upon a third conviction for any felony.

REPUBLICAN FORM OF GOVERNMENT

United States Constitution Article IV, Section 4, commonly referred to as the "Guarantee Clause," provides in part that "[t]he United States shall guarantee to every

state in this union a republican form of government . . . ." Appellant argues that the Guarantee Clause is "absolutely incompatible with direct democracy as embodied in the recall, referendum, and initiative schemes . . . ."^{Footnote 60} » Those schemes, appellant claims, violate the ideal of a republican form of government because they allow enactment of laws outside the legislature's deliberative processes which are designed to protect the public from its own imprudent impulses.«61» Reasoning that "the Constitution's reference to 'republican government' is a reference to this sort of deliberative democracy," and that "[d]eliberative democracy is the antithesis of direct democracy,"«62» appellant concludes that the products of direct democracy, including initiative measures, are potentially invalid under the Guarantee Clause.«63»

[11] Appellant's argument challenges the constitutionality of the initiative process itself and thus presents an issue which may be beyond the power of this court to decide. In Pacific States Telephone and Telegraph Company v. Oregon, the United States Supreme Court considered a challenge to the Oregon initiative and referendum process based upon a claim that it was inconsistent with the Federal Constitution's guarantee of a republican form of government.^{Footnote 64} » In that case, the Court held that the issue was political and governmental and not within the judicial power to determine:

As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows that the case presented

is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction.«[65]»

Pacific still represents good law,^{Footnote 66} » and earlier cases decided by this court have been in accord with its holding.«67» Because appellant's argument does not satisfactorily address the power of the court to decide an otherwise political or governmental issue, we decline to rule on it in this case. Even assuming appellant's claim does present a justiciable question, he cites no authority to support his claim that Initiative 593 violates the Guarantee Clause of the Federal Constitution. His argument is based solely upon a law review article by former Oregon Supreme Court Justice Hans Linde in response to an antihomosexual initiative in that state.«68»

In his article, Justice Linde asserts that initiatives falling into any one of five categories should be declared invalid under the Guarantee Clause. These are initiatives which (1) refer to any group in pejorative or stigmatizing terms or exalt one group over another; (2) by their terms are directed against racial, ethnic, linguistic, religious or social groups; (3) are proposed in a historical and political context in which there is no doubt that voters are being asked to choose sides for or against an identifiable group; (4) appeal to majority emotions to impose values that offend the conscience of other groups without being directed

at those groups; and (5) place affirmative legislation in the constitution itself.^{Footnote 69} »

[12] Appellant contends that Initiative 593 falls into categories one and three.^{Footnote 70} » However, the groups to which Justice Linde was referring are those commonly identifiable by race, ethnicity, religion, or other socially identifiable characteristics such as sexual orientation.«71» There is nothing in the article to suggest the author meant to include persons whose only identifiable characteristic is a similar criminal history.

We find Appellant's argument on violation of U.S. CONST. art. IV, § 4 without merit.

EQUAL PROTECTION

[13, 14] Washington Constitution article I, section 12, and the Fourteenth Amendment to the United States Constitution guarantee that persons similarly situated with respect to the legitimate purpose of the law must receive like treatment.^{Footnote 72} » Appellant argues Initiative 593 violates both the state and federal equal protection clauses because its classification is based solely upon recidivism, which does not closely relate to the initiative's stated objective of reducing crime.«73» This court has consistently construed the federal and state equal protection clauses identically and considered claims arising under their scope as one issue.«74»

One of three standards of review has been employed when analyzing equal protection claims.^{Footnote 75} » Strict scrutiny applies when a classification affects a suspect class or

threatens a fundamental right.^{Footnote 76} » Intermediate or heightened scrutiny, used by this court in limited circumstances, applies when important rights or semisuspect classifications are affected.«77» The most relaxed level of scrutiny, commonly referred to as the rational basis or rational relationship test, applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right.«78»

[15-20] When a physical liberty interest alone is involved in a statutory classification, this court applies the deferential rational relationship test.^{Footnote 79} » Under that test, the challenged law must rest upon a legitimate state objective, and the law must not be wholly irrelevant to achieving that objective.«80» "The burden is on the party challenging the classification to show that it is 'purely arbitrary.'"«81» The rational basis test requires only that the means employed by the statute be rationally related to a legitimate State goal, and not that the means be the best way of achieving that goal.«82» "[T]he Legislature has broad discretion to determine what the public interest demands and what measures are necessary to secure and protect that interest."«83»

Because persons convicted of three "most serious offenses" under(RCW 9.94 )A. 120(4) do not constitute a suspect or semisuspect class, and because physical liberty is an

important, but not a fundamental, right,^{Footnote 84} » the proper standard of review in this case is rational basis review. Applying that standard, we conclude Initiative 593 does not violate the equal protection clauses.

The initiative's goal of improved public safety, stated clearly in RCW 9.94A.392, is a legitimate state objective.^{Footnote 85} » And while the offenses included in the enumerated list of crimes in RCW 9.94A.030 (21) may be at least debatable, they nevertheless comprise an arguably rational, and not arbitrary, attempt to define a particular group of recidivists who pose a significant threat to the legitimate state goal of public safety. Initiative 593 easily passes rational basis scrutiny and does not, therefore, violate either the federal or state equal protection clauses.

CRUEL PUNISHMENT

[21] The Eighth Amendment to the United States Constitution proscribes infliction of "cruel and unusual punishment,"^{Footnote 86} » while Washington Constitution article I, section 14 proscribes infliction of "cruel punishment." Appellant contends his sentence of life without parole upon his conviction of three designated felonies violates both the Eighth Amendment and CONST. art. I, § 14.«87» This court has held that the state constitutional proscription against cruel punishment affords greater protection than its federal counterpart.«88» Accordingly, an independent analysis of appellant's claim under both constitutional provisions is appropriate.«89»

[22] The United States Supreme Court has held that the cruel and unusual punishment proscription of the Eighth Amendment prohibits not only barbaric punishments, but also prohibits sentences disproportionate to the crime committed.^{Footnote 90} » In Solem v. Helm, the Court held that a life sentence without possibility of parole was significantly disproportionate to defendant's principal crime of uttering a "no account" check for $100.00, along with five prior nonviolent crimes against property and one conviction for driving while intoxicated.«91» In its holding, the Court emphasized the passive nature of the defendant's crimes, noting they all were "nonviolent and none was a crime against a person."«92» However, in Harmelin v. Michigan, the Court rejected an Eighth Amendment proportionality challenge to a mandatory sentence of life without possibility of parole for the crime of possession of more than 650 grams of cocaine,«93» noting that the "[p]etitioner's crime . . . was far more grave than the crime at issue in Solem."«94»

In Rummel v. Estelle, the Court, against a claim that the sentence was disproportionate under the Eighth Amendment, upheld imposition of a mandatory life sentence without possibility of parole under the Texas recidivist statute.^{Footnote 95} » The defendant in that case had been convicted of obtaining $120.75 by false pretenses and had

prior felony convictions for fraudulent use of a credit card and passing a forged check in the amount of $28.36.^{Footnote 96} » In arriving at its conclusion, the Court reasoned that, given the defendant's record, the state was "not required to treat him in the same manner as it might treat him were this his first 'petty property offense.'. . ."«97» The Court also noted that, having twice imprisoned defendant for felonies, the state was entitled to "place upon [him] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State."«98»

[23] Appellant Manussier's two prior convictions for first degree robbery and his current conviction for second degree robbery make his criminal history far more serious than that of the petitioners in Solem and Rummel. Those petitioners had committed only nonviolent property offenses, while Appellant Manussier committed three crimes with significant potential for violence. His offenses would in all likelihood be considered by the Supreme Court as "very serious offenses"^{Footnote 99} » and the Court would likely conclude that a life sentence without parole is proportionate to the offenses committed by Appellant Manussier for purposes of the Eighth Amendment.

[24] This court has recognized that article I, section 14 of the state constitution, like the Eighth Amendment, proscribes disproportionate sentencing in addition to certain modes of punishment.^{Footnote 100} 0» "In attempting to employ proportionality analysis, courts have sought to use objective standards to minimize the possibility that the merely personal preferences of judges will decide the outcome of

each case."^{Footnote 101} 1» The court considers three factors in determining whether a punishment is disproportionate to the crime committed and thus "cruel" in contravention of CONST. art. I, § 14: (1) the nature of the offense; (2) the punishment the defendant would have received in other jurisdictions for the same offense; and (3) the punishment imposed for other offenses in the same jurisdiction.«102»

[25] Applying these factors to appellant's case leads to the conclusion that his sentence is not disproportionate in violation of the article I, § 14 proscription of cruel punishment. Each of the offenses underlying his conviction as a "persistent offender" is robbery, which is a potentially violent crime against a person.^{Footnote 103} 3» His two prior convictions for first degree robbery, a class A felony,«104» were based upon facts which represented a particularly significant risk of danger to others.«105» All three of his offenses are serious crimes«106» which carry maximum penalties ranging from ten years' imprisonment (second degree robbery) to life imprisonment (first degree robbery).«107» This court has observed in an habitual criminal case that "[t]he repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty."«108»

Factors two and three lead to a conclusion that appellant's sentence in this case is not unconstitutionally disproportionate to the crime he committed. He has provided no information concerning the punishment he would have received in other jurisdictions for his offenses in this state. However, Initiative 593 is consistent with reports on the national trend of substantially increasing criminal sentences for repeat offenders.^{Footnote 109} 9» There is no logical or practical basis for comparison of punishment appellant might receive for other crimes committed in Washington. Sentences under the Sentencing Reform Act vary with each defendant's criminal history and the presence or absence of aggravating or mitigating factors. In appellant's case, however, even without reference to Initiative 593, two of his three "most serious offenses" fall into a class of crimes with a maximum allowable sentence of life imprisonment.«110» Under Initiative 593, appellant would receive a sentence of life imprisonment upon his conviction for any armed offense, any offense with a finding of sexual motivation, any class A felony, or any of the twenty-one offenses enumerated in RCW 9.94A.030 (21)(a)-(u).

Considering these factors, along with the fact of appellant's repetition of serious criminal conduct, a sentence of life without possibility of parole upon his third conviction

for robbery is not a disproportionate penalty in violation of article I, § 14.^{Footnote 111} 1»

DUE PROCESS

[26] Appellant claims Initiative 593 violates his substantive and procedural due process rights under WASH. CONST. art. I, § 3 and Amendments V and XIV of the United States Constitution. He also claims his substantive and procedural due process rights are afforded greater protection under the state constitution than under the parallel federal provision. Thus, we must answer the first question whether an independent interpretation under the state constitution is appropriate by resort to the six nonexclusive factors announced by this court in State v. Gunwall.^{Footnote 112} 2»

[27] The Gunwall factors do not favor an independent inquiry under article I, section 3 of the state constitution. Factors (1) and (2) indicate co-extensive state and federal protections, inasmuch as the text of CONST. art. I, § 3 and the Fifth and Fourteenth Amendments to the Federal Constitution are identical. Factors (3) and (4) similarly indicate no broader protection under the state constitution since "[t]his court traditionally has practiced great restraint in expanding state due process beyond federal

perimeters."^{Footnote 113} 3» "Although not controlling, federal decisions regarding due process are afforded great weight due to the similarity of the language."«114»

While case law developed by this court under the former habitual criminal statute provided for specific procedures to be followed in cases prosecuted under that statute, those cases relied upon federal authority for their holdings.^{Footnote 115} 5» Factor (5) always favors independent state analysis because "[t]he state constitution limits powers of state government, while the federal constitution grants power to the federal government."«116» Factor (6) does not favor independent state constitutional interpretation because Initiative 593, although subject to considerable public debate and analysis, is no more a matter of particular state concern than any other law challenged on due process grounds.

[28] Appellant claims Initiative 593 violates his state and federal substantive due process rights by giving prosecutors undue leverage in the plea bargaining process, thus chilling the exercise of the right to trial.^{Footnote 117} 7» He argues that criminal defendants in the "vast majority of cases" are virtually compelled by the initiative to plead "guilty" to lesser offenses falling outside the "most serious offense" category to avoid the possibility of receiving a mandatory life sentence without parole. This argument is unpersuasive.

Appellant has not provided any evidence or authority to support his assertion of "forced plea bargaining" in the

"vast majority of cases." Indeed, the history of his own case contradicts such a claim. Appellant pleaded "guilty" to a lesser offense than the one originally charged. But the lesser offense was still a "most serious offense" under 9.94A.030(21). Appellant by his knowing plea of "guilty" projected himself into the ambit of the "three strikes law." While he waived his right to a jury trial, this could not have been to avoid the harsh effect of Initiative 593. Perhaps there was another reason, but it is not indicated in the record before us.^{Footnote 118} 8»

Appellant also argues his state and federal procedural due process rights are violated by Initiative 593. His argument is based largely upon this court's decisions under the former habitual criminal statute. That statute imposed a mandatory life sentence for any defendant convicted of three felonies,^{Footnote 119} 9» but did not establish procedures for habitual criminal hearings. This court took a step towards providing them.«120» We held that the State bears the burden of pleading and proving beyond a reasonable doubt the fact of two prior convictions in an habitual criminal proceeding.«121» We have also held that the existence of prior convictions in an habitual criminal prosecution was a question of fact to be resolved in a separate jury trial,«122» and if the defendant timely raised the issue, the State was

required to prove the constitutional validity of the prior convictions beyond a reasonable doubt.^{Footnote 123} 3»

Under the Sentencing Reform Act of 1981 (SRA) (RCW. 9.94A), of which Initiative 593 is a part, the procedures are quite different. The defendant's prior convictions need only be proved by a preponderance of the evidence, not proved beyond a reasonable doubt.^{Footnote 124} 4» Also, there is no provision in the SRA, or in Initiative 593 itself, for a separate jury trial on the issue of prior convictions or the constitutional validity of those prior convictions.

In State v. Ammons, this court upheld the constitutional validity of(RCW 9.94A), finding "the sentencing court's determination of prior convictions under the SRA to be most analogous to the former parole board's determination of criminal activity in a parole revocation proceeding" where the preponderance of the evidence standard had been held "constitutionally sufficient."^{Footnote 125} 5» The court also concluded in that case that the State need not prove the constitutional validity of a defendant's prior convictions unless they had been previously declared unconstitutional or were facially unconstitutional.«126»

[29-34] Appellant has not been denied his procedural due process rights under either the federal or state constitutions. While the former habitual criminal statute is somewhat analogous to Initiative 593 as a criminal recidivist statute, the initiative was enacted and codified as part of the SRA (RCW 9.94A ). Therefore, the procedures set forth in that statute (RCW 9.94A.110 ) must govern proceedings under RCW 9.94A.120 (4), regardless of any similarity to the habitual criminal statute. Those procedures are constitutional even though they are less protective than those developed by the court under the former habitual criminal statute. The United States Supreme

Court has held that a criminal defendant has no constitutional right to a jury trial on questions of fact relating to sentencing.^{Footnote 127} 7»

In Parke v. Raley, the Supreme Court upheld Kentucky's persistent felony offender statute under which prior convictions were presumed valid once the prosecution proved existence of the prior judgments.^{Footnote 128} 8» Under the Kentucky scheme, the prosecution's proof of prior judgments shifts to the defendant the burden of showing the defendant's rights were infringed or that some procedural irregularity occurred in the earlier proceedings.«129» If the defendant refutes this "presumption of regularity," the burden shifts back to the government to prove the validity of the judgments.«130» The Court referred to this approach as a "middle position," pointing out that some jurisdictions place the entire burden on the defendant once the prosecution has established the fact of prior convictions.«131» In upholding the Kentucky statute, the Court emphasized the "presumption of regularity that attaches to final judgments," even when the question involves a waiver of constitutional rights.«132» The Court also noted that due process does