authority." Majority at 4 n.4. This is also an incorrect reason for declining to apply
the rule oflenity. When the rule oflenity applies, it always works against the asserted
authority of the government—^that is the point. It is a check on government power
when the basis for government's assertion of that power is questionable or
ambiguous. As the Supreme Court has explained, it is a rule that in a criminal case,
fairness requires that'"a fair warning ... be given to the world in language that the
common world will understand, of what the law intends to do if a certain line is
passed.'" United States v. Bass, 404 U.S. 336, 348,92 S. Ct. 515, 30 L. Ed. 2d 488
(1971)(quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 75 L. Ed.
816 (1931)). The government cannot criminalize and stigmatize a person's acts
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Southwick, Inc. v. Dep't ofLicensing Bus. & Professions Div., No. 95231-Q
(Gordon McCloud, J., dissenting)
unless it does so in clear and unmistakable language and with fair warning. That is
not a reason to avoid the rule of lenity: that is the very reason for its existence.
Finally, it may be that the majority wants to avoid this regularly applied rule
of statutory interpretation because we are interpreting this criminal statute in the
context of a licensing decision rather than in the context of a criminal trial. But we
cannot interpret a single criminal statute one way when it is used as a basis for felony
conviction and another way when that same criminal statute is used as a basis for
professional discipline or some other civil suit. The same statute, with the same
words, must mean the same thing no matter where those words are read: in a criminal