IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RONALD BUZZARD, JR., No. 86750-4-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
INDETERMINATE SENTENCE REVIEW BOARD,
Respondent.
COBURN, J. — Ronald Buzzard Jr. appeals the dismissal of his petition for a writ
of mandamus to the Indeterminate Sentencing Review Board (Board) requesting that
the superior court order reinstate his date of scheduled release. Because Buzzard fails
to show that the Board has a mandatory duty to act, he fails to meet his burden to
support the issuing of a writ of mandamus. Accordingly, we affirm.
FACTS
In 2002, Ronald Buzzard pleaded guilty to rape of a child in the first degree. He
was granted a sentence under Washington’s Sex Offender Sentencing Alternative
(SSOSA), but that was revoked in April 2003, leaving him to serve a minimum term of
123 months with the maximum term of life. In 2016, the Board ordered his release to
community custody. About four years later, the Board revoked his release. In 2021, the
Board extended his term by 24 months following a releasability hearing under RCW 86750-4/2
9.94A.420. 1 2
In August 2023, the Board found Buzzard conditionally releasable subject to
approval of an offender release plan. Buzzard was later scheduled for a November 13,
2023 release date. Prior to Buzzard’s release, King County Prosecuting Attorney’s
Office notified the Board that they would be initiating a self-referral for a Forensic
Psychological Evaluation (FPE) to determine if Buzzard qualifies as a sexually violent
predator pursuant to RCW 71.09. The Board then suspended Buzzard’s release and
scheduled a new releasability hearing for February 2024 to consider the FPE results.
In November 2023, Buzzard petitioned for a writ of mandamus against the Board
requesting Snohomish County Superior Court to reinstate his November 13, 2023
release date. 3 The Board moved to dismiss the petition arguing that Buzzard failed to
demonstrate that the Board had a mandatory legal duty to grant his release, and that
Buzzard failed to use the correct adequate alternative action of a personal restraint
petition (PRP). The court agreed and dismissed Buzzard’s petition.
Buzzard appeals.
DISCUSSION
Buzzard contends that the superior court erred when it dismissed his writ of
mandamus. Specifically, he argues that his mandamus should have been granted
because the statutory term “shall” in RCW 9.95.420(3)(a) required the Board to release
1 This Court recently affirmed the dismissal of a similar mandamus action brought by Buzzard following the ISRB’s extension of his term by 24 months. Buzzard v. Indeterminate Sentence Rev. Bd., No. 38930-8-III, slip op. at 7 (Wash. Ct. App. Feb. 13, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/389308_unp.pdf. 2 Former RCW 9.94A.420 was recodified as RCW 9.94A.599 pursuant to 2001 c 10 § 6. 3 Buzzard refiled his petition in January 2024 after the first petition was dismissed without prejudice for insufficient service of process. 2 86750-4/3
him. 4 We disagree.
An applicant for a writ of mandamus must establish three elements for a writ to
issue: “(1) the party subject to the writ is under a clear duty to act; (2) the applicant has
no ‘plain, speedy and adequate remedy in the ordinary course of law’; and (3) the
applicant is ‘beneficially interested.’” Eugster v. City of Spokane, 118 Wn. App. 383,
402, 76 P.3d 741 (2003) (citations omitted) (quoting RCW 7.16.170). The burden of
establishing these elements is on the petitioner. Colvin v. Inslee, 195 Wn.2d 879, 894,
467 P.3d 953 (2020).
Writs of mandamus are subject to two different standards of review. Cost Mgmt.
Servs., Inc. v. City of Lakewood, 178 Wn.2d 635, 648, 310 P.3d 804 (2013). Which
standard of review applies depends upon the issue examined on appeal. Id. at 649. If
the alleged error deals with the trial court’s determination that the statute specifies a
duty that the person must perform, the issue is a question of law. River Park Square,
LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). Questions of law are reviewed
de novo. Id.
But a trial court’s determination that there exists a plain, speedy, and adequate
remedy at law is reviewed for an abuse of discretion. Cost Management, 178 Wn.2d at
649. A court abuses its discretion if its decision is manifestly unreasonable or rests on
untenable grounds or untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71
4 Buzzard also raises additional arguments that (1) the King County Prosector violated RCW 71.09.025(1)(a), Buzzard’s right to due process by filing the untimely request of an FPE referral, the Board’s actions which violated his constitutional rights to due process; and (2) that Buzzard’s due process rights under the federal and state constitutions were violated because he was not brought before a judge for a probable cause determination upon the filing of an SVP petition. The only order subject to this appeal is the March 7, 2024 decision of the superior court dismissing the mandamus petition. None of these arguments explain how the Board had a clear duty to act. Accordingly, we decline to address these issues. 3 86750-4/4
P.3d 638 (2003). A decision is based on untenable grounds or made for untenable
reasons if it rests on facts unsupported by the record or was reached by applying the
wrong legal standard. Id. A decision is manifestly unreasonable if the court, despite
applying the correct legal standard to the supported facts, reaches an outcome that is
outside the range of acceptable choices, such that no reasonable person could arrive at
that outcome. Id.
A statutory writ is an extraordinary remedy. Walker v. Munro, 124 Wn.2d 402,
407, 879 P.2d 920 (1994). The superior court may issue a writ of mandamus “to compel
the performance of an act which the law especially enjoins as a duty resulting from an
office.” RCW 7.16.160.
“A writ of mandamus can only command what the law itself commands.” Colvin,
195 Wn.2d at 893. Where there is no legal requirement for a government official to take
a specific action, a writ cannot require it. Id. As a result, “‘mandamus may not be used
to compel the performance of acts or duties which involve discretion on the part of a
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RONALD BUZZARD, JR., No. 86750-4-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
INDETERMINATE SENTENCE REVIEW BOARD,
Respondent.
COBURN, J. — Ronald Buzzard Jr. appeals the dismissal of his petition for a writ
of mandamus to the Indeterminate Sentencing Review Board (Board) requesting that
the superior court order reinstate his date of scheduled release. Because Buzzard fails
to show that the Board has a mandatory duty to act, he fails to meet his burden to
support the issuing of a writ of mandamus. Accordingly, we affirm.
FACTS
In 2002, Ronald Buzzard pleaded guilty to rape of a child in the first degree. He
was granted a sentence under Washington’s Sex Offender Sentencing Alternative
(SSOSA), but that was revoked in April 2003, leaving him to serve a minimum term of
123 months with the maximum term of life. In 2016, the Board ordered his release to
community custody. About four years later, the Board revoked his release. In 2021, the
Board extended his term by 24 months following a releasability hearing under RCW 86750-4/2
9.94A.420. 1 2
In August 2023, the Board found Buzzard conditionally releasable subject to
approval of an offender release plan. Buzzard was later scheduled for a November 13,
2023 release date. Prior to Buzzard’s release, King County Prosecuting Attorney’s
Office notified the Board that they would be initiating a self-referral for a Forensic
Psychological Evaluation (FPE) to determine if Buzzard qualifies as a sexually violent
predator pursuant to RCW 71.09. The Board then suspended Buzzard’s release and
scheduled a new releasability hearing for February 2024 to consider the FPE results.
In November 2023, Buzzard petitioned for a writ of mandamus against the Board
requesting Snohomish County Superior Court to reinstate his November 13, 2023
release date. 3 The Board moved to dismiss the petition arguing that Buzzard failed to
demonstrate that the Board had a mandatory legal duty to grant his release, and that
Buzzard failed to use the correct adequate alternative action of a personal restraint
petition (PRP). The court agreed and dismissed Buzzard’s petition.
Buzzard appeals.
DISCUSSION
Buzzard contends that the superior court erred when it dismissed his writ of
mandamus. Specifically, he argues that his mandamus should have been granted
because the statutory term “shall” in RCW 9.95.420(3)(a) required the Board to release
1 This Court recently affirmed the dismissal of a similar mandamus action brought by Buzzard following the ISRB’s extension of his term by 24 months. Buzzard v. Indeterminate Sentence Rev. Bd., No. 38930-8-III, slip op. at 7 (Wash. Ct. App. Feb. 13, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/389308_unp.pdf. 2 Former RCW 9.94A.420 was recodified as RCW 9.94A.599 pursuant to 2001 c 10 § 6. 3 Buzzard refiled his petition in January 2024 after the first petition was dismissed without prejudice for insufficient service of process. 2 86750-4/3
him. 4 We disagree.
An applicant for a writ of mandamus must establish three elements for a writ to
issue: “(1) the party subject to the writ is under a clear duty to act; (2) the applicant has
no ‘plain, speedy and adequate remedy in the ordinary course of law’; and (3) the
applicant is ‘beneficially interested.’” Eugster v. City of Spokane, 118 Wn. App. 383,
402, 76 P.3d 741 (2003) (citations omitted) (quoting RCW 7.16.170). The burden of
establishing these elements is on the petitioner. Colvin v. Inslee, 195 Wn.2d 879, 894,
467 P.3d 953 (2020).
Writs of mandamus are subject to two different standards of review. Cost Mgmt.
Servs., Inc. v. City of Lakewood, 178 Wn.2d 635, 648, 310 P.3d 804 (2013). Which
standard of review applies depends upon the issue examined on appeal. Id. at 649. If
the alleged error deals with the trial court’s determination that the statute specifies a
duty that the person must perform, the issue is a question of law. River Park Square,
LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). Questions of law are reviewed
de novo. Id.
But a trial court’s determination that there exists a plain, speedy, and adequate
remedy at law is reviewed for an abuse of discretion. Cost Management, 178 Wn.2d at
649. A court abuses its discretion if its decision is manifestly unreasonable or rests on
untenable grounds or untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71
4 Buzzard also raises additional arguments that (1) the King County Prosector violated RCW 71.09.025(1)(a), Buzzard’s right to due process by filing the untimely request of an FPE referral, the Board’s actions which violated his constitutional rights to due process; and (2) that Buzzard’s due process rights under the federal and state constitutions were violated because he was not brought before a judge for a probable cause determination upon the filing of an SVP petition. The only order subject to this appeal is the March 7, 2024 decision of the superior court dismissing the mandamus petition. None of these arguments explain how the Board had a clear duty to act. Accordingly, we decline to address these issues. 3 86750-4/4
P.3d 638 (2003). A decision is based on untenable grounds or made for untenable
reasons if it rests on facts unsupported by the record or was reached by applying the
wrong legal standard. Id. A decision is manifestly unreasonable if the court, despite
applying the correct legal standard to the supported facts, reaches an outcome that is
outside the range of acceptable choices, such that no reasonable person could arrive at
that outcome. Id.
A statutory writ is an extraordinary remedy. Walker v. Munro, 124 Wn.2d 402,
407, 879 P.2d 920 (1994). The superior court may issue a writ of mandamus “to compel
the performance of an act which the law especially enjoins as a duty resulting from an
office.” RCW 7.16.160.
“A writ of mandamus can only command what the law itself commands.” Colvin,
195 Wn.2d at 893. Where there is no legal requirement for a government official to take
a specific action, a writ cannot require it. Id. As a result, “‘mandamus may not be used
to compel the performance of acts or duties which involve discretion on the part of a
public official.’” SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 599, 229 P.3d
774 (2010) (quoting Walker, 124 Wn.2d at 410)).
Buzzard misconstrues the legislature’s use of the term “shall” in RCW
9.95.420(3)(a) as mandating the Board to release Buzzard regardless of a pending
FPE. The statute that governs the end of sentence review for sex offenders states,
(3)(a) Except as provided in (b) of this subsection, no later than ninety days before expiration of the minimum term, but after the board receives the results from the end of sentence review process and the recommendations for additional or modified conditions of community custody from the department, the board shall conduct a hearing to determine whether it is more likely than not that the offender will engage in sex offenses if released on conditions to be set by the board. The board may consider an offender’s failure to participate in an evaluation under
4 86750-4/5
subsection (1) of this section in determining whether to release the offender. The board shall order the offender released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released. If the board does not order the offender released, the board shall establish a new minimum term as provided in RCW 9.95.011.
RCW 9.95.420(3)(a) (emphasis added). Under the plain language of the statute, the
board has the discretion to consider “other conditions as the board determines
appropriate.” The Board was aware, prior to Buzzard’s scheduled release date, that the
King County Prosecutor’s Office requested a referral for an FPE to determine if Buzzard
qualifies as a sexually violent predator pursuant to RCW 71.09. Nothing in the statute
prohibits the Board from determining that it is appropriate to consider the FPE referral
and its results prior to Buzzard’s release. Moreover, the statue gives the Board great
discretion in determining what conditions are appropriate to support release. It follows
that mandamus may not be used to compel the performance of acts or duties which
involve discretion on the part of the Board. See SEIU Healthcare 775NW, 168 Wn.2d at
599. “[T]he authority to decide when a sex offender is released is vested with the
[Board].” Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 593, 520 P.3d 939 (2022).
The Board also cites Buzzard, No. 38930-8-III, slip op. at 5 (while recognizing that the
Board had authority to determine whether Buzzard was releasable, concluding that
there is nothing in RCW 9.95.420 indicating that the Board had a duty to release
Buzzard). 5
5 Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court, but if filed after March 1, 2013, may be cited as nonbinding authorities and may be accorded such persuasive value as the court deems appropriate. GR 14.1. 5 86750-4/6
Buzzard relies on this court’s ruling in Dress v. Dep’t of Corr., 168 Wn. App. 319,
279 P.3d 875 (2012), in support of his argument. However, his reliance on Dress is
misplaced.
In Dress, the superior court sentenced Dress to multiple terms, with the longest
being 84 months, to be served concurrently. Id. at 323. The DOC believed that Dress’
sentences should be served consecutively prior to a previous superior court sentence
from another Washington county. Id. DOC submitted a request to the sentencing court
to amend its judgment and sentence to reflect consecutively served terms, but there
was no response. Id. Additionally, DOC failed to file a petition to seek appellate review
pursuant to RCW 9.94A.585(7) regarding their claim that the judgment and sentence
were erroneous within the 90-day window provided by the statute. Id. Over four years
later, Dress was informed by the DOC that she would not be released according to the
superior court’s judgment and sentence timeline, because her sentences were to be run
consecutively. Id. at 324. On appeal, this court held that the judgment and sentence
were unambiguous as provided by the superior court, and that DOC had no authority to
impose a different sentence. Id. at 329. The Dress court granted her writ of mandamus
compelling DOC to follow the superior court’s original judgment. Dress is inapposite.
The Board also relies on this court’s holding in Pers. Restraint of Betts, No.
85906-4-I, slip op. at 4 (Wash. Ct. App. Jan. 16, 2024) (unpublished),
https://www.courts.wa.gov/opinions/pdf/859064.pdf. In Betts, we observed that
determination of parolability for sex offenders is governed by RCW 9.95.420 and
chapter 381-90 WAC, and that “[n]either RCW 9.95.420 nor chapter 381-90 WAC states
that a decision of the [Board] cannot be modified once entered.” Id.
6 86750-4/7
Buzzard has not established that the Board is under a clear duty to act, as he
asserts, to release him as was initially scheduled on November 13, 2023. Because he
fails to fulfill the first element necessary for a court to issue a writ of mandamus and all
three elements are required, we need not reach the remaining elements. See Est. of
McCartney by & through McCartney v. Pierce County, 22 Wn. App. 2d 665, 699, 513
P.3d 119 (2022).
We affirm.
WE CONCUR: