FILED MARCH 14, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34112-7-111 ) (consolidated with Respondent, ) No. 34113-5-111, ) No. 34114-3-111, V. ) No. 34115-1-111) ) NICHOLAS S. ROY, ) UNPUBLISHED OPINION ) Appellant. )
LAWRENCE-BERREY, J. - Nicholas S. Roy appeals four trial court orders, each
denying his request to strike collections costs and fees associated with each of his four
legal financial obligation (LFO) balances. He asserts four arguments as to why the trial
court erred by not striking the annual $100 fee assessed by the Asotin County clerk's
office on his LFO balances. We reject three of his arguments, but remand one argument
so that the State may provide evidence to the trial court so the trial court can properly
resolve that issue. In his statement of additional grounds for review (SAG), he asserts
two reasons why the trial court erred by not striking garnishment costs. We reject those
arguments. No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III State v. Roy
FACTS
Between 1995 and 2002, Mr. Roy accrued four separate LFO balances stemming
from four felony convictions. In each judgment and sentence, the trial court left a box
unchecked that would have otherwise mandated Mr. Roy to pay the LFO collection costs.
Beginning in 2008, and as the responsibility for collecting each LFO balance
shifted from the Department of Corrections to the Asotin County clerk's office, that
office began assessing an annual $100 fee on each of his LFO balances.
In 2015, Mr. Roy filed four separate but similar motions, each relating to his four
LFO balances which total more than $30,000. Each motion sought to strike all
garnishment costs, fees, and a renewal of judgment assessment. The State conceded that
the renewal of judgment assessment should be stricken, but otherwise opposed the
motions. The trial court entered four separate orders denying Mr. Roy's requests in so far
as they related to collection costs and fees.
Mr. Roy timely appealed.
ANALYSIS
Questions of statutory construction are reviewed de novo. State v. Roggenkamp,
153 Wn.2d 614, 621, 106 P.3d 196 (2005). The purpose is to determine and carry out the
legislature's intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014). This
2 No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III State v. Roy
court first looks at the statute's plain meaning by looking at the "ordinary meaning of the
language at issue, the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572, 578,
210 P.3d 1007 (2009). "A court's inquiry ends if the statute is unambiguous after
reviewing its plain meaning." Alvarado v. Dep't of Licensing, 193 Wn. App. 171, 174,
371 P.3d 549 (2016).
General overview
Chapter 36.18 RCW sets forth various fees that county officers collect from users
of governmental services. These fees, some of which are shared with the state, raise
revenue for state and county governments.
RCW 36.18.016(29) provides: "For the collection of an adult offender's unpaid
legal financial obligations, the clerk may impose an annual fee of up to one hundred
dollars, pursuant to RCW 9.94A.780." The only part ofRCW 9.94A.780 that pertains to
clerks and LFO collections is subsection (7), which provides:
If a county clerk assumes responsibility for collection of unpaid legal financial obligations under RCW 9.94A.760, or under any agreement with the department under that section, whether before or after the completion of any period of community custody, the clerk may impose a monthly or annual assessment for the cost of collections. The amount of the assessment shall not exceed the actual cost of collections. The county clerk may exempt or defer payment of all or part of the assessment based upon any of the factors listed in subsection ( 1) of this section. The offender shall pay the assessment under this subsection to the county clerk
3 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
who shall apply it to the cost of collecting legal financial obligations under RCW 9.94A.760.
We first note that RCW 36.18.016(29) uses the term "fee," and RCW
9.94A.780(7) uses the term "assessment." Because the legislature chose to use different
terms, we could conclude the two terms mean different things. See Densley v. Dep 't of
Ret. Sys., 162 Wn.2d 210,219, 173 P.3d 885 (2007). However, RCW 36.18.016(29), by
explicitly stating that fees are imposable "pursuant to RCW 9.94A.780," requires us to
reach the opposite conclusion: we conclude the legislature intended that fees and
assessments are synonymous. This conclusion means that the limitation on how much the
clerk may charge for an assessment under RCW 9.94A.780(7) applies to the fee
authorized by RCW 36.18.016(29). Specifically, we hold that RCW 36.18.016(29)
authorizes a county clerk to impose an annual fee or assessment of up to $100 per LFO
judgment the clerk attempts to collect, provided the annual fee or assessment does not
exceed the annual cost of collection.
1. FEES PERMITTED BY CH. 36.18 RCW SUBSIDIZE THE GOVERNMENT
Mr. Roy first argues, "COST OF COLLECTIONS DOES NOT INCLUDE
EXPENDITURES IN CONNECTION WITH THE MAINTENANCE AND
OPERATION OF GOVERNMENT AGENCIES." Appellant's Br. at 6. Mr. Roy uses
the definition of"costs" in RCW 10.01.160 to argue that the annual fee authorized by
4 No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III State v. Roy
RCW 36.18.016(29) should not be used to subsidize the day-to-day operations of the
clerk's office.
Mr. Roy's argument misses the point. The fee authorized by RCW 36.18.016(29)
is not a cost. It is a fee. As earlier noted, the fees authorized by chapter 36.18 RCW are
intended to subsidize the day-to-day operations of government.
2. THE COUNTY CLERK MUST JUSTIFY ITS FEE
Mr. Roy next argues "THE COUNTY HAS NOT INCURRED AUTHORIZED
COSTS FOR COLLECTIONS ACTIVITY FOR WHICH THE OFFENDER MAY BE
CHARGED A FEE." Appellant's Br. at 8. Mr. Roy correctly notes the limitation on
assessments contained in RCW 9.94A.780(7), that "[t]he amount ... shall not exceed the
actual cost of collections."
The State responds that Mr. Roy, as the plaintiff, bears the burden of proof that the
clerk's costs do not exceed its $100 annual assessment, and because there is no evidence
on this issue, Mr. Roy's argument fails. We disagree.
"Washington courts have historically applied the long-recognized principle that the
burden of proof is better placed on the party having easier access to the relevant
information." Nat'/ Elec. Contractors Ass 'n v. Employment Sec. Dep 't, 109 Wn. App.
213, 226, 34 P.3d 860 (2001). Application of the above rule is appropriate here for two
5 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
reasons. First and foremost, RCW 9.94A.780(7) explicitly limits the clerk's authority by
requiring the clerk's assessment to be no more than its costs. To be in compliance with
this limitation, the clerk must have already calculated its costs to assure its annual
assessment is not in violation of the law. Second, the clerk knows how many employees
or fractions of employees are assigned to collect LFO balances. The clerk also knows
how many separate LFO balances it assesses each year. The clerk is required to have this
information. Assigning the clerk the burden of proof on this issue is manifestly
reasonable and consistent with established authority.
Here, the State has not come forward with any evidence to justify the clerk's
annual $100 fees for the years in question. This is partially due to Mr. Roy assuming, but
not clearly articulating, that the State has the burden of justifying the annual fees. We
remand to the trial court so the State has an opportunity to justify the clerk's annual fees.
On remand, the State is not foreclosed from raising any affirmative defense to Mr. Roy's
challenge to some or all of these fees.
3. THE FEE MAY BE ASSESSED AGAINST INDIGENT DEFENDANTS
Mr. Roy next argues, "A FEE FOR COSTS OF COLLECTIONS IS NOT
PROPERLY IMPOSED AS AN ADDITIONAL PENAL TY FOR OFFENDERS WHO
ARE UNABLE TO PAY LEGAL FINANCIAL OBLIGATIONS." Appellant's Br. at 9.
6 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
He argues that State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) sets a policy that
costs and fees should not be imposed on indigent defendants.
Blazina's holding was twofold. Primarily, RCW 10.01.160(3) expressly requires
trial courts to find that a defendant has the current or likely future ability to pay before
imposing discretionary LFOs. Blazina, 182 Wn.2d at 834. Additionally, the failure of
trial courts to adhere to this statutory limitation and make the required finding results in
great injustice, and appellate courts may use their discretion to review such errors, even
when those errors are unpreserved. Id. at 834-37.
Blazina's primary holding is based on a statute that explicitly requires trial courts
to find the defendant has the present or likely future ability to pay prior to imposing
discretionary costs. Here, RCW 36.18.016(29) expressly gives the clerk discretion to
assess an annual fee of up to $100. There is nothing that limits the clerk's discretion in
this regard. 1 Because mandatory language similar to RCW 10.01.160(3) is not contained
in RCW 36.18.016(29), or even RCW 9.94A.780, we will not extend Blazina's holding to
the annual fee authorized by the fee statute.
1 RCW 9.94A.780(7) permits a county clerk to exempt or defer assessments of collection costs because of a debtor's financial hardship. The language is permissive, not mandatory.
7 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
4. THE TRIAL COURT, BY NOT CHECKING THE BOX, DID NOT REMOVE THE CLERK'S DISCRETION TO IMPOSE COLLECTION COSTS
Mr. Roy next argues, "THE COURT'S DECISION NOT TO SELECT THE PRE-
PRINTED SECTION OF THE JUDGMENT AND SENTENCE THAT PERMITS THE
CLERK OF THE COURT TO COLLECT FEES FOR THE COST OF COLLECTIONS
EXPRESSES THE COURT'S INTENT THAT SUCH FEES NOT BE IMPOSED."
Appellant's Br. at 11. The pertinent portion of the judgment and sentence reads:
[ ] The defendant shall pay the costs of services to collect unpaid legal financial obligations. RCW 10. 73
Clerk's Papers at 10.
We disagree with Mr. Roy's arguments for two reasons. First, the fee under
discussion is not a collection cost. For this reason, the unchecked box, which relates only
to collection costs, is irrelevant. Second, RCW 36.18.016(29) explicitly gives the clerk,
not the trial court, discretion whether to impose up to a $100 annual fee for LFO
collections.
5. APPEAL COSTS
Mr. Roy requests that we not award the State appellate costs in the event it
prevails. The State opposes Mr. Roy's request.
8 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
In general, the substantially prevailing party on appeal is awarded appellate costs.
RAP 14.l(d); RAP 14.2. Here the State has prevailed on all but one issue, and may even
ultimately prevail on that issue. The State has substantially prevailed.
Our June 10, 2016 "General Order" sets forth a procedure whereby a defendant
can request the panel to waive application of this general rule. The procedure envisions
the defendant providing the panel with financial information so we can determine
whether the defendant has the current or likely future ability to pay appellate costs.
This determination is not satisfied by an earlier order determining indigency for
purposes of affording an attorney on appeal. This is because appellate costs are often a
small fraction of what an attorney would charge for an appeal. That is, one may have the
current or likely future ability to pay $500, but lack the current or likely future ability to
pay $5,000. For this reason, a defendant's compliance with our June 10, 2016 order is
necessary so we can properly exercise our discretion.
Mr. Roy has chosen not to comply with our General Order and provide us his
financial information, beyond the (undisputed) fact that his LFOs total more than
$30,000. A recent rule adopted by our Supreme Court sets forth a presumption of
continued indigency throughout the appeal. RAP 15.2(f); State v. Sinclair, 192 Wn. App.
380, 393, 367 PJd 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016).
9 No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III State v. Roy
We have little doubt that Mr. Roy remains indigent for purposes of affording an
attorney to represent him on appeal. But this is not germane to his ability to afford to pay
much lesser appellate costs. Mr. Roy's refusal to comply with our General Order
frustrates our goal of waiving imposition of appellate costs for those who truly lack the
current and likely future ability to pay those lesser costs.
Because of his undisputed debt of over $30,000, we nevertheless grant his request
and deny the State an award of costs on appeal.
SAG ISSUES
Mr. Roy first argues the clerk lacked authority to impose garnishment costs
because the trial court did not check the box described above in each judgment and
sentence. We disagree.
The unchecked box was not an order that collection costs could not be imposed.
Rather, it meant that the judgment and sentence did not independently authorize
imposition of such costs. But the clerk had authority to impose collection costs
independent from the judgment and sentence. RCW 6.27 .090(2) authorizes garnishment
costs to be collected against a garnishee defendant. Those costs include reasonable
processing and attorney fees as more particularly described therein.
10 No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111 State v. Roy
Mr. Roy next argues that garnishment costs should not be imposed against an
indigent defendant and cites Blazina. We earlier rejected a similar argument. We refuse
to extend Blazina to situations dissimilar to RCW 10.01.160(3). Here, imposition of
garnishment costs are authorized by a statute, and the statute does not limit imposition of
such costs to only those defendants with the current or likely future ability to pay.
Affirmed in part; remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
I CONCUR: j
Fearing,
11 34112-7-111 (consolidated w/ No. 34113-5-111; No. 34114-3-111; No. 34115-1-111
SIDDOWAY, J. (dissent in part)- "When information necessary to proof 'is
exclusively within the knowledge of one or the other of the parties, the burden would be
upon the party possessed of that knowledge to make the proof."' Cedar River Water &
Sewer Dist. v. King County, 178 Wn.2d 763, 779, 315 P.3d 1065 (2013) (quoting Joll!ffe
v. N. Pac. R.R. Co., 52 Wash. 433, 436, 100 P. 977 (1909)). Where a party does not show
that information is exclusively in the hands of its adversary or any other reason why the
usual burden of proof should be reversed, our Supreme Court has declined to do· so. Id.
National Electrical Contractors Ass 'n v. Employment Security Department, 109
Wn. App. 213, 226, 34 P.3d 860 (2001) does not hold otherwise. That case involved an
agency rule under which an employer was effectively foreclosed from appealing the
employment security department's informal determination of an employee's benefits
unless the employer could provide a quality of eligibility information that was in the
possession of the employee's union but was not available to the employer. See id. at 223.
The appellate court therefore interpreted the agency rule to require a showing by an
employer in the agency process that it could conceivably meet. The decision did not alter
the burden of proof in the court proceeding at all.
Here, the trial court evidently did not view Nicholas Roy as contending that the
county's $100 fee was more than its "actual cost of collections" within the meaning of
RCW 9.94A.780(7). See Clerk's Papers at 142-43 (Decision & Order on Def.'s Mot. to No. 34112-7-111 (consol. w/ No. 34113-5-111; No. 34114-3-111; and No. 34115-1-111) State v. Roy
Strike Unauthorized Collection Fees). The argument that the fee is being used to
subsidize unrelated costs appears to have been raised for the first time on appeal. Mr.
Roy made no effort in the trial court to demonstrate that information about the county's
actual cost of collection is exclusively in county hands, nor could he make that showing.
Washington's Public Records Act (PRA), chapter 42.56 RCW, allows citizens broad
access to public records and provides a cause of action to challenge inadequate responses
to record requests. Belenski v. Jefferson County, 186 Wn.2d 452, 456-57, 378 P.3d 176
(2016).
Before Mr. Roy sues the county for charging a collection fee that reflects more
than its actual cost (and again, I don't believe that was the nature of Mr. Roy's motion
below), he should first perform an inquiry that is reasonable under the circumstances and
form a belief that his claim is well grounded in fact. CR 11. Given the PRA, Mr. Roy
was particularly well positioned to have performed that inquiry.
I also would not grant Mr. Roy's request that we deny the State an award of costs
on appeal where he has failed to comply with our general order. It is unfair to the
defendants who comply.
For these two reasons, I dissent in part.
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