State v. Peterson

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON

SEPTEMBER 10, 2026

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 10, 2026 SARAH R. PENDLETON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 104536-1 Respondent, EN BANC v. Filed: September 10, 2026 KAREN KATHLEEN PETERSON, Petitioner.

GORDON MCCLOUD, J.—In 2015, the State charged Karen Peterson with felony possession of a controlled substance in violation of RCW 69.50.4013. To avoid conviction, Peterson sought and obtained a court order permitting her to enter the superior court’s “Adult Drug Treatment Court” program. She paid the program’s mandatory $900 participation fee and successfully completed it. The trial court then entered an order dismissing the charges with prejudice.

In 2021, this court decided State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Blake ruled that RCW 69.50.4013 was unconstitutional for making simple drug possession a strict liability crime. As a result, anyone convicted of simple drug possession prior to Blake can obtain vacatur of the conviction and reimbursement of legal financial obligations (LFOs) paid as a result of the conviction.

State v. Peterson (Karen Kathleen), No. 104536-1 Peterson was not convicted so she has no conviction to vacate or LFOs to refund. Instead, she filed a CrR 7.8 motion seeking the refund of her $900 drug court participation fee and vacatur of the already-dismissed charge. The trial court granted her motion, and the Court of Appeals reversed. State v. Peterson, 35 Wn. App. 2d 1, 573 P.3d 462 (2005).

Peterson may certainly file a CrR 7.8(b)(5) motion to challenge the court order that allowed her to participate in drug treatment court and to pay its $900 participation fee. But she cannot prevail on that motion.

To be sure, due process clause protections require the government to refund LFOs exacted from a criminal defendant as a result of an invalidated conviction. But that is not what happened here. In this case, Peterson was never convicted and never sentenced to pay LFOs. She sought and obtained the right to avoid conviction by participating in and successfully completing an alternative program: the drug court. She was not compelled to pay the drug court participation fee as a result of a conviction; she did so voluntarily to avoid conviction. We therefore reject her claim that she is entitled to a refund of that fee under federal due process clause protections.

FACTUAL AND PROCEDURAL HISTORY The State charged Peterson with felony possession of a controlled substance in August 2015. Clerk’s Papers (CP) at 47-48 (Information). She agreed to enter

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State v. Peterson (Karen Kathleen), No. 104536-1 Snohomish County’s Adult Drug Treatment Court (ADTC) program to avoid conviction. Id. at 50-55 (Def.’s Agreement to Enter ADTC Program).

As part of that agreement, Peterson agreed to waive her right to a speedy trial and to a trial by jury. Id. at 50. She agreed to a stipulated facts bench trial if she were terminated from drug court and acknowledged that “it is very likely the Judge will find [her] guilty since the only evidence the Judge will consider are the reports and other materials submitted by the prosecutor.” Id. at 50-51. Of importance to this case, she also agreed to pay a nonrefundable fee of $900 to participate in that drug court program. Id. at 51. If she failed to follow the terms of the agreement, the judge could impose sanctions including “[b]eing convicted and sentenced to the term prescribed by law for the original felony charge.” Id. at 53.

In exchange, the prosecutor agreed to dismiss the pending charges with prejudice “[u]pon the Defendant’s compliance with this Agreement and successful graduation from ADTC.” Id. at 54. Peterson, her attorney, the prosecutor, and the judge each signed this agreement, which concluded by ordering Peterson to report to drug court. Id. at 54-55. Peterson succeeded in drug court. She graduated from drug treatment court in July 2017, and the court dismissed the pending charges with prejudice. Id. at 35 (Aff. by Certification), 57 (Ord. of Dismissal with Prejudice).

Four years later, this court ruled that Washington’s simple drug possession statute, RCW 69.50.4013, was unconstitutional. Blake, 197 Wn.2d 170. Anyone

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State v. Peterson (Karen Kathleen), No. 104536-1 convicted of violating that statute is entitled to vacatur of their conviction and refund of their LFOs. LFOs are payments a court may order as part of a defendant’s sentence after conviction. RCW 9.94A.760(1).

Peterson argues that Nelson v. Colorado, 581 U.S. 128, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017), entitles her to a refund of her drug court participation fee. She sought relief in the superior court under CrR 7.8(b)(4) and (5). CP at 34 (Mot. for Relief Under CrR 7.8). Specifically, she sought “relief from judgment, ordering the State to return all fees Ms. Peterson paid because of her participation in Drug Court” and “an order vacating the dismissed Possession of a Controlled Substance charge.” Id.

CrR 7.8(b) states that “[o]n motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons,” including “[t]he judgment is void,” CrR 7.8(b)(4), or “[a]ny other reason justifying relief from the operation of the judgment,” CrR 7.8(b)(5). Peterson argued that the order of dismissal was void because the State never had authority to charge her with violating the unconstitutional statute. CP at 39. Peterson also argued that the reason justifying relief under CrR 7.8(b)(5) was “the expended time, energy and financial resources spent in Drug Court, which resulted in the dismissal of an unconstitutional charge.” Id. at 40.

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State v. Peterson (Karen Kathleen), No. 104536-1 The trial court agreed with Peterson, stating, “I would vacate. I would vacate the dismissal, which vacates the entire thing. . . . And then I would order the refund of the fees that were paid.” Verbatim Tr. of Proc. for Appeal at 16. The court then signed a written order vacating the charge and ordering the State to refund the $900 drug court fee.1 CP at 7-9 (Ord. Vacating Charge & Reimburse Drug Ct. Fee No Counts Remain). That order specified that the “charge of POSSESSION OF A CONTROLLED SUBSTANCE contained in the Information filed on August 18, 2015, against the above-named defendant, is constitutionally defective pursuant to CrR 7.8(2) [sic2] and State v. Blake and is hereby vacated.” Id. at 8. It further stated that “[d]ue process requires that Ms. Peterson be refunded the $900 Drug Court fee previously paid pursuant to the vacated charge. The State of Washington shall determine the method of any refund herein with all deliberate

speed.” 3 Id.

1 The order also directed that “[t]he Washington State Patrol . . . shall immediately update their records to reflect the vacation of the charge, and shall transmit the order vacating the charge to the Federal Bureau of Investigation as required by RCW 9.96.060(7).” CP at 8. The Court of Appeals reversed and at oral argument, Peterson’s counsel confirmed that she is not seeking to reinstate that portion of the trial court’s order. Wash. Sup. Ct. oral arg., State v. Peterson, No. 104536-1, at 8 min., 33 sec. to 9 min., 8 sec.; 9 min., 8 sec. to 9 min., 16 sec. (“The Court: So you’re not asking us to reinstate [that] portion of the trial court’s order . . . ? Counsel: Correct . . . .”), https://tvw.org/video/washington-state-supreme-court- 2026021055/?eventID=2026021055.

2 The Court of Appeals interpreted the trial court’s citation to “CrR 7.8(2),” which doesn’t exist, as a citation to CrR 7.8(b), given the context. We do too.

3 The State has refunded the entire $900 to Peterson. See Corrected Br. of Appellant at 31 (Wash. Ct. App. No. 85791-6-I (2024)); CP at 1. Peterson argued below that this

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State v. Peterson (Karen Kathleen), No. 104536-1 The Court of Appeals reversed. Peterson, 35 Wn. App. 2d 1. It reasoned that the original order to dismiss was not a judgment and therefore could not be vacated under CrR 7.8(b). 4 Id. at 11 (citing State v. Hecht, 2 Wn. App. 2d 359, 364, 409 P.3d 1146 (2018)). It also concluded that Peterson could not qualify for vacatur under RCW 9.94A.640(1), which the court said “limits vacatur to cases where a conviction exists.” Id. at 12. The Court of Appeals continued that “the trial court abused its discretion when it concluded that a dismissal order was a judgment for purposes of CrR 7.8 relief and, separately, when it vacated a charge that did not result in a conviction.” Id. at 14. (As discussed further below, Peterson no longer seeks vacatur of the original, but later dismissed, charge.)

Finally, the Court of Appeals ruled that Peterson could not use CrR 7.8 to seek a refund of her drug court fee. Peterson relied on Civil Survival Project v. State, a Court of Appeals decision that held that CrR 7.8 is the exclusive procedural means for those with Blake convictions to seek refunds of their LFOs. 24 Wn. App. 2d 564, 520 P.3d 1066 (2022), review denied, 2 Wn.3d 1011 (2023). But the appellate court

rendered the case moot. See Br. of Resp’t at 14-15 (Wash. Ct. App. No. 85791-6-I (2024)). The Court of Appeals, however, determined that the claim fell within an exception to the mootness doctrine for issues of continuing and substantial public interest. Peterson, 35 Wn. App. 2d at 8 n.6. It therefore addressed the merits of Peterson’s claim. Neither party challenges that decision in this court. And the State does not seek to recapture the refund. Id. at 7 n.6.

4 It did not note that the trial court vacated the charge, not just the dismissal.

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State v. Peterson (Karen Kathleen), No. 104536-1 held that Civil Survival did not control because “the fee at issue here is not a state- mandated LFO.” Peterson, 35 Wn. App. 2d at 17. And it rejected Peterson’s argument that the dismissal order was void because the State never had authority to charge her in the first place. Id. at 19. The Court of Appeals concluded that the trial court abused its discretion by issuing an order that “clearly exceeded its authority under the rule, Blake, and the vacatur statute.” Id. at 20.

Peterson sought review in this court, arguing that CrR 7.8 is the proper vehicle for seeking relief and that federal due process clause protections require the State to return her drug court participation fee.5 Pet. for Rev. at 3-4. Though Peterson’s arguments in the lower courts appeared to request two independent forms of relief (vacatur of the charges and, separately, refund of the fee), Peterson clarified at oral argument before this court that she sought vacatur only as a vehicle to obtain a refund, not as an independent remedy, and that she did so only because she believed that the Blake Refund Bureau required proof of vacatur to issue a refund. In fact, Peterson’s counsel explicitly acknowledged that Peterson did not really seek vacatur—she just sought a refund. Wash. Sup. Ct. oral arg., State v. Peterson, No.

5 Peterson cited both the Fourteenth Amendment of the United States Constitution and article I, section 3 of the Washington Constitution in her briefing. Suppl. Br. of Pet’r at 8; Pet. for Rev. at 10. But she did not argue that Washington’s due process clause is more protective than the federal due process clause in this context, and she cited only a federal due process protection case (Nelson, 581 U.S. at 128) in support of her claim. We therefore address only the federal due process claim.

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State v. Peterson (Karen Kathleen), No. 104536-1 104536-1, at 3 min., 30 sec. to 4 min., 2 sec. (“[S]he is seeking an order of vacatur . . . [because] [t]he Bureau requires an order of vacatur to effectuate the refund of any money collected by the State. That is, as far as I can tell, the real value of an order of vacatur in this case—it’s to effectuate the refund.”); 4 min., 29 sec. to 4 min., 40 sec. (“In terms of the effect of a vacate of a charge versus a dismissed charge, the only difference is that one effectuates the remedy of a refund and the other does not.”); 7 min., 59 sec. to 8 min., 5 sec. (“Again, the real value [of vacatur] is to effectuate the refund that she is entitled to under due process.”); 9 min., 39 sec. to 9 min., 44 sec. (“. . . [t]he remedy that is important to Ms. Peterson . . . is the refund.”), https://tvw.org/video/washington-state-supreme-court- 2026021055/?eventID=2026021055.

Thus, the sole question before this court is whether Peterson may use CrR 7.8(b) to seek a refund of money paid pursuant to a court order 6 that she claims is now constitutionally invalid and, if so, whether she wins on that claim.7 The nonprofit group Civil Survival filed an amicus brief in support of review.

6 The relevant court order is the court’s order directing her to report to drug treatment court. As part of that order, Peterson agreed to pay a nonrefundable participant fee of $900. CP at 51, 50-55.

7 As mentioned above, Peterson is not seeking to reinstate the portion of the trial court’s order on her CrR 7.8 motion that compelled Washington State Patrol to take certain actions, so we need not decide that issue. But we note that CrR 7.8(b) is a procedural mechanism that allows trial courts to correct errors in their own orders and proceedings. A CrR 7.8(b) motion does not place any other party before the court or grant the trial court any additional authority to compel nonparties to act.

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State v. Peterson (Karen Kathleen), No. 104536-1 STANDARD OF REVIEW

Peterson’s case presents two issues: (1) whether she can challenge the trial court’s order in a CrR 7.8 motion—a question of court rule interpretation, and (2) whether due process clause protections require courts to refund drug court participation fees paid to avoid conviction under an unconstitutional statute—a question of constitutional interpretation. These are both questions of law that we review de novo. State v. Stump, 185 Wn.2d 454, 458, 374 P.3d 89 (2016) (interpretation of a court rule presents a question of law that we review de novo); State v. Gregory, 192 Wn.2d 1, 14, 427 P.3d 621 (2018) (plurality opinion) (we review constitutional claims de novo).

To be sure, the trial court decided both issues in an order on a CrR 7.8 motion.

And we review superior court decisions on CrR 7.8 motions for abuse of discretion. State v. Enriquez-Martinez, 198 Wn.2d 98, 101, 492 P.3d 162 (2021). But there are no disputed facts or credibility matters at issue here, just questions of law. And a trial court abuses its discretion “if [that discretion] is exercised on untenable grounds or for untenable reasons, such as a misunderstanding of the law.” Id. So even under this standard of review, our task is the same: we must decide whether the superior court’s decision on the two questions of law presented was based on a correct understanding of the law.

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State v. Peterson (Karen Kathleen), No. 104536-1 ANALYSIS

I. Peterson can use CrR 7.8(b) to seek relief from an “order” stemming from her drug charges—CrR 7.8 is not limited to challenges to “judgments”

A. To determine whether Peterson may seek relief under CrR 7.8(b)(4) or (5), we must examine the language of that rule as a whole

The parties dispute whether Peterson can seek relief under CrR 7.8, a court rule. CrR 7.8 (“Relief from Judgment or Order”) provides, in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void; or (5) Any other reason justifying relief from the operation of the judgment.

We interpret court rules de novo, using tools of statutory construction to effectuate the drafter’s intent. State v. Waller, 197 Wn.2d 218, 225, 481 P.3d 515 (2021); State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (“As with statutes, this court gives effect to the plain language of a court rule, as discerned by reading the rule in its entirety and harmonizing all of its provisions.” (citing State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993)).

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State v. Peterson (Karen Kathleen), No. 104536-1 Ascertaining a rule’s plain meaning involves “‘constru[ing] and apply[ing]

words according to the meaning that they are ordinarily given, taking into account the statutory context, basic rules of grammar, and any special usages stated by the legislature on the face of the statute.’” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002) (quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 48A:16, at 809-10 (6th ed. 2000)). “[W]e must look to the whole statute, rather than the single phrase at issue.” In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P.2d 443 (1995).

Thus, to determine whether relief is available to Peterson through CrR 7.8(b)(4) or (5), we must look beyond just those subsections and examine the rule as a whole, in context.

B. CrR 7.8(b)’s introductory clause broadly authorizes a trial court to grant relief from a final judgment, order, or proceeding, and that introductory clause modifies each subsection

Peterson’s motion sought relief under CrR 7.8(b)(4) and (5). CP at 39. The State argues that Peterson cannot request relief under subsection (4) or (5) because there is no “judgment” in her case. See Suppl. Br. of Resp’t at 12-13. Though subsections (4) and (5) refer only to “judgments,” Peterson argues that those subsections may also provide relief from orders or proceedings, because CrR 7.8(b) refers to relief from a “final judgment, order, or proceeding” and does not limit relief to those convicted of a crime.

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State v. Peterson (Karen Kathleen), No. 104536-1 We agree with Peterson’s conclusion, but not with her analysis.8 The rule begins with the introductory clause, “On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons.” CrR 7.8(b) (emphasis added). That introductory clause suggests that each of the “reasons” that “follow[]” will authorize a court to grant relief “from a final judgment, order, or proceeding”—unless, perhaps, the subsections that follow clearly limit the introductory clause’s broad scope.

None of CrR 7.8(b)’s five subsections clearly limit the introductory clause’s broad inclusion of “final judgment[s], order[s], or proceeding[s].” Two subsections do not reference judgments, orders, or proceedings at all; one refers to “judgment[s]

8 Peterson relied in part on the series qualifier rule to support her argument. “[T]he series-qualifier rule . . . provides that ‘when there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.’” PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Revenue, 196 Wn.2d 1, 8-9, 468 P.3d 1056 (2020) (quoting BLACK’S LAW DICTIONARY 1642 (11th ed. 2019)). She argued that because the words “final judgment, order, or proceeding” have a straightforward parallel construction, the postpositive phrase “for the following reasons” applies to the entire series, i.e., a petitioner may seek relief from a final judgment, order, or proceeding, for any reasons that follow in subsections (1)-(5). Pet’r’s Suppl. Br. at 14- 15. But her reliance on the series qualifier rule is misplaced. “[F]or the following reasons” is not a series qualifier, nor is it a postpositive phrase. That phrase does not modify “final judgment, order or proceeding.” A postpositive phrase should make sense when read into each term in the series, for example “final judgment [for the following reasons], order [for the following reasons] or proceeding [for the following reasons].” That reading does not make much sense. See PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Revenue, 9 Wn. App. 2d 775, 781-82, 449 P.3d 676 (2019), aff’d, 196 Wn.2d at 8-9. Instead, that phrase introduces the grounds on which the court may grant relief from a final judgment, order, or proceeding.

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State v. Peterson (Karen Kathleen), No. 104536-1 or order[s];” and the remaining two refer only to “judgment[s].” None of the subsections state that their reference to the listed type of judgment, order, or proceeding is exclusive.

Indeed, interpreting each subsection to apply exclusively to its listed court action would render portions of the statute’s introductory clause superfluous— because none of those five subsections list “proceedings” and two do not reference judgments, orders, or proceedings at all. That would make the introductory clause’s inclusion of “proceeding[s]” inoperative. We disfavor interpretations that would render portions of the rule inoperative or superfluous. See Groves v. Meyers, 35 Wn.2d 403, 407, 213 P.2d 483 (1950) (“[A] statute should, if possible, be so construed that no clause, sentence or word shall be superfluous, void, or insignificant.”).

This reading of the full statute in context with its introductory clause means that CrR 7.8(b)’s subsections authorize courts to grant relief from a “final judgment, order, or proceeding” for any of the reasons listed in subsections (1) through (5), even if that subsection does not contain the words judgment, order, or proceeding. Indeed, that is how the Court of Appeals has applied CrR 7.8(b) in the past. See Jane Doe v. Fife Mun. Ct., 74 Wn. App. 444, 452, 874 P.2d 182 (1994) (interpreting CrRLJ 7.8(b)’s identical language to permit petitioners to seek relief from void orders, even though they were never convicted and did not have judgments, because

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State v. Peterson (Karen Kathleen), No. 104536-1 “[t]he rule provides that it exists to enable a party to obtain relief from judgments or orders, not merely convictions,” and directing petitioners to CrRLJ 7.8(b)(4)).9 To be sure, there is a plausible argument that the rule’s inclusion of “judgment” or “order” in some subsections but not in others means that the drafters knew how to expand the operation of the rule in some subsections and limit the operation of the rule in other subsections. See, e.g., Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669, 680, 389 P.3d 476 (2017) (“[W]here the legislature includes particular language in one section of a statute but omits it in another, the exclusion is presumed intentional.” (citing Millay v. Cam, 135 Wn.2d 193, 202, 955 P.2d 791 (1998))); State v. Delgado, 148 Wn.2d 723, 729, 63 P.3d 792 (2003) (“‘Under expressio unius est exclusio alterius, a canon of statutory construction, to express one thing in a statute implies the exclusion of the other.’” (quoting In re Det. of Williams, 147 Wn.2d 476, 491, 55 P.3d 597 (2002))). But this contrary possible interpretation of the rule’s language simply means that we must explore other interpretive rules to answer the question presented.

C. The rule’s purpose suggests that its broad introductory clause applies to each of its subsections

To interpret the meaning of a rule in context, we may also consider the rule’s purpose, as expressed by the enacting body. Campbell & Gwinn, LLC, 146 Wn.2d

9 CrRLJ 7.8(b) is CrR 7.8(b)’s counterpart in courts of limited jurisdiction. Its language is the same.

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State v. Peterson (Karen Kathleen), No. 104536-1 at 11 (“‘[T]he plain meaning rule requires courts to consider legislative purposes or policies appearing on the face of the statute as part of the statute’s context.’” (quoting 2A SINGER, supra, at 809-10)).

CrR 1.2, “Purpose and Construction,” provides:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, effective justice, and the elimination of unjustifiable expense and delay.

Interpreting CrR 7.8(b)(4) to allow relief from a void judgment, but not from a void order, would not “secure . . . fairness in administration” or “effective justice.” Similarly, interpreting CrR 7.8(b)(5) to allow relief from a judgment for “any other reason justifying relief” but to preclude relief from an order or proceeding even when there is a “reason justifying relief” does not secure fairness or effective justice. Considering CrR 7.8(b)’s introductory clause in context with this purpose bolsters our conclusion that CrR 7.8(b)’s introductory clause must be read to apply to each of its subsections (1)-(5).

D. Reading the rule in context with other related rules confirms that its broad introductory clause applies to each of its subsections

Reading CrR 7.8(b) in context with other related rules confirms this interpretation. See Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015) (“The court discerns legislative intent from the plain language enacted by the legislature, considering . . .

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State v. Peterson (Karen Kathleen), No. 104536-1 related provisions, amendments to the provision, and the statutory scheme as a whole.” (citing Campbell & Gwinn, LLC, 146 Wn.2d at 9-10)).

In State v. Scott, 92 Wn.2d 209, 595 P.2d 549 (1979), this court held that CR 60(b) applies to the vacation of judgments and orders in criminal cases. It adopted this rule in the context of a challenge to not just a judgment, but in the context of defendant’s challenge to an order revoking suspension of sentence (based on new trustworthy information indicating that it had previously been supplied with the incorrect drug test results).

CrR 7.8 was adopted to codify this court’s decision in Scott. Purpose Statement, Ord. 25700-A-382, at 59-60 (Wash. June, 11, 1986) (“The drafting subcommittee agreed that the Scott decision, applying CR 60 to criminal cases, should be codified in a court rule, in part to assist practitioners who do not regularly practice criminal law. The rule would be numbered as 7.8 . . . . The drafting subcommittee also concluded CR 60 would have to be selectively incorporated because portions such as CR 60(b)(7) do not arise in criminal cases. . . . Proposed rule 7.8(b) incorporates most of CR 60(b), and includes as pertinent grounds for the motion in criminal cases: CR 60(b)(1), CR 60(b)(3), CR 60(b)(4), CR 60(b)(5), and CR 60(b)(11).”).

CrR 7.8 was modeled after CR 60, which “gives trial courts a broad measure of equitable power to grant parties relief from judgments or orders.” Vaughn v.

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State v. Peterson (Karen Kathleen), No. 104536-1 Chung, 119 Wn.2d 273, 280, 830 P.2d 668, 671 (1992) (citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979)). 10 The language of CrR 7.8(b) is functionally identical to the language of CR 60(b), and CrR 7.8(b) incorporates 5 of CR 60(b)’s 11 subsections (because some of the subsections under CR 60(b) do not arise in criminal cases). Purpose Statement, supra, at 60; CR 60(b). So CrR 7.8(b)(4) is identical to CR 60(b)(5), and CrR 7.8(b)(5) is identical to CR 60(b)(11). Under CR 60(b)(11), courts have granted relief from orders—not just judgments (in appropriate, “extraordinary,” situations). E.g., Scott, 92 Wn.2d 209; In re Marriage of Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003) (granting relief from modification order under the CR 60(b)(11) catchall reason: “CR 60(b)(11) grants the court discretion to vacate an order for ‘[a]ny other reason justifying relief from the operation of the judgment.’” (alteration in original)).11

10 See also State ex rel. Turner v. Briggs, 94 Wn. App. 299, 302-03, 971 P.2d 581 (1999) (“A void judgment [under CR 60(b)] is a ‘judgment, decree or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved . . . .’” (emphasis added) (second alteration in original) (internal quotation marks omitted) (quoting Dike v. Dike, 75 Wn.2d 1, 7, 448 P.2d 490 (1968))).

11 See generally In re Marriage of Lehman, No. 33868-1-III, slip op. at 2, 19 (Wash.

Ct. App. Mar. 14, 2017) (unpublished) (CR 60(b)(11) is an appropriate vehicle for a motion to vacate child support orders: “We hold that a court may vacate a judgment or order under CR 60(b)(11) in those situations where an attorney’s gross negligence effectively deprived a diligent but unknowing client of representation. . . . [W]e remand to the trial court for it to make additional findings on whether the orders should be vacated under CR 60(b)(11), consistent with our analysis of that rule in this opinion.”),

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State v. Peterson (Karen Kathleen), No. 104536-1 Just as CR 60(b)(11) gives trial courts power to grant relief from orders (in extraordinary circumstances) in civil matters, CrR 7.8 gives trial courts power to grant relief from orders (in extraordinary circumstances) in criminal matters. Interpreting CrR 7.8(b)’s subsections to limit its introductory language clashes with the drafter’s intent as shown by this historical context.

In sum, narrowly interpreting CrR 7.8(b)(4) and (5) to authorize courts to grant relief only from judgments, and not from orders or proceedings, lacks support in the rule’s language, context, or purpose. We conclude that relief is available under CrR 7.8(b)(4) and (5) to challenge any of the three court actions included in the introductory clause.

Next, we turn to whether CrR 7.8(b)(4) or (5) is the proper avenue for relief given the facts of Peterson’s case.

E. Peterson’s path to relief is through CrR 7.8(b)(5); the Blake decision is the type of extraneous irregularity contemplated by CrR 7.8(b)(5).

But because the order at issue here is not “void,” relief is not available through CrR 7.8(b)(4)

CrR 7.8(b)(4) permits the court to relieve a party from a final judgment, order, or proceeding when “[t]he judgment is void.”

https://www.courts.wa.gov/opinions/pdf/338681_unp.pdf; In re Det. of Scott, No. 70692- 6-I, slip op. at 6 (Wash. Ct. App. June 9, 2014) (unpublished) (considering sexually violent predator’s motion to vacate order of commitment under CR 60(b)(11) because “CR 60(b)(11) . . . authorizes a trial court to vacate an order for ‘[a]ny other reason justifying relief from the operation of the judgment,’” but denying it on the merits (second alteration in original) (quoting CR60(b)(11))), https://www.courts.wa.gov/opinions/pdf/706926.pdf.

19

State v. Peterson (Karen Kathleen), No. 104536-1 But the trial court’s actions here were not “void.” Under our controlling recent precedent, simple drug possession was a valid crime when Peterson faced charges; our later ruling in Blake rendered the statute unconstitutional but did not nullify the statute or render all related proceedings void. State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024) (“We . . . disagree with Olsen that an unconstitutional statute is a nullity, void ab initio;” thus, Blake did not invalidate Olsen’s agreement to plead guilty to drug possession and several other non-possession-crimes); 12 see also State v. Ward, No. 58969-9-II, slip op. at 9 (Wash. Ct. App. July 29, 2025) (unpublished) (“[A]t the time of the parties’ [agreement that Ward would participate in drug court], simple drug possession was a recognized crime and its later invalidation did not make the statute a nullity.” (citing Olsen, 3 Wn.3d at 701)), https://www.courts.wa.gov/opinions/pdf/D2%2058969-9- II%20Unpublished%20Opinion.pdf.

Because the trial court’s actions in Peterson’s case, including the order to enter drug treatment court, were not “voided” by Blake, Peterson cannot use CrR

12 Olsen pleaded guilty to forgery and unlawful possession of a controlled substance in August and September 2003 in separate plea agreements. The trial court accepted the pleas at the same time and imposed concurrent sentences. In 2005, Olsen pleaded guilty to unlawful possession of a controlled substance and unlawful possession of a firearm in the second degree in a single plea agreement. Olsen argued that his pleas to unlawful possession of controlled substances “became pleas to nonexistent crimes, rendering them involuntary.” Olsen, 3 Wn.2d at 693. We rejected that argument. Blake required the court to vacate Olsen’s drug possession convictions, but it did not void all related proceedings.

20

State v. Peterson (Karen Kathleen), No. 104536-1 7.8(b)(4)—which allows a petitioner to seek relief from “void” judgments—to seek relief.

CrR 7.8(b)(5), however, permits the court to grant relief for “[a]ny other reason justifying relief from the operation of the judgment.” As discussed above, CR 60(b)(11), on which CrR 7.8(b)(5) was modeled, applies to “orders” as well as “judgments.”

We have ruled that this provision allows for relief in extraordinary circumstances not covered by other subsections of the rule. State v. Lamb, 175 Wn.2d 121, 128, 285 P.3d 27 (2012). Extraordinary circumstances “must relate to fundamental, substantial irregularities in the court’s proceedings or to irregularities extraneous to the court’s action.” State v. Olivera-Avila, 89 Wn. App. 313, 321, 949 P.2d 824 (1997) (citing State v. Aguirre, 73 Wn. App. 682, 688, 871 P.2d 616 (1994)); see also State v. Smith, 159 Wn. App. 694, 701, 247 P.3d 775 (2011) (extraordinary circumstances include the county’s elimination of partial confinement programs, which would require petitioners to serve the remainder of their sentences in total confinement despite the sentencing judge’s explicit reliance on alternatives to incarceration); State v. Klump, 80 Wn. App. 391, 909 P.2d 317 (1996) (extraordinary circumstances include the reversal of petitioner’s federal sentence, which had been ordered to run consecutively to his state sentence).

21

State v. Peterson (Karen Kathleen), No. 104536-1 We hold that the invalidation of the simple drug possession statute in Blake constitutes a “fundamental, substantial irregularit[y]” “extraneous to the court’s action” that permits Peterson to seek relief under CrR 7.8(b)(5). Olivera-Avila, 89 Wn. App. at 321.

F. Whether the trial judge erred by retaining jurisdiction over Peterson’s motion depends on whether she “made a substantial showing that [she is] entitled to relief”

The State argued to the Court of Appeals that even if Peterson could use CrR 7.8 to seek relief, that rule required the trial court to transfer the motion to the Court of Appeals for treatment as a personal restraint petition because Peterson failed to make a substantial showing that she is entitled to relief.

CrR 7.8(c)(2), “Procedure on Vacation of Judgment,” states:

The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that … either (i) the defendant has made a substantial showing that they are entitled to relief or (ii) resolution of the motion will require a factual hearing. A defendant is entitled to relief under subsection (i) where the person (A) is serving a sentence for a conviction under a statute determined to be void, invalid, or unconstitutional by the United States Supreme Court, the Washington Supreme Court, or an appellate court where review either was not sought or was denied or (B) is serving a sentence that was calculated under RCW 9.94A.525 using a prior or current conviction based on such a statute.[13]

13 Because Peterson is neither serving a sentence for an unconstitutional conviction nor serving a sentence calculated under RCW 9.94A.525, the State argued to the Court of Appeals that the trial court erred in retaining the motion. Reply Br. of Appellant at 20 (Wash. Ct. App. No. 85791-6-I (2024)). That argument essentially reads “only” into the sentence: “A defendant is entitled to relief under subsection (i) [ONLY] where the person

22

State v. Peterson (Karen Kathleen), No. 104536-1

(Emphasis added.)

The trial court obviously concluded that Peterson made a substantial showing that she was entitled to relief—the trial court granted her motion. Because that determination (i.e., whether Peterson made a substantial showing that she is entitled to relief) rests on the merits of Peterson’s argument, we turn there next. (We note at this point, though, that CrR 7.8(c) does not require the movant to prevail on the merits to make a “substantial showing” of entitlement to relief and avoid transfer to

. . .”—but the rule does not contain that word. That argument also assumes that despite the list of grounds for relief in CrR 7.8(b), the last sentence of CrR 7.8(c)(2) drastically limits the rule to situations where the defendant is either serving a sentence for an unconstitutional conviction or serving a sentence calculated under RCW 9.94A.525—thus making the rest of CrR 7.8(b)(1)-(5) inoperative. We reject that interpretation of CrR 7.8(c)(2). Its reference to two permissible forms of relief was not meant to be exclusive; the rest of CrR 7.8(b)(1)-(5) still matters.

In fact, the rule’s history confirms this. We amended CrR 7.8 in December 2021 to add that last sentence of CrR 7.8(c)(2). The Office of Public Defense (OPD) and other stakeholders proposed the amendment (Proposed amendment to CrR 7.8) to address the problem that some trial courts were “requiring [Blake-]impacted individuals to research, draft, and properly file pro se motions [that] successfully articulate a basis for relief prior to qualifying for counsel.” Letter from OPD, Wash. Def. Ass’n, and Wash. Ass’n of Crim. Def. Laws. to Sup. Ct. Rules Comm., Re: Suggested amendments to CrR 3.1, Right to and Assignment of Lawyer and CrR 7.8, Relief from Judgment or Order (May 24, 2021). The amendment did not substantively change (or exclusively define) who is entitled to relief under CrR 7.8; the list of grounds for relief in CrR 7.8(b) remains unchanged. The amendment simply clarified that individuals convicted under RCW 69.50.4013—a statute that we declared unconstitutional—are entitled to relief under CrR 7.8.

Both prior to and after the adoption of the amendment, defendants can make a substantial showing they are entitled to relief under CrR 7.8(c)(2)(i) on grounds other than those listed in CrR 7.8(c)(2)(ii)(A) or (B). Specifically, defendants can seek relief for all of the grounds listed in CrR 7.8(b)—not just the two grounds rereferenced in CrR 7.8(c).

23

State v. Peterson (Karen Kathleen), No. 104536-1 the Court of Appeals; under the proper interpretation of that phrase, Peterson made a substantial showing of entitlement to relief, but the State made a better argument against granting relief.)

II. Federal Due Process Clause Protections Do Not Require the State To Refund Peterson’s Drug Court Fee

A. In Nelson, the United States Supreme Court held that the due process clause requires states to return fees paid as a consequence of invalid convictions

The parties agree that Nelson is the seminal case on whether the due process clause entitles Peterson to a refund of her fees. 581 U.S. 128. See Suppl. Br. of Pet’r at 10-11; Suppl. Br. of Resp’t at 13-15.

In Nelson, the Court held that federal due process clause protections required Colorado to return fees the petitioners paid pursuant to their invalidated convictions.

That decision involved two criminal defendants. Petitioner Shannon Nelson’s conviction was reversed on appeal for trial error, and a new jury acquitted her of all charges on retrial. Nelson, 581 U.S. at 130. Petitioner Louis Alonzo Madden had one of his convictions reversed by the Colorado Supreme Court on direct review and had his other conviction vacated by a postconviction decision. The State declined to appeal or retry Madden’s case. Id. at 131.

The Colorado Supreme Court held that Nelson and Madden were not entitled to recoup their legal financial obligations. It ruled that they had to use Colorado’s

24

State v. Peterson (Karen Kathleen), No. 104536-1 complicated and demanding Exoneration Act 14 to seek refund of the costs, fees, and restitution they paid as consequence of their convictions. That act required them to prove their actual innocence by clear and convincing evidence to qualify for a refund. The Colorado Supreme Court held that the Exoneration Act “‘provides sufficient process for defendants to seek refunds of costs, fees, and restitution that they paid in connection with their conviction.’” Id. at 133 (quoting People v. Nelson, 2015 CO 68, ¶46, 362 P.3d 1070, rev’d and remanded, 581 U.S. 128).

The United States Supreme Court reversed. It held that the Exoneration Act violated defendants’ due process rights because it required them to prove their actual innocence to receive a refund of fees paid as a consequence of an invalidated conviction. The Court explained that Colorado must return the fees with only minimal procedures because Colorado had wrongfully exacted the fees pursuant to invalid convictions. 15 Id. at 130.

14 CO ST § 13-65-101 to -103.

15 The petitioners in Nelson did not seek refunds of any impositions they suffered prior to their convictions, and the Supreme Court did not consider whether due process clause protections would entitle them to refund of any such fees. Nelson sought refund of her Crime Victim Compensation Fund fee, a Colorado Victims and Witnesses Assistance and Law Enforcement Fund surcharge, a docket fee, a time payment fee, and restitution. Pet. for Writ. of Cert. at 2-3, Nelson v. Colorado, No. 15-1256 (U.S. Apr. 6, 2016). Madden sought refund of his Crime Victim Compensation Fund fee, a Victims and Witnesses Assistance and Law Enforcement Fund surcharge, a docket fee, a time payment fee, a sex offender surcharge, a fee for genetic testing of sex offenders, a special advocate surcharge, a substance abuse assessment fee, a drug testing fee, and restitution. Id. at 4. State law imposed these fees “only on defendants who are convicted.” Id. at 2.

25

State v. Peterson (Karen Kathleen), No. 104536-1 The Court relied heavily on the fact that the petitioners’ convictions created “[t]he sole legal basis for [the fees].” Id. at 131-32; see also id. at 139 (“[A] State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” (emphasis added)). Once the convictions were invalidated, the State had “zero claim of right” to retain those fees. Id. And Colorado could not force individuals with invalidated convictions to prove their actual innocence as a prerequisite to receiving refunds—because without convictions, they are presumed innocent.16 Id.

B. The State did not wrongfully exact Peterson’s drug court fees as a result of an unconstitutional conviction

Peterson, in contrast, was never convicted. Thus, the State did not wrongfully exact Peterson’s drug court fee pursuant to an invalid conviction. Instead, Peterson paid it as part of her choice to participate in drug court to avoid conviction. See CP at 51 (Def.’s Agreement to Enter ADTC Program).

Peterson argues that the unconstitutional charge that was originally filed against her (but is now dismissed) is essentially equivalent to an unconstitutional

16 Peterson argues that similar logic applies to her case. She argues that she “waived her right to be presumed innocent” by agreeing to a stipulated facts bench trial in her agreement to participate in drug court. Pet. for Rev. at 14; see Suppl. Br. of Pet’r at 1, 10- 11. The State countered that Peterson never lost her presumption of innocence, and the Court of Appeals agreed. Suppl. Br. of Resp’t at 14-15; Peterson, 35 Wn. App. 2d at 15. But this argument is irrelevant to Peterson’s case. Nelson’s focus on the presumption of innocence was tied to the Exoneration Act’s procedural scheme requiring defendants to show actual innocence to obtain a refund. There is no comparable procedural scheme here.

26

State v. Peterson (Karen Kathleen), No. 104536-1 conviction, so Nelson and Blake entitle her to a refund of any fees she paid pursuant to that unconstitutional charge. But she cites no authority for her assertion that a dismissed charge is comparable to a conviction. See Suppl. Br. of Pet’r at 10-11.

This overlooks the significant consequences of a conviction. In Blake, we emphasized that the State cannot impose “the harsh penalties of felony conviction . . . and the many collateral consequences that accompany every felony drug conviction” for a strict liability offense. 197 Wn.2d at 174. The consequences of conviction can ripple through all areas of an individual’s life, including limits on fundamental rights and eligibility for health care, employment, and housing benefits. Id. at 184-85; see also id. at 185 n.11 (listing close to a dozen collateral consequences of felony drug conviction). Charges—especially dismissed charges—do not carry such life-altering consequences.

Because Peterson avoided conviction, the fee she paid is unlike the fees paid by the petitioners in Nelson. Her fee was simply not a “conviction-related assessment[]” of “fees, court costs, and restitution” “upon, and as a consequence of, the conviction.” Nelson, 581 U.S. at 130. 17

17 Other states considering the application of Nelson have also rejected requests for refund of fees that were not tied to convictions. See, e.g., People v. Lovelace, 2018 IL App (4th) 170401, ¶ 60, 104 N.E.3d 532, 422 Ill. Dec. 965 (State not required to refund a bail bond fee because it was not imposed as a consequence of conviction); Commonwealth v. Watt, 482 Mass. 1031, 1033, 129 N.E.3d 293 (2019) (Commonwealth not required to return inmate account fees because such fees “were not exacted from defendant upon conviction and solely as a consequence of his convictions.”).

27

State v. Peterson (Karen Kathleen), No. 104536-1

C. Blake did not retroactively invalidate Peterson’s decision to participate in drug court or the court’s ability to offer that choice

Peterson argues that “once Blake rendered the strict liability possession statute void, the judgments, orders, and decisions of the court, including its order admitting Ms. Peterson into drug court with its mandatory participation fee, were undertaken without lawful authority.” Pet. for Rev. at 18.

We disagree. As discussed above, under our controlling recent precedent, simple drug possession was a valid crime when Peterson faced charges and our later ruling in Blake did not nullify the statute. See Olsen, 3 Wn.3d at 701; supra pp. 19- 20. Just as Olsen’s guilty plea to non-drug-possession charges remained valid after Blake, Peterson’s decision to participate in drug court remains valid. It was Peterson’s valid agreement, not the charges, that carried the fees.

III. The Trial Court Abused Its Discretion in Granting a Refund of Peterson’s Drug Court Fee

As mentioned above, we review superior court decisions on CrR 7.8 motions for abuse of discretion. Enriquez-Martinez, 198 Wn.2d at 101. A trial court abuses its discretion “if [that discretion] is exercised on untenable grounds or for untenable reasons, such as a misunderstanding of the law.” Id.

28

State v. Peterson (Karen Kathleen), No. 104536-1

A. The trial court’s decision to refund Peterson’s fee was based on its erroneous conclusion that due process clause protections entitled her to a refund; hence, that decision constituted an abuse of discretion

Due process clause protections do not entitle Peterson to a refund of the fee she voluntarily agreed to pay to participate in drug court as an alternative to conviction (under Nelson or any other theory). Because the trial court’s decision to refund Peterson’s voluntary drug court participation fees under CrR 7.8(b) was based on an erroneous conclusion of law, it constituted an abuse of discretion.

The trial court also granted Peterson the relief of vacating her charges. The Court of Appeals concluded that “the trial court abused its discretion . . . when it vacated a charge that did not result in a conviction.” Peterson, 35 Wn. App. 2d at 14. The Court of Appeals reasoned that Peterson could not qualify for vacatur because RCW 9.94A.640 “limits vacatur to cases where a conviction exists.” Id. at 12. But as explained above, Peterson relinquished her claim to vacatur as an independent remedy. We therefore decline to decide whether the trial court may grant vacatur of charges under CrR 7.8(b). See supra pp. 7-8.

B. Because reasonable jurists would find Peterson’s due process argument debatable, she made a substantial showing of entitlement to relief under CrR 7.8(c)(2)—even though that claim fails on the merits.

The trial court therefore properly retained jurisdiction over her CrR 7.8(b) motion

After this analysis, one question remains: whether the trial court erred in retaining Peterson’s CrR 7.8 motion.

29

State v. Peterson (Karen Kathleen), No. 104536-1 As discussed above, the trial court cannot retain a CrR 7.8(b) motion like Peterson’s unless she made a “substantial showing” that she was entitled to relief. CrR 7.8(c)(2). As also discussed above, CrR 7.8(c)(2) does not say that the movant must ultimately prevail on the merits of her motion to have the trial court consider it; the rule says that the movant need only make a substantial showing of entitlement to relief.

We have not yet explained exactly what a “substantial showing” of relief means. The United States Supreme Court, however, has defined that exact term in a related context, in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Slack explained that a federal statute requires habeas corpus petitioners to make a “substantial showing” of the denial of a constitutional right to be permitted to appeal a district court’s denial of a petition for writ of habeas corpus. 28 U.S.C. § 2253(c). In that context, a “substantial showing” does not mean that the petitioner must prevail on the merits to obtain an appeal. Instead, “substantial showing” of entitlement to relief means that reasonable jurists would find the issue debatable. Slack, 529 U.S. at 484 (“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” (internal quotation marks omitted) (quoting Barefoot v. Estelle, 463 U.S. 880, 893

30

State v. Peterson (Karen Kathleen), No. 104536-1 & n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983))). We apply that explanation of the exact same phrase in a similar postconviction circumstance here.

In this case, we hold that Peterson fails on the merits of her argument that the due process clause entitles her to a refund of her drug court participation fee. But whether she nevertheless made a substantial showing that she was entitled to that remedy is a different question. Given the recency of the Nelson decision, the uncertainty about whether it might be expanded to cover this situation, the trial court’s conclusion that Nelson should be expanded to cover this category of fees, and our dissenting colleagues’ views—we conclude that Peterson did show that reasonable jurists would find the issue debatable.

In other words, Peterson made a substantial showing of entitlement to relief.

The trial court properly retained her CrR 7.8(b) motion. But she loses on the merits of that motion.

CONCLUSION

We reverse the Court of Appeals in part and affirm in part. We hold that Peterson can use CrR 7.8(b)(5) to seek relief from the order requiring her to pay the drug court fee. We further hold that federal due process clause protections do not entitle Peterson to a refund of that drug court fee because it was paid pursuant to a valid agreement to avoid conviction. Because Peterson relinquished her claim to

31

State v. Peterson (Karen Kathleen), No. 104536-1 vacatur of charges, we decline to decide whether the trial court has authority under 7.8(b) to grant that remedy.

WE CONCUR:

Melody, J.

State v. Peterson

No. 104536-1

MUNGIA, J. (concurring)—Karen Peterson was charged with felony possession of a controlled substance. She agreed to go to drug court pursuant to the charges and paid a $900 drug court fee. After this court’s decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), Ms. Peterson moved to vacate her charge of felony possession of a controlled substance so she could secure a refund for the fee she paid to attend drug court. The State refunded the $900 fee and is not seeking its return.

“[W]here only moot questions or abstract propositions are involved . . . the appeal, or writ of error, should be dismissed.” Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972). The lead opinion acknowledges that this appeal is moot but notes that the Court of Appeals held the mootness exception for continuing substantial public interest applies. Lead opinion at 6 n.3. Because no party challenged this holding on appeal, the lead opinion elects to reach the merits of Ms. Peterson’s claim.

I disagree and would not exercise this court’s discretion to decide the moot issue in this case. Ms. Peterson sought to vacate the charges because she believed she needed a vacatur to receive a refund of the $900 drug court fee. However, the State has returned

State v. Peterson, No. 104536-1 (Mungia, J., concurring)

the $900 without a vacatur. This case is moot as Ms. Peterson has received the relief she requested. I would dismiss this case without reaching the merits.

Accordingly, I concur only in the result.

_______________________________

_______________________________

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

No. 104536-1

STEPHENS, C.J. (concurring in part and dissenting in part)—The State of Washington charged Karen Peterson with felony possession of a controlled substance. Instead of pursuing a conviction, the State and Peterson agreed that she would enter the superior court’s adult drug treatment program. Clerk’s Papers (CP) at 51-54. The trial court approved the agreement and Peterson complied with its terms, including by paying “a non-refundable participant fee of $900.” Id. at 51. After Peterson successfully completed the program, the State fulfilled its end of the bargain and moved to dismiss the charge with prejudice. The trial court granted the motion.

Following this court’s decision declaring the felony simple drug possession statute, RCW 69.50.4013, unconstitutional in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), Peterson filed a CrR 7.8 motion seeking a refund of the $900 drug court participation fee and the vacatur of the original, now-dismissed, felony drug possession charge. The trial court granted her motion, vacating the charge and

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

ordering that the $900 fee be refunded. The Court of Appeals reversed, holding that relief under CrR 7.8 is unavailable and rejecting Peterson’s due process claim.

On review, the lead opinion reverses in part. While the lead opinion agrees with the Court of Appeals that Peterson is not entitled to a refund under the federal due process clause, it holds that CrR 7.8 provides a viable mechanism for Peterson to obtain relief. I would affirm the Court of Appeals in full and therefore respectfully concur in part and dissent in part.

ANALYSIS

Resolution of this case turns on interpreting CrR 7.8, and we interpret court rules using the same tools of construction that apply to statutes. State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408 (2014). Though a trial court’s decision to grant a CrR 7.8 motion is reviewed for abuse of discretion, the proper interpretation of a court rule is a question of law reviewed de novo. In re Dependency of N.G., 199 Wn.2d 588, 593, 510 P.3d 335 (2022). As with statutes, we look first at the plain language of the rule and if the plain language is subject to only one reasonable interpretation, then it is unambiguous and our inquiry ends. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A plain language analysis is contextual, and meaning is “discerned by reading the rule in its entirety and harmonizing all of

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

its provisions.” State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (emphasis added).

CrR 7.8(b) provides for relief from a “final judgment, order, or proceeding”

for five enumerated reasons. Subsections (2) and (3) are the broadest and contemplate relief because of fraud, misrepresentations, or newly discovered evidence in the context of any final judgment, order, or proceeding. The other three subsections, however, limit relief to grounds that require a judgment or order. Subsection (1) limits relief to instances where there have been mistakes, inadvertence, surprise, excusable neglect, or irregularity “in obtaining a judgment or order.” CrR 7.8(b)(1). Subsections (4) and (5) are even narrower insofar as the type of court action they address. Subsection (4) provides relief from a final judgment, order, or proceeding only if a judgment was entered in the case and that judgment is void. CrR 7.8(b)(4). Subsection (5) provides relief only from the judgment entered in a case, based on “any other reason justifying relief from the operation of the judgment.” CrR 7.8(b)(5).

CrR 7.8(b)’s text is clear. As the lead opinion notes, “Two subsections do not reference judgments, orders, or proceedings at all; one refers to ‘judgment[s] or order[s];’ and the remaining two refer only to ‘judgment[s].’” Lead opinion at 13 (alterations in original) (quoting CrR 7.8(b)). Notwithstanding the express references to judgments or orders in three of the five subsections, the lead opinion

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

sweeps the provisions together and concludes that all subsections provide grounds for relief from all judgments, orders, or proceedings. This interpretation renders CrR 7.8’s express references redundant or meaningless, contrary to the mandate that “[w]e must give effect to [a rule’s] plain language as an expression of the court’s intent, without rendering ‘any portion of it meaningless or superfluous.’” In re Disciplinary Proc. Against Monro, 6 Wn.3d 155, 169, 585 P.3d 104 (2026) (internal quotation marks omitted) (quoting In re Disciplinary Proc. Against Wallstrom, 4 Wn.3d 528, 559, 566 P.3d 104 (2025)); Freedom Found. v. Teamsters Loc. 117 Segregated Fund, 197 Wn.2d 116, 134, 480 P.3d 1119 (2021) (refusing to construe text as “‘superfluous, void, or insignificant if any other reasonable interpretation exists’”) (internal quotation marks omitted) (quoting Ralph v. Dep’t of Nat. Res., 182 Wn.2d 242, 248, 343 P.3d 342 (2014)); State ex rel. Schillberg v. Barnett, 79 Wn.2d 578, 584, 488 P.2d 255 (1971) (“each word of a statute is to be accorded meaning”). The lead opinion’s reading gives no effect to the drafter’s inclusion of specific terms in each of the five subsections, rendering the word “judgment” superfluous in subsections (4) and (5) and “judgment or order” superfluous in subsection (1). Under the lead opinion’s reading, these references are unnecessary because the prefatory clause does all the work.

Neither Peterson nor the lead opinion seriously contend that the resolution of her case resulted in entry of a judgment. Indeed, a benefit of successful participation

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

in drug court is that it avoids a judgment of conviction. Nonetheless, the lead opinion reasons that because none of the subsections “clearly limit the introductory clause,” their references to judgments or orders cannot be deemed exclusive. Lead opinion at 12-13. As discussed, this reading deviates from the rule’s plain text, which uses different limiting terms in five distinct subsections.

The lead opinion’s reading also implies a novel rule of construction whereby the express language of a subsection will not be given effect absent additional language referring back to and limiting an introductory clause. Such a requirement would stand in tension with our precedent. See, e.g., Associated Gen. Contractors of Wash. v. State, 2 Wn.3d 846, 856, 544 P.3d 486 (2024) (holding that a subsection’s reference to “wage surveys” must be read to limit the previous subsection’s broader phrase “all data collected” despite an absence of explicit limiting language because “these two subsections of the same statute on the same topic naturally suggest” such a reading). Much like we determined that “wage surveys” are a subcomponent, and thus a limitation on the phrase “all data” in Associated Contractors, CrR 7.8(b) subsections (1), (4), and (5) reference partial components of the broader introductory phrase “final judgment, order, or proceeding” and thus the context “naturally suggest[s]” that they operate as limiting language. See id. This natural reading of the plain text also comports with the principle of expressio unius est exclusio alterius, which counsels that if a statute or

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

court rule “‘specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted . . . .’” In re Det. of Lewis, 163 Wn.2d 188, 196, 177 P.3d 708 (2008) (internal quotation marks omitted) (quoting Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 633 (1969)). The inference here is that when a subsection references only judgments, orders, or both, it excludes the additional types of actions or documents listed in the introductory phrase but not mentioned in the subsection. While not dispositive, this doctrine supports the plain reading of CrR 7.8(b) according to the terms included in each subsection.

The lead opinion relies on precedent interpreting CR 60 and CrRLJ 7.8 to support its proposed reading of CrR 7.8(b), but the cited cases are inapposite. First, the lead opinion highlights State v. Scott, which held that a defendant could seek relief from a criminal judgment under CR 60. 92 Wn.2d 209, 212-13, 595 P.2d 549 (1979). Scott does not support the lead opinion’s interpretation of CrR 7.8(b). There, the trial court had imposed a judgment on the defendant, and we affirmed the decision to provide relief from the operation of that judgment under CR 60. Id. at 212 (making clear that provisions of CR 60 “likewise apply to criminal as well as civil judgments” (emphasis added)). Our decision in Scott did not broadly hold that CR 60(b)(11) 1 applies to all orders in addition to judgments. Rather, we narrowly

1 This provision is identical to the catchall provision found in CrR 7.8(b)(5).

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

held that “CR 60(b)(11) controls and permits vacation of the orders under the unusual circumstances of this case.” Id. at 211-12. Those circumstances involved the trial court’s entry of a judgment and an order revoking the suspension of a separate sentence, a decision that was based on erroneous information. Once correct information was received, the trial court vacated the judgment it had just imposed as well as the underlying associated orders. Id. The trial court’s orders that led to and sustained the judgment were properly vacated as part of providing “relief from the operation of the judgment,” CrR 7.8(b)(5); see also CR 60(b)(11). This case does not involve associated orders that are to be vacated alongside a judgment. Peterson instead seeks affirmative relief: the refund of fees to participate in a drug court program that helped her avoid entry of a judgment. Such relief is not allowed under CR 60, and the parallels Scott recognized between the civil and criminal rules do not support granting Peterson a refund under CrR 7.8. See Geonerco, Inc. v. Grand Ridge Props. IV, LLC, 159 Wn. App. 536, 543, 248 P.3d 1047 (2011) (holding that CR 60 does not authorize a trial court to grant affirmative relief and is limited, depending on the scope of the subsection at issue, to the relief contained in the judgment or order entered in the case); Morris v. Palouse River & Coulee City R.R., 149 Wn. App. 366, 370, 203 P.3d 1069 (2009) (“CR 60(b)(5) permits relief from a final order upon showing ‘[t]he judgment is void.’” (emphasis added) (alteration in original)).

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

Second, the lead opinion cites the Court of Appeals decision in Jane Doe v.

Fife Municipal Court and its application of CrRLJ 7.8(b), which contains identical language to CrR 7.8(b). 74 Wn. App. 444, 874 P.2d 182 (1994). The lead opinion emphasizes the court’s recognition in Doe that CrRLJ 7.8 “exists to enable a party to obtain relief from judgments or orders, not merely convictions.” Id. at 452. However, this language refers to the court’s conclusion that the rule does not require a conviction to provide relief and, thus, applies to “judgments or orders” more broadly. The Court of Appeals did not purport to comment on the scope of any specific subsection. Moreover, like in Scott, the “critical question” in Doe was “whether the judgment ordering payment of court costs was void or merely erroneous.” Id. at 449 (emphasis added). The court did not have cause to consider whether the rule’s discrete subsections should be read to encompass more than what is laid out in their express terms.

Peterson acknowledges that she was never subject to a judgment. In her initial motion, she sought relief from “the Order of Dismissal” and the attendant $900 program participation fee. CP at 38. 2 Under a plain language reading of CrR 7.8(b),

2 It is unclear what relief would be provided by vacating the order of dismissal. As the lead opinion notes, Peterson acknowledged during oral argument that the primary relief she seeks is a refund of the $900 participation fee. Lead opinion at 7-8. However, this participation fee was not a legal financial obligation imposed as part of a sentence or a judgment; it was the product of a voluntary agreement between two parties. We have generally declined to disturb voluntary agreements that arise from prosecutions that are otherwise prohibited by our decision in Blake. See, e.g., State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024). Thus, even if CrR 7.8(b) provided a basis for vacating the order of dismissal, such an action would not mean the trial court

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

subsections (4) and (5) are unavailable as an avenue for vacating the order of dismissal because no judgment exists in this case. Moreover, Peterson does not demonstrate “[m]istakes, inadvertence, surprise, excusable neglect or irregularity” in obtaining her dismissal order. CrR 7.8(b)(1). As for the other subsections, Peterson does not demonstrate how the voluntary agreement between the parties constitutes a viable basis for relief under subsection (2), and there is no indication of fraud, misrepresentation, or other misconduct on the part of the State that would justify relief under subsection (3).

Peterson does not challenge the fact that she agreed to enter drug court to avoid prosecution but implies that she would not have entered this agreement had she known the State was prosecuting her under an unconstitutional statute. That suggestion is unavailing because when she agreed to enter drug court and pay the $900 participation fee, “simple drug possession was a valid crime,” and, thus, Blake does not provide “new legal grounds for determining whether [she] voluntarily and knowingly” entered into this agreement. State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024). By its plain terms, CrR 7.8(b) does not provide the relief Peterson seeks, and the trial court should have transferred her motion to the Court of Appeals for treatment as a personal restraint petition.

could grant affirmative relief in the form of invalidating the drug court contract and ordering the State to refund the program fee.

State v. Peterson, No. 104536-1 (Stephens, C.J., concurring in part, dissenting in part)

CONCLUSION

I appreciate that CrR 7.8 has been used effectively to provide relief from invalid Blake judgments, including the refund of legal financial obligations (LFOs) imposed pursuant to those judgments. However, the situation here is different. Peterson’s $900 drug court participation fee is the product of a voluntary agreement; it is not an LFO, and no judgment was ever entered in her case. In these circumstances, there is no provision of CrR 7.8(b) that authorizes vacating the order of dismissal or refunding the $900 drug court fee. Reading the rule according to its plain terms and giving effect to the express language of each subsection, I would affirm the Court of Appeals.

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Madsen, J.P.T.

No. 104536-1

GONZÁLEZ, J. (dissenting)—Our courts have the inherent authority and the discretion to correct significant injustices that arise from our own mistakes. CrR 7.8 presents a structured way for trial courts to exercise that authority and that discretion in criminal cases. Karen Peterson was charged with a crime under an unconstitutional statute and paid a significant participation fee to enroll in what amounts to a diversion program. Because I would hold the trial court possessed the inherent authority to refund monies that stem from an unconstitutional charge, I respectfully dissent.

In State v. Blake, this court declared the felony strict liability drug possession statute violated constitutional due process guaranties because the law punished innocent nonconduct. 197 Wn.2d 170, 174, 481 P.3d 521 (2021). Blake entitles individuals convicted under that unconstitutional law to receive vacatur of their conviction and reimbursement of legal financial obligations paid, but these remedies are not self-executing. See State v. Balles, 5 Wn.3d 137, 143-44, 572

State v. Peterson, No. 104536-1 (González, J., dissenting) P.3d 1186 (2025). CrR 7.8 is the established avenue for such relief. See Civ. Survival Project v. State, 24 Wn. App. 2d 564, 572, 520 P.3d 1066 (2022).

Peterson avoided an unconstitutional conviction by successfully participating in drug court, but it came with a cost. After Blake, Peterson filed a CrR 7.8 motion seeking relief like many others charged under the unconstitutional statute. The trial court issued her a $900 refund. I would hold that the trial court possessed the inherent authority to do so and properly exercised that authority under the framework provided by CrR 7.8.

As we have repeatedly observed:

This Court has recognized the inherent power and obligation of the judiciary to control all its necessary functions to promote the effective administration of justice. We have stated that the inherent powers of the courts are neither derived from nor dependent upon express constitutional authority, but the courts are empowered to do all that is reasonably necessary for the efficient administration of justice.

State v. Wadsworth, 139 Wn.2d 724, 740-41, 991 P.2d 80 (2000) (footnote omitted); see also Randy Reynolds & Assocs. v. Harmon, 193 Wn.2d 143, 162, 437 P.3d 677 (2019) (“[C]ourts possess inherent equitable powers to fashion remedies as justice demands.” (citing WASH. CONST. art. IV, § 6)).

Under CrR 7.8, Peterson is entitled to seek relief from the proceedings stemming from her unconstitutional charge, including the mandatory drug court participation fee. In addition, the dismissal order incorporates the drug court

State v. Peterson, No. 104536-1 (González, J., dissenting) contract.1 See State v. Hecht, 2 Wn. App. 2d 359, 361, 409 P.3d 1146 (2018) (granting refund from an order dismissing the charges). I see no meaningful distinction between granting a refund to someone convicted under an unconstitutional statute and denying a refund to someone else who successfully obtained dismissal of their charge under the same unconstitutional statute when in both situations they each were “guilty enough for monetary exactions.” Nelson v. Colorado, 581 U.S. 128, 136, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017). Accordingly, the State was not permitted to retain Peterson’s money, and the trial court correctly exercised its inherent authority to return it. m

Finally, I disagree with the lead opinion’s conclusion that Peterson voluntarily agreed to participate in drug court and pay the fee. Lead opinion at 28.2 This framing “fail[s] to account for the coercive reality of Blake-affected individuals’ entry into drug court, proceedings rooted in an unconstitutional statute.” Mem. of Amicus Curiae Civ. Survival in Support of Pet. for Rev. at 6. Peterson entered drug court under a law that violated her due process. “For all practical purposes, drug court participants are required to stipulate to their guilt,

1 The State’s motion and affidavit for order of dismissal gives the following reason to dismiss the charge: “The defendant has successfully completed and graduated from the Adult Drug Court Treatment Program.” Clerk’s Papers at 64. 2 I would not extend State v. Olsen, 3 Wn.3d 689, 701, 555 P.3d 868 (2024), beyond the context of the time bar to bring CrR 7.8 motions to withdraw guilty pleas. I disagree with the lead opinion that Peterson’s decision to participate in drug court is analogous to a guilty plea to constitutional, non-drug-possession crimes. Lead opinion at 27.

State v. Peterson, No. 104536-1 (González, J., dissenting) effectively surrendering fundamental constitutional rights.” Id. If found guilty of the unconstitutional law, Peterson faced a penalty of up to five years in prison and $10,000 in fines, as well as collateral consequences. Blake, 197 Wn.2d at 184 (citing RCW 9A.20.021(1)(c)). Accordingly, it would have been fundamentally unfair to deny Peterson a refund of her drug court participation fee.

Because the lead opinion would have denied Peterson a refund, I respectfully dissent.

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