FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON NOVEMBER 21, 2024
IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON NOVEMBER 21, 2024 ACTING SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 102627-7 Respondent, ) ) v. ) En Banc ) JENNIFER A. RICHARDS, ) ) Petitioner. ) ) Filed: November 21, 2024
JOHNSON, J.—Jennifer Richards was convicted of having a dangerous dog
at large and was sentenced to nearly a year in jail, which was suspended on the
condition of surrendering her dog for termination. The district court ordered that
Jennifer Richards would not have to serve her 364-day sentence if she forfeited her
property—her dog named Thor—following her conviction under Revised Code of
Wahkiakum County (RCWC) 16.08.050. The Court of Appeals vacated the
condition and determined the district court exceeded its statutory authority in
imposing the condition. We hold that forfeiture—whether criminal or civil— State v. Richards, No. 102627-7
requires statutory authorization and that the district court exceeded its sentencing
powers when it ordered Richards to forfeit Thor. We affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Jennifer Richards’s dog, Thor, serves as an emotional support animal to
Richards’s daughter, who suffers from health complications. Thor was declared a
“potentially dangerous dog” 1 under RCWC 16.08.040 2 in June 2018, after biting
Richards’s neighbor’s dog. Thor bit the same dog again in April 2019 and was
declared a “dangerous dog” under Wahkiakum County Code.3 Clerk’s Papers (CP)
1 “‘Potentially dangerous dog’ means any dog that when unprovoked: (a) inflicts bites on a human or a domestic animal either on public or on private property, or (b) chases or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or to cause injury or otherwise threaten the safety of humans or domestic animals, or (c) chases or approaches a person upon that person’s own private property in a menacing fashion or apparent attitude of attack.” RCWC 16.08.010. 2 “A. It is unlawful for any owner of a dog that has been declared to be a potentially dangerous dog, to keep such dog within Wahkiakum County unless such owner has procured a currently valid certificate of registration from the Animal Control Authority. “B. The owner of a potentially dangerous dog shall obtain a certificate of registration for such dog from the Animal Control Authority. A certificate of registration is valid for two years from the date of issuance. “C. A Fifty-Dollar fee shall be charged for registration of a potentially dangerous dog pursuant to this section. “D. It is unlawful for any person to cause, permit, or allow any potentially dangerous dog owned, controlled, or kept by him or her to roam, run or stray away from property he or she owns, rents, or otherwise controls. A potentially dangerous dog may be away from the property of its owner only if it is securely leashed and under the direct control and supervision of its owner or the owner’s designee.” 3 “‘Dangerous dog’ means any dog that according to the records of the appropriate authority: (a) has inflicted severe injury upon a human being without provocation on public or private property, (b) has killed a domestic animal without provocation while off the owner’s property, or (c) has been previously found to be potentially dangerous, the owner having received notice of such and the dog again aggressively bites, attacks or endangers the safety of humans or domestic animals.” RCWC 16.08.010.
2 State v. Richards, No. 102627-7
at 188. Both the state and county codes require certain actions of the owner of a
dangerous dog, such as registering the dog and having the dog restrained at all
times, on a leash or in a fenced yard. RCWC 16.08.050(F); 4 RCW 16.08.080(6).
In September 2020, Richards left Thor on her porch while she ran to the
pharmacy to get medication for her daughter. Thor was not enclosed and was not
leashed, but he did not leave Richards’s property. Police were called to check on a
loose dangerous dog. Thor barked at the officer who attempted to secure the
animal but did not bite. The first officer called for backup, and they monitored
Thor until Richards returned home and secured the dog. The officers informed
Richards that the incident would be forwarded to the prosecutor’s office.
Wahkiakum County (County) charged Richards with one count of having a
dangerous dog at large in violation of RCWC 16.08.050(F) 5 and RCW 16.08.100, 6
4 Owners of dangerous dogs must have a valid certificate of registration, received on showing of (1) a proper enclosure with a conspicuous warning sign, (2) a surety bond issued by an insurer in the sum of at least $50,000 payable to any person injured by the dog, and (3) a policy of liability insurance in the amount of at least $50,000. The registration must be renewed annually. The dog must wear a muzzle and be restrained by a chain or leash under the physical restraint of a responsible person when outside of the proper enclosure. 5 “It is unlawful for an owner of a dangerous dog to permit the dog to be outside the proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraint of a responsible person. The muzzle shall be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but shall prevent it from biting any person or animal.” 6 “(1) Any dangerous dog shall be immediately confiscated by an animal control authority if the: . . . (d) dog is outside of the dwelling of the owner, or outside of the proper enclosure and not under physical restraint of the responsible person.”
3 State v. Richards, No. 102627-7
punishable pursuant to RCWC 16.08.090(B) 7 and RCW 16.08.100(1).8 Eventually,
the County and Richards stipulated that the legal grounds under which Thor was
declared a dangerous dog was solely based on RCWC 16.08.010, and that he was
not designated dangerous based on state law. 9 Thus, Richards was guilty based on
the county ordinance and not state law. The district court convicted Richards of a
gross misdemeanor after a stipulated bench trial.
At sentencing, the County recommended that Richards receive the maximum
sentence and fine, but that the sentence be suspended once Thor was euthanized by
the Humane Society of Cowlitz County. The district court sentenced Richards to
364 days in jail plus 24 months of probation. The court documents did not specify
that the sentence was suspended, noting 0 days suspended, but seemed to present
an alternative to confinement if Richards surrendered the dog to the humane
society. The parties have agreed that surrendering the dog would result in Thor’s
7 “Any person violating any of the provisions of Section 16.08.050 shall be subject to the punishments prescribed by Chapter 16.08 of the Revised Code of Washington, as now or hereafter amended.” 8 State law specifies that the dog in violation must be immediately confiscated. The animal control authority must serve notice on the dog owner, specifying the reason for confiscation, that the owner is responsible for costs of confinement, and that the dog will be destroyed if the deficiencies are not corrected within 20 days. The animal control authority will then destroy the dog if the deficiencies are not corrected. In addition, the owner is guilty of a gross misdemeanor. 9 State law has a different definition of dangerous dog, which Thor does not meet: “‘Dangerous dog’ means any dog that (a) inflicts severe injury on a human being without provocation on public or private property, (b) kills a domestic animal without provocation while the dog is off the owner’s property, or (c) has been previously found to be potentially dangerous because of injury inflicted on a human, the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans.” RCW 16.08.070(2).
4 State v. Richards, No. 102627-7
euthanasia. The judgment and sentence (J&S) also specified that if Richards did
not surrender the dog by the following day, she would remain in custody until she
provided proof that the dog had been surrendered. Richards appealed to the
superior court, which affirmed her conviction and sentence.
Richards then appealed the conviction and sentence to the Court of Appeals,
Division Two. The Court of Appeals affirmed Richards’s gross misdemeanor
conviction based on the county ordinance. However, the court remanded for
resentencing, determining that the district court had gone beyond its authority and
that the condition on the suspended sentence violated the statute and the county
ordinance. Specifically, the court found that the prerequisites for destruction of a
dog provided in both the state law and county ordinance were not met, and thus
Thor was not subject to destruction. State v. Richards, 28 Wn. App. 2d 730, 756,
537 P.3d 1118 (2023).
Both Richards and the County petitioned for review in this court. We
granted review of the issue raised by the County only: whether the district court’s
condition on the suspended sentence fell within its misdemeanor sentencing
authority. 10 State v. Richards, 2 Wn.3d 1027 (2024).
10 We accepted amicus curiae briefing from the Animal Legal Defense Fund.
5 State v. Richards, No. 102627-7
ISSUE
Did the district court act within its sentencing authority when it conditioned
the suspension of Richards’s misdemeanor sentence on turning her dog over to the
county animal control authority?
ANALYSIS
We review sentencing conditions for abuse of discretion. “‘An abuse of
discretion occurs when a decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.’” State v. Deskins, 180 Wn.2d 68, 77, 322 P.3d 780
(2014) (quoting In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546
(2012)).
In this case, the County claims that the district court has a broad and
essentially boundless power to choose what it deems justified when sentencing, so
the judge did not abuse their discretion. Richards argues that the judge must follow
procedural grants of authority, and that the judge here had no statutory power to
demand the surrender of her dog and thus abused their discretion based on that lack
of authority.
To begin, we look at how the property and the court order in this case are
characterized. A dog is nonfungible personal property, and the owner has a valid
legal ownership interest unless some procedure disrupts that interest. Although the
parties’ briefing addresses the sentence using terms like “surrender,” to forcibly
6 State v. Richards, No. 102627-7
deprive an owner of specific property generally constitutes a forfeiture. Hence, the
alternative sentence requiring forfeiture that Richards received constitutes criminal
forfeiture because the sentence deprived Richards of specific, nonfungible personal
property. Criminal forfeiture such as this requires statutory authority. “Every
jurisdiction that has considered the question has held that the power to order
forfeiture is purely statutory,” State v. Alaway, 64 Wn. App. 796, 800, 828 P.2d
591, review denied, 119 Wn.2d 1016 (1992). Accordingly, our state legislature
provides a statutory basis for certain deprivations of property in connection with
criminal activities, authorizing forfeiture and statutorily eliminating the owner’s
property rights. RCW 69.50.505 (authorizing the seizure and forfeiture of property
related to the manufacture of controlled substances); RCW 10.105.010 (authorizing
the forfeiture of property used as an instrumentality in the commission of a felony).
The County does not identify any alternative, nonstatutory basis supporting
forfeiture. Thus, we must determine whether the sentence that deprived Richards of
her personal property was authorized by any statutory power.
Additionally, in this case, Richards was sentenced by a district court. District
courts are courts of limited jurisdiction created by the legislature and, as such, must
operate under specific grants of statutory authority. State v. Granath, 190 Wn.2d
548, 551, 415 P.3d 1179 (2018). For example, RCW 3.66.060(1) grants district
courts jurisdiction over misdemeanors and gross misdemeanors for violations of
7 State v. Richards, No. 102627-7
city or county ordinances, and allows imposition of up to a $5,000 fine and/or one
year in jail. We must decide whether any specific statute authorizes the district
court to order the criminal forfeiture of personal property as a condition of
sentencing for the crime involved here.
The county ordinance at issue has no plain language authorizing criminal
forfeiture. RCWC 16.08.090.11 The county ordinance does address civil or
administrative forfeiture of a dangerous dog. RCWC 16.08.110. Under the
ordinance, civil forfeiture is a separate procedure from criminal forfeiture imposed
on a defendant during sentencing, so this county ordinance does not apply to the
criminal forfeiture order that occurred here. Even assuming the civil forfeiture
ordinance applies in this context, the County did not meet the required
prerequisites provided. 12
Likewise, the incorporated state statute’s penalties do not address criminal
forfeiture either. RCW 16.08.100. The statute lists prerequisites to what is akin to
civil forfeiture, and there are several prerequisites not met here—including notice
11 The county ordinance incorporates punishments provided in the state statute: “Any person violating any of the provisions of Section 16.08.050 shall be subject to the punishments prescribed by Chapter 16.08 of the Revised Code of Washington, as now or hereafter amended.” RCWC 16.08.090(B). 12 RCWC 16.08.080(C) (“No potentially dangerous dog or dangerous dog confiscated by the animal control authority shall be returned to any owner until such owner has paid all civil penalties and costs which have been assessed against such owner under this chapter.”), .110(B) (requiring prompt, reasonable efforts to identify the dog’s owner, .110(C) (requiring notice to owner of impounded dog), .110(D) (allowing owner to correct violations that led to impoundment and to redeem dog), .110(E) (giving owner 96 hours to redeem impounded dog).
8 State v. Richards, No. 102627-7
and an opportunity to correct any deficiencies. Neither the state statute nor the
county ordinance provides the statutory authority to order criminal forfeiture of an
animal without any procedural due process requirements.
The County argues that RCW 3.66.067 is an independent source of authority
for sentencing and is sufficient in itself to give a district court the statutory
authority to condition suspension of a sentence on surrendering a dog. The County
asserts that RCW 3.66.067 grants sentencing courts broad discretion in choosing
whether or under what conditions a defendant’s sentence may be suspended and
what conditions may be required for a suspended sentence.
The County argues that Granath and Deskins support its theory about the
broad power granted in RCW 3.66.067. Neither of those cases support the breadth
of authority argued for here. In Granath, the order of the district court set
conditions of behavior for a suspended sentence but did not order any forfeiture of
property. Further, that case expressly acknowledged that district courts may
operate only under statutory authority. Granath, 190 Wn.2d at 551.
Likewise, in Deskins, the court did acknowledge the statutory authority to
impose broad conditions of probation, but those conditions were behavior related,
setting conditions on what the defendant could not do while on probation. This is a
crucial distinction between the permissible condition in Deskins and the
impermissible forfeiture in this case. In Deskins, as punishment for animal cruelty
9 State v. Richards, No. 102627-7
and confining animals in an unsafe manner, the defendant was prohibited from
“‘own[ing], acquir[ing] or liv[ing] with pets or livestock during the probationary
period.’” 180 Wn.2d at 75 (quoting court papers). Deskins had seven days to
rehome her animals, without restriction as to where the animals would go or what
would happen to the animals when the probationary period (of only two years)
ended. In contrast to the sentence imposed on Richards, Deskins’s animals would
not only survive the sentence but could potentially be reunited with Deskins once
her sentence was served. Deskins was not required to immediately forfeit specific,
nonfungible property for permanent destruction—Deskins was required to conform
her animal-ownership behavior to the temporary standard crafted by the sentencing
court in the pursuit of rehabilitation and community safety. Further, while the court
in Deskins ordered that her pets would be forfeited if not rehomed within the seven
days, we did not review the issue of forfeiture in that case because the issue was
moot, as the probationary period had ended and Deskins never actually forfeited
any of her animals. Here, we review a very different sentence altogether, as
Richards’s sentence was not a probationary ban on animal possession but
effectively an order to permanently forfeit possession of a specific dog.
The suspended sentence statute, RCW 3.66.067, is not applicable here. On
the J&S, the order to surrender the dog seems to have been presented as an
alternative sentence—either 364 days of jail or give up the dog, and the J&S says
10 State v. Richards, No. 102627-7
364 days imposed with 0 days suspended. Even if that general suspended sentence
statute did somehow apply, that statute contains no language authorizing criminal
forfeiture.
In short, we agree with the Court of Appeals that a district court cannot
impose forfeiture absent statutory authorization, and the State is unable to point to
such authorization here. When courts impose forfeiture in a civil or administrative
matter, they do it through statutory civil forfeiture authorization. See, e.g., RCW
69.50.505; RCW 77.15.070. Those statutes require notice and opportunity to be
heard. When courts impose forfeiture after a criminal conviction, they also act
pursuant to statute, and the criminal forfeiture statutes in Washington have the
same procedural requirements in common—notice, time for response, and
opportunity to be heard. See, e.g., RCW 9A.83.030(3)-(5); RCW 9.46.231(2)-(5);
RCW 9.68A.120; RCW 10.105.010(3)-(5). The legislature specifies when and
where forfeiture may be applied; and where it has done so, certain procedural
protections must be followed. The procedural protections apply any time a valid
property interest exists, as is the case with a pet dog.
No state statute or county ordinance authorizes criminal forfeiture of animals
as a consequence of a misdemeanor conviction or as a condition of a misdemeanor
sentence where it is suspended for some period of time. Lacking this statutory
authorization, we hold that the district court exceeded its statutory authority.
11 State v. Richards, No. 102627-7
The County goes on to argue that the sentence suspension requiring that
Thor be surrendered does not contradict the requirements of the civil codes under
which dangerous dogs are confiscated and potentially destroyed. Basically, the
County claims that the sentence suspension statute does not conflict with the civil
statute on dangerous dogs, but rather both provide for different ways to meet the
same end and both provide sufficient due process procedures. The County turns
again to Deskins, as evidencing that a seemingly contradictory law can set a floor
for sentencing and, under RCW 3.66.067, further restrictive sentencing
requirements may be added.
We agree with the Court of Appeals’ rejection of this argument. The opinion
pointed out that Deskins did not address the power of a district court to “impose a
condition on a suspended sentence that contradicts the requirements of a statute or
ordinance.” Richards, 28 Wn. App. 2d at 754. Both the county ordinance and the
state law on dangerous dogs set specific requirements that must occur before a dog
can be destroyed, such as passage of a certain amount of time and an opportunity
to cure the violation. The court stated that the district court’s alternative sentence
was untethered from the limitations adopted by the state and local laws.
RCWC 16.08.090(B) states that any person who violates the County’s
dangerous dog ordinance is subject to the punishments prescribed in chapter 16.08
RCW. RCW 16.08.100(1) provides the relevant punishments, including what the
12 State v. Richards, No. 102627-7
animal control authority must do with a dangerous dog and the grounds for the
gross misdemeanor. The gross misdemeanor and its associated sanctions, as well as
the confiscation and termination of the dog, are punishments of a sort. But nothing
in either the statute or the ordinance allow for a dog to be destroyed without certain
conditions being met. As noted above, nothing in the sentence suspension statute
provides for criminal forfeiture either.
The County correctly notes that no statutory conflict exists. But the lack of
conflict is irrelevant. The fact remains that the district court went beyond what was
authorized in any of the statutes mentioned, and the alternative sentence was
untethered from the statutory limitations and the statutory grant of power.
The County also argues that district courts have flexibility to create “just”
sentences. The County cites to a number of Washington cases that allowed district
courts to order defendants to take actions after a regulatory crime. In one case, a
defendant was given the option of a deferred sentence if he cut down trees that
were taller than a local ordinance allowed. Town of Clyde Hill v. Roisen, 48 Wn.
App. 769, 770, 740 P.2d 378 (1987). In another case, a defendant was found guilty
of a fire code violation, and her sentence was suspended on condition that she
make repairs and have the building inspected again. City of Seattle v. Leach, 29
Wn. App. 81, 83, 627 P.2d 159 (1981). In the third case, a defendant was convicted
of occupying or allowing someone to occupy a building that was not up to code.
13 State v. Richards, No. 102627-7
The defendant was given the option by the superior court to avoid 30 days in jail if
he did not allow the premises to be occupied without bringing it up to code and did
not violate the housing code for 1 year. City of Seattle v. Brenden, 8 Wn. App. 472,
506 P.2d 1314 (1973). All of those cases involved the courts ordering the
defendants to come into compliance with what the local codes required. None of
the cases addressed the matter of forfeiture of property, nor can they be read to
support broad, unfettered sentencing discretion. None of the ordinances in those
cases set procedural rules for the confiscation of personal property.
The County also asserts that broad sentencing discretion facilitates
innovation and creative problem solving. It turns to State v. K.H.-H., 185 Wn.2d
745, 374 P.3d 1141 (2016). In that case, the defendant was ordered to write an
apology letter as part of their rehabilitation. Rehabilitation is a purpose allowed
under the Juvenile Justice Act of 1977, chapter 13.40 RCW. That case can be
easily differentiated from the matter here because, again, it did not involve
criminal forfeiture. State v. K.H.-H. simply does not apply. Further, “creative
sentencing conditions,” dissent at 6, even if they do not exceed the court’s ability
to order the forfeiture of specific personal property, must still reflect some nexus
between the condition and the crime punished. Here, the sentence imposed by the
district court was, according to the district court judge, “as a practical matter, really
. . . a death sentence for [the] animal.” CP at 81. The concept that Thor, a
14 State v. Richards, No. 102627-7
blameless animal, should be killed as punishment for Richards’s failure to properly
confine him deserves some recognition as more than a mere “creative sentencing
condition.” In contrast to a probationary ban on animal possession, a sentence
requiring the death of a specific animal does not have a reasonable connection to
the offense. Thus, even if the district court’s sentence did not improperly deprive
Richards of her personal property without statutory authorization, this sentence
would not be justifiable as an “innovative” or “creative” sentencing condition.
The County does not cite to any cases that allow a district court to give a
defendant the alternative of serving time or forfeiting their personal property.
While a district court may order a defendant to take certain actions, and may even
be creative in its orders, it may not go beyond the scope of the statutory authority
granted to it.
CONCLUSION
We affirm the Court of Appeals.
15 State v. Richards, No. 102627-7
:(&21&85
16 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
No. 102627-7
STEPHENS, J. (dissenting)—The majority poses and answers a question not
raised by the parties or addressed by the appellate court below: whether criminal or
civil forfeiture requires statutory authorization. Majority at 1-2. No one disputes
that it does. Instead, the question we took review to decide concerns the limits of
broad sentencing discretion in misdemeanor cases, specifically whether the district
court imposed a condition on Richards’s suspended sentence that “exceeded its
sentencing authority.” Resp’t’s Arg. at 20; Ord. Granting Rev., State v. Richards, 2
Wn.3d 1027 (2024).
To answer this question, we should start with the language of the sentencing
order. The majority refuses to accept the parties’ agreed understanding, and the
sentencing judge’s clear intention, that the condition at issue was part of a suspended
sentence option. The district court sentenced Richards to 364 days in jail but allowed
for all or some of the jail time to be suspended upon Richards providing “written
proof that the dog Thor has been surrendered to the Cowlitz Humane Society, by
1 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
9/29[/21] at 3:00pm.” Clerk’s Papers (CP) at 179.1 This provision does not
constitute an order to forfeit Thor, nor does it contradict or even implicate the civil
and criminal forfeiture statutes the majority discusses. I would hold that the
condition on Richards’s suspended sentence complies with the statutory authority
granted to district courts to fashion sentencing conditions that further the goals of
rehabilitation and public safety. Accordingly, I respectfully dissent and would
reverse that portion of the Court of Appeals opinion invalidating the sentence.
BACKGROUND
Wahkiakum County (County), like many jurisdictions across the country,
protects its citizens from dangerous dogs by ordinance.2 Per Revised Code of
Wahkiakum County (RCWC) 16.08.050(F), the owner of a dangerous dog must
comply with a number of requirements, including keeping the dog “muzzled and
restrained by a substantial chain or leash and under physical restraint of a responsible
1 See also CP at 180 (further describing the terms for suspending the sentence, including that Richards “need not be taken into custody and jail time shall be re-suspended” upon the “surrender of Thor by 9/29/21 at 3:00pm” and that failing timely proof, Richards would “remain in custody until she provides such proof”). While the space on the preprinted form for indicating a suspended sentence does not specify the number of days suspended, neither does it say simply 0, as the majority claims. An asterisk on the 0 as well as a notation to “see below” refers to handwritten language in two separate locations, describing the terms of suspension, under which the precise number of days could be anywhere from 0 to 364 depending on Richards’s actions. The full judgment and sentence is reproduced in the appendix below. 2 As early as 1897, the United States Supreme Court recognized that dogs were “subject to the police power of the State, and might be destroyed or otherwise dealt with, as . . . is necessary for the protection of its citizens.” Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 705-06, 17 S. Ct. 693, 41 L. Ed. 1169 (1897).
2 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
person” when it is outside its proper enclosure. Anyone who violates a provision of
RCWC 16.08.050 is subject to the punishments set out in chapter 16.08 RCW,
pertaining to dangerous dogs. RCWC 16.08.090(B). The relevant statute, RCW
16.08.100(1), provides that “the owner [of a dangerous dog in violation of the
statute] shall be guilty of a gross misdemeanor.” A district court may sentence a
person convicted of a gross misdemeanor to a maximum of 364 days in jail, a
maximum fine of $5,000, or both. RCW 9A.20.021(2).
Jennifer Richards violated the County’s dangerous dog ordinance in
September 2020, when she left her dangerous dog, Thor, unleashed and
unsupervised on her front porch. Her neighbor, whose dog Thor had previously
attacked, called law enforcement. On stipulated facts, the district court convicted
Richards of failure to enclose and restrain a dangerous dog in violation of RCWC
16.08.050. During sentencing, the judge described Thor’s history as including “two
bites, unprovoked, on an animal.” CP at 82. The judge explained she was “most
concerned with preventing that same kind of thing from occurring” again and that
the restrictions around dangerous dog ownership are designed to “provide some kind
of protection for damages that the dog may do.” Id. Consistent with RCW
9A.20.021, the court imposed a jail term of 364 days but provided that Richards
would “not be required to go into custody if [she] provide[d] written proof that the
3 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
dog, Thor, ha[d] been surrendered to the Cowlitz Humane Society.” CP at 88.
Without such proof, Richards would have to serve her jail time. Id.; CP at 180. The
parties and the Court of Appeals describe this as a suspended sentence. Resp’t’s
Arg. at 20; Resp. to Cross-Pet. for Rev. by Wash. Sup. Ct. at 4; State v. Richards, 28
Wn. App. 2d 730, 734, 537 P.3d 1118 (2023).
We accepted limited review in this case to address whether the district court
exceeded its sentencing authority by conditioning Richards’s suspended sentence on
the surrender of Thor to the Humane Society of Cowlitz County. The Court of
Appeals treated this condition as requiring Thor’s destruction and held that it
impermissibly contradicted the notice and cure provisions of RCWC 16.08.110 and
RCW 16.08.100(1).3
3 While the majority states, “[W]e agree with the Court of Appeals that a district court cannot impose forfeiture absent statutory authorization,” majority at 11, the Court of Appeals did not mention forfeiture. Instead, its holding centered on a perceived conflict between the condition and civil code provisions concerning notice and an opportunity to correct a violation before a dangerous dog is destroyed. Richards, 28 Wn. App. 2d at 756 (“[U]nder the plain language of RCW 16.08.100(1) and RCWC 16.08.110, Thor is not subject to destruction as direct punishment for Richards’ violation of the ordinance until the express prerequisites have been met.”) As will be discussed, the court misapprehended the sentencing condition as well as the scope of misdemeanor sentencing discretion. But, unlike the majority, it did not unnecessarily opine on the law of forfeiture.
4 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
I. The district court acted consistent with its broad misdemeanor
sentencing discretion
District courts enjoy significant discretion in misdemeanor sentencing.
Harris v. Charles, 171 Wn.2d 455, 465, 256 P.3d 328 (2011). Unfettered by the
Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, district courts may craft
creative sentences and conditions “designed to promote rehabilitation, a goal of
misdemeanor . . . sentencing.” Id. at 459. This wide latitude in sentencing is
consistent with “the tradition in American criminal jurisprudence . . . that ‘the
punishment should fit the offender and not merely the crime.’” State v. Anderson,
151 Wn. App. 396, 402, 212 P.3d 591 (2009) (internal quotation marks omitted)
(quoting State v. Herzog, 112 Wn.2d 419, 424, 771 P.2d 739 (1989)). RCW 3.66.067
affirmatively grants district courts the authority to suspend a defendant’s sentence
subject to a variety of case-specific terms. See State v. Bacon, 190 Wn.2d 458, 463,
415 P.3d 207 (2018) (citing State ex rel. Lundin v. Superior Ct., 102 Wash. 600, 602,
174 P. 473 (1918)); see also Harris, 171 Wn.2d at 465 (“Misdemeanor sentencing
courts have the discretion to issue suspended sentences . . . and conditions with
‘carrot-and-stick incentive[s]’ to promote rehabilitation.” (second alteration in
original)). A condition must also “bear a reasonable relation to the defendant’s duty
5 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
to make reparation, or tend to prevent the future commission of crimes.” State v.
Summers, 60 Wn.2d 702, 707, 375 P.2d 143 (1962).
Our case law recognizes district courts’ broad authority to impose creative
sentencing conditions, including those that implicate a defendant’s fundamental
interests or rights. In State v. Olsen, we upheld a condition that “disturbe[d] Olsen’s
privacy interest in order to promote her rehabilitation and protect the public.” 189
Wn.2d 118, 126, 399 P.3d 1141 (2017). The district court convicted Olsen of a gross
misdemeanor, suspending her sentence on the condition that she submit to random
urinalysis testing. Id. at 121. Considering the “unique nature and rehabilitative goals
of the probation system,” we concluded random urinalysis “[was] an important
monitoring tool utilized by the courts during the rehabilitative process of probation.”
Id. at 128, 130. We held the condition did not violate the defendant’s privacy interest
under our state constitution. Id. at 128.4
4 Applying a similar analysis, we have also upheld conditions of community custody for felony convictions under the SRA that implicate various fundamental rights. See, e.g., State v. Riley, 121 Wn.2d 22, 846 P.2d 1365 (1993) (upholding conditions prohibiting defendant from associating with other computer hackers and communicating with computer bulletin boards); State v. Warren, 165 Wn.2d 17, 195 P.3d 940 (2008) (upholding lifelong prohibition on defendant contacting his wife); State v. Hai Minh Nguyen, 191 Wn.2d 671, 425 P.3d 847 (2018) (upholding condition prohibiting defendant from possessing sexually explicit materials); State v. Wallmuller, 194 Wn.2d 234, 449 P.3d 619 (2019) (upholding condition prohibiting defendant from frequenting places where children congregate); State v. Johnson, 197 Wn.2d 740, 487 P.3d 893 (2021) (upholding condition requiring defendant to use Internet only through filters).
6 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
The majority suggests that district courts’ sentencing authority is limited to
imposing conditions that affect a defendant’s “behavior,” but not their property.
Majority at 9-10. Our precedent does not support this distinction. In a case also
involving dangerous animals, State v. Deskins, we upheld a condition even more
restrictive than the one at issue here, prohibiting the defendant from living with or
owning any animals. 180 Wn.2d 68, 75, 322 P.3d 780 (2014). Although the majority
describes this as a behavioral condition, in fact, Deskins owned several animals at
the time of sentencing and was required to surrender them to another home in order
to comply with the condition. Id. The only difference with the condition imposed
on Richards is that the district court specified where she would surrender Thor: to
the Humane Society of Cowlitz County.
The majority also seems to reject the parties’ characterization of Richards’s
suspended sentence, holding RCW 3.66.067 is inapplicable to this case because “the
order to surrender the dog seems to have been presented as an alternative sentence.”5
Majority at 11. Whether we characterize the sentence as an alternative to
confinement or a suspended sentence or we regard it as affecting Richards’s behavior
versus her property interest in Thor, the effect is the same. The sentencing judge,
5 The majority is inconsistent in characterizing Richards’s sentence and at times describes Thor’s surrender as a condition on a suspended sentence. See majority at 1 (describing Richards’s sentence as almost a year in jail “suspended on the condition of surrendering her dog for termination”).
7 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
working within the confines of the preprinted form, was clear about her intent to
suspend the jail time if and when Richards surrendered Thor to animal control. And
she acted well within her statutory authority in imposing such a condition on the
suspension of the jail time. As in Olsen, the condition served the interests of public
safety and Richards’s rehabilitation. See CP at 82 (explaining court’s intention to
prevent Thor from attacking more animals unprovoked and incentivize Richards’s
compliance with dangerous dog ownership requirements). There is no dispute that
the district court could have sentenced Richards to 364 days in jail for her gross
misdemeanor conviction, with no way to avoid confinement. Instead, it offered her
a choice. That this was a very difficult choice, and even that it implicated
fundamental rights to own property or enjoy companionship, does not render the
condition impermissible. See Riley, 121 Wn.2d at 37 (“Limitations upon
fundamental rights are permissible, provided they are imposed sensitively.”).
II. Richards’s sentence does not constitute an order to forfeit Thor
Most troubling is the majority’s characterization of Richards’s sentence as
ordering a statutorily unauthorized criminal forfeiture. Majority at 2, 12. As noted,
neither the parties nor the Court of Appeals viewed the condition as a forfeiture
order. The district court sentenced Richards to 364 days in jail with the option of
avoiding some or all of the jail time on proof of Thor’s surrender to the Humane
8 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
Society of Cowlitz County. Richards herself describes this as a “tormenting choice”
between her dog’s life and her “personal freedom.” Resp. to Cross-Pet. for Rev. by
Wash. Sup. Ct. at 6. Richards’s sentence does not include an order to destroy or
forfeit Thor.
Neither RCWC 16.08.100 nor RCW 16.08.100 contemplate an action that
amounts to criminal or civil forfeiture. The county code calls for the “impoundment
and confiscation” of any potentially dangerous dog or dangerous dog in violation of
the county’s requirements. RCWC 16.08.110(A). If the owner corrects the
violation, the owner may “redeem” the dog from impoundment “upon payment . . .
of the costs of impoundment.” Id. at (D), (E). Similarly, the statute requires that
animal control must “immediately confiscate[]” any dangerous dog in violation of
the statute. RCW 16.08.100(1). The owner then has 20 days to correct the violation
and “is responsible for payment of the costs of confinement and control.” Id.
The majority appears to read the ordinance and statute to not allow criminal
forfeiture but to authorize civil forfeiture by analogy. Majority at 8-9 (contrasting
lack of authority for criminal forfeiture with language in RCWC 16.08.110 and
RCW 16.08.100 that is “akin to civil forfeiture”). But the language of RCWC
16.08.110 and RCW 16.08.100—“impoundment” and “confiscation”—results only
in a temporary hold on a dangerous animal, not any form of forfeiture. And, had the
9 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
County and legislature intended to authorize civil forfeiture in chapter 16.08 RCWC
and chapter 16.08 RCW, they knew how to say so explicitly. See, e.g., RCW
16.52.200(2) (mandating court ordered forfeiture of certain animals owned by
anyone in violation of the animal cruelty statute); see also RCW 69.50.505 (listing
as property “subject to seizure and forfeiture” tools and instrumentalities used or
intended for use in an act violating the Uniform Controlled Substances Act).
Moreover, RCWC 16.08.100 and RCW 16.08.100 are just two possible ways
the County could bring Thor into the custody of animal control. The district court’s
sentence does not implicate either of these statutes. It simply allows Richards the
option of avoiding jail time by surrendering Thor herself. See Deskins, 180 Wn.2d
at 79 (noting statutory provision “sets a floor for what a trial court must do when it
orders forfeiture—it does not set the ceiling for the entire sentence”); see also
Warren, 165 Wn.2d at 31-35 (upholding sentence condition prohibiting contact with
wife despite separate statutory provision governing procedures for no-contact
orders). This is an independent way to achieve the goal of separating owner and
dangerous dog, even though the choice may not feel like a free choice in light of the
penalty of jail time.
The majority at times treats the sentence as an order to destroy Thor, and
thereby posits a statutory conflict, as did the Court of Appeals. Majority at 13
10 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
(“[N]othing in either the statute or the ordinance allow for a dog to be destroyed
without certain conditions being met”). However, Richards’s jail time is conditioned
not on Thor’s destruction, but on his surrender to a third party. As the County points
out in its briefing, it had asked the court to order Thor’s destruction, but the court
“took pains . . . to leave this question open.” Suppl. Br. of Cross-Appellant at 4.
The County recognizes it is unlikely that Thor, as a designated dangerous dog, would
be the subject of adoption once surrendered to the Humane Society of Cowlitz
County. 6 If destruction follows, it is not because the court ordered it, however, but
as a result of Richards’s (admittedly difficult) choice to surrender Thor.
My disagreement with the majority lies in its narrow reading of the broad
sentencing discretion afforded to district courts to fashion “carrot and stick”
incentives that support rehabilitation and public safety. Harris, 171 Wn.2d at 465.
Under the majority’s view, specific statutory authorization would be required for
every sentencing condition that requires a convicted person to give up a property or
other fundamental right in order to receive a benefit. On top of this, the majority
confuses “‘what a trial court must do’” before it orders an action under one statutory
6 At oral argument before the Court of Appeals, the County aptly observed, “There is the possibility, though it is vanishingly unlikely, that somebody . . . will adopt even a dangerous dog.” Wash. Ct. of Appeals oral arg., State v. Richards, No. 56949-3-II (Sept. 15, 2023), 10 min., 51 sec. to 14 min., 58 sec., video recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org/video/division-2-court-of-appeals-2023091076/?eventID=2023091076
11 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
procedure “‘with what it may do’” to incentivize that same action through a
suspended sentence condition. Deskins, 180 Wn.2d at 79 (quoting State v. Deskins,
noted at 170 Wn. App. 1021, 2012 WL 3861275, at *7, 2012 Wash. App. LEXIS
2079, at *19). This collapses unrelated civil and criminal code provisions and is
contrary to long-standing precedent. As we noted in Olsen, “[a] sentencing court
has great discretion to impose conditions” to ensure that a suspended sentence
“‘serves as a period of genuine rehabilitation and that the community is not harmed’”
by the convicted person (or her dangerous dog) “‘being at large.’” 89 Wn.2d at 128
(quoting Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S. Ct. 3164, 97 L. Ed. 2d 709
(1987)).
The district court acted within its statutory authority to fashion a misdemeanor
sentence by offering Richards the option to have her jail time suspended on the
condition that she surrender her dangerous dog to the Humane Society of Cowlitz
County. This condition did not constitute an order of forfeiture, and it did not
contradict animal control code provisions pertaining to civil impoundment and
destruction of animals. I would reverse that portion of the Court of Appeals opinion
invalidating the sentencing condition and affirm Richards’s conviction and sentence.
12 State v. Richards, No. 102627-7 (Stephens, J., dissenting)
APPENDIX