                                                                                                    FILED
                                                                                            COURT OF APPEALS
                                                                                                 DIVISION II
                                                                                           2015 JAN 27
                                                                                                       AN 8: 50

    IN THE COURT OF APPEALS OF THE STATE OF WASHIN'liuWATON

                                           DIVISION II

CECIL DUDGEON,                                                          No. 46032 -7 -II


                                   Appellant,


          v.



 STEVE BOYER, SHERIFF OF KITSAP
 COUNTY,                                                         UNPUBLISHED OPINION


                                   Respondent.


          WORSWICK, P. J. —    Cecil Dudgeon filed a petition for writ of certiorari requesting that

the superior court direct the Kitsap County Sheriff' s Department to modify his sex offender risk

classification from level III to level I. The superior court granted Kitsap County Sheriff Steve

Boyer' s CR 12( b)( 6) motion to dismiss Dudgeon' s petition for failure to state a claim upon

which relief could be granted. Dudgeon appeals from the superior court' s dismissal order. We

affirm.


                                                 FACTS1




          After his release from civil commitment as a sexually violent predator, Dudgeon reported

to the Kitsap County Sheriff's Office to register as a sex offender as required under RCW



1 Because we are reviewing the trial court' s grant of Boyer' s CR 12( b)( 6) motion to dismiss, the
following facts are based on the allegations contained in Dudgeon' s petition, which allegations
we accept as true for the purpose of reviewing his appeal. See Reid v. Pierce County, 136 Wn.2d
195, 201, 961 P. 2d 333 ( 1998) ( When reviewing a trial court' s order of dismissal under CR
12( b)( 6), the appellate court " accept[ s] as true the allegations in a plaintiff' s complaint and any
reasonable     inferences therein. ")
No. 46032 -7 -II



9A.44. 130. Dudgeon met with Detective Doug Dillard, the Kitsap County Community Sex

Offender Registration Officer. Dudgeon presented several documents to Dillard, which

documents Dudgeon claimed to show that he should be classified as a low risk level I sex

offender. Dillard refused to consider Dudgeon' s documents, stating that he was adopting the end

of sentence review committee' s classification of Dudgeon as a high risk level III sex offender.

The Kitsap County Sheriffs Office classified Dudgeon as a level III sex offender on February
12, 2013.


        On December 17, 2013, Dudgeon filed petition for writ of certiorari, which petition

requested   the   superior court     to " direct[] the   Kitsap County    Sheriff s Department ...      to modify

 his] level III   risk classification."     Clerk' s Papers ( CP) at 2. Boyer filed a CR 12( b)( 6) motion to

dismiss Dudgeon' s petition. Boyer' s motion asserted that the court lacked authority to direct a

particular result in the discretionary risk level classification decision of the sheriffs office and,

thus, must dismiss Dudgeon' s petition for failing to state a claim upon which relief could be

granted. The superior court held a hearing on Boyer' s motion to dismiss on February 27, 2014.

         At the hearing, the superior court asked Boyer what relief would be available to Dudgeon

if the sheriff s office acted arbitrarily and capriciously when classifying him as a level III sex

 offender. Boyer responded that the court could invalidate the sheriffs classification decision and



 2 RCW 72. 09. 345 requires the end of sentence review committee to submit to local law
 enforcement agencies a risk level classification for sex offenders that are being released from
 confinement. When classifying a risk level for an offender, local law enforcement agencies are
 required   to   review   the   committee' s risk   level   classification.   RCW 4. 24. 550( 6).   And if the local

 law enforcement agency " classifies an offender differently than the offender is classified by the
 end of sentence review committee ...            the   law   enforcement      agency ...   shall notify the end of
 sentence review committee ...           and submit its reasons supporting the change in classification."
 RCW 4. 24. 550( 10).


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No. 46032 -7 -II



send the case back to the sheriff's office for a new decision, but that it could not direct the

sheriff' s office to reach a particular result. Dudgeon argued that the trial court had authority to

modify his sex offender risk level classification under RCW 7. 16. 040 and RCW 9A.44. 140 if it
determined that the sheriff's office' s classification was not supported by substantial evidence.

The trial court orally ruled:

                 Well, I think     you' re        both   right.   I think that Mr. Dudgeon does have the
        opportunity to    petition [       the]    Superior Court through a writ of certiorari to ask
        whether or not —    or for the Court to make a determination as to whether or not the
        Sheriff's Office' s designation of a level three was arbitrary and capricious, so I
        think he is entitled to, under [ In re Det. of] Enright, [ 131 Wn. App. 706, 128 P. 3d

        1266 ( 2006),] seek that relief.
                  But, likewise, I     agree with [ Boyer' s counsel]:        I don' t believe that I have the
                              or power        to   redesignate        Mr. Dudgeon. I think all I can do, if I
        ability, authority,
        was inclined to do it, if I was convinced to do it, would be to send Mr. Dudgeon
        and his case back to the Sheriff's Office for another evaluation, if I were to
        determine that the first evaluation was arbitrary and capricious.
                   So, Mr. Dudgeon, I guess what I' m telling you is that you' re asking that I
        somehow engage in a fact finding hearing, and then ultimately you' re asking I
        reevaluate you, and you' re asking that I place you as a level one because you believe
        that' s the more appropriate assignment. And I don' t believe I have that authority
        or power. I think all I can do is determine whether or not the Sheriff s Office acted
        arbitrarily and capriciously in determining that you were a level three.
                So, I guess, I' m granting the motion to dismiss as it relates to the request
        for                   denying the motion as [ it] relates to —if you want to make
              reclassification.   I'   m

        a request as to whether or not the Sheriff s Department' s determination was
        arbitrary and capricious. And in your response, you indicate that you do find that —
        you believe that it was error, and that the level three assignment was unsupported
        by substantial evidence.
                So you' re in one part arguing, I think to a certain extent, the Sheriff's Office
        was arbitrary and capricious in its determination; but then you go on to ask me to
        reclassify you, and that' s not a power that I believe I have under the statute.

 Report of Proceedings at 12 -14. That same day, the superior court entered its written order

 dismissing   Dudgeon'   s petition under          CR 12( b)( 6). Dudgeon appeals.




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No. 46032 -7 -II



                                                       ANALYSIS


         Dudgeon contends that the superior court erred when it dismissed his petition for writ of

certiorari under CR 12( b)( 6) because the superior court had authority under RCW 7. 16. 040 to

direct the Sheriff' s Office to classify him as a level I sex offender. We disagree and affirm the

superior court' s order dismissing Dudgeon' s petition for writ of certiorari.

         We review de novo a trial court' s ruling on a CR 12( b)( 6) motion for failure to state a

claim upon which relief can be granted. Reid v. Pierce County, 136 Wn.2d 195, 200 -201, 961

P. 2d 333 ( 1998).       When reviewing whether the trial court' s dismissal order was proper under CR
12( b)( 6), we assume that the factual allegations contained within the plaintiff' s complaint are


true, as well as any       reasonable      inferences therein. Reid, 136 Wn.2d       at   201.   We will affirm a


trial court' s CR 12( b)( 6) dismissal order " only if it appears beyond a reasonable doubt that no

facts   exist   that   would   justify   recovery."   Cutler   v.   Phillips Petroleum Co., 124 Wn.2d 749, 755,


881 P. 2d 216 ( 1994).

          Chapter 7. 16 RCW controls the procedures for a court' s consideration of a petitioner' s

writ of certiorari. RCW 7. 16. 040 provides:

          A writ ofreview3' shall be granted by any court, except a municipal or district court,
          when an inferior tribunal, board or officer, exercising judicial functions, has
          exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally,
          or to correct any erroneous or void proceeding, or a proceeding not according to the
          course of the common law, and there is no appeal, nor in the judgment of the court,
          any plain, speedy and adequate remedy at law.




 3
     RCW 7. 16. 030      states, "   The writ of certiorari may be denominated the writ of review."

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No. 46032 -7 -II



        Dudgeon argues that RCW 7. 16. 040 provided the superior court with statutory authority


 to correct" the sheriff' s office' s risk classification decision by directing the sheriff' s office to

classify him   as a   level I   sex offender.   He thus contends that the trial court erred when it

dismissed his   petition under      CR 12( b)( 6). He is incorrect.


        When deciding whether to grant a petition for writ of certiorari, a superior court' s

authority is limited to a determination of the following five questions:

                      1) Whether the body or officer had jurisdiction of the subject matter of the
        determination under review.
                   2) Whether the authority, conferred upon the body or officer in relation to
        that subject matter, has been pursued in the mode required by law, in order to
        authorize it or to make the determination.
                   3) Whether, in making the determination, any rule of law affecting the .
        rights of the parties thereto has been violated to the prejudice of the relator.
                   4) Whether there was any competent proof of all the facts necessary to be
        proved, in order to authorize the making of the determination.
                5) Whether the factual determinations were supported by substantial
        evidence.




RCW 7. 16. 120.        Dudgeon' s petition for writ of certiorari, however, requested relief beyond that

 authorized under RCW 7. 16. 120, because it sought a factual determination from the superior court

that he should be classified as a level I sex offender.

                                            21 Wn.          566, 574 -75, 586 P. 2d 509 ( 1978),   Division
         In Andrew      v.   King County,            App.

 One of this court held that a superior court exceeded its scope of review under RCW 7. 16. 120

 when it made a factual determination that was within the discretionary decision -making authority

 of the inferior tribunal being reviewed. In so holding, the Andrew court reasoned:

                   The Superior Court       cannot ...   determine from the testimony and evidence
         what the facts were. Nor can we.
                                It seems clear that our statutory certiorari and review proceeding
                   contemplates a review in the courts of the proceeding had in an inferior
                   tribunal only upon the record of such proceeding made therein, and that


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No. 46032 -7 -II



                   such review is in no sense a trial de novo of the questions determined by the
                   inferior tribunal sought to be reviewed."


21 Wn.   App.     at   574 ( quoting State      ex.   Rel. Spokane &    I.E.R. Co. v. State Board ofEqualization,

75 Wash. 90, 134 P. 695 ( 1913));            see also Seattle Police Department v. Werner, 163 Wn. App.

899, 907, 261 P. 3d 218 ( 2011) (           When reviewing an inferior tribunal' s decision under RCW

7. 16. 120, "   an appellate court is not to substitute its own judgment for that of the fact finder. ").

The Andrew court thus held that, under RCW 7. 16. 120, the only proper remedy from a

successful writ of certiorari was to remand to the inferior tribunal for a new proceeding. 21 Wn.

App. 576.

         Here, RCW 4.24.550( 6)( b) vested the Kitsap County Sheriff' s Office with statutory

authority to " assign risk level classifications to all offenders about whom information will be
disseminated."         In assigning a risk level classification, the Kitsap County Sheriff' s Office
exercises a quasi- judicial          function   and   has "   significant   discretion in making that decision." In re


Enright, 131 Wn.         App.   at   715.   Thus, when a court reviews a classification decision in a petition

 for writ of certiorari and determines that substantial evidence did not support the decision under

 RCW 7. 16. 120( 5),       the only proper remedy is to vacate the classification decision and to remand

 to the local law enforcement agency for a new classification decision. Andrew, 21 Wn. App.

 576; Werner, 163 Wn. App. at 907.

          Accordingly, accepting the truth of Dudgeon' s allegations, and even assuming that such
 allegations support a conclusion that his classification as a level III sex offender was not




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No. 46032 -7 -II




supported by substantial evidence,4 the superior court' s dismissal of his petition was nonetheless

proper because Dudgeon sought a remedy that was unavailable to him in a petition for writ of

certiorari. We therefore affirm the superior court' s grant of Boyer' s CR 12( b)( 6) motion to

dismiss for failure to state a claim upon which relief can be granted.

          A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                                                     Worswick, P. J

 We concur:




4 Although we need not reach the issue because we hold that the superior court' s dismissal of
Dudgeon' s petition under CR 12( b)( 6) was proper in light of Dudgeon' s request for a remedy
that was unavailable to him, we note that the sheriff' s office' s risk level classification here does
 not appear arbitrary and capricious or unsupported by substantial evidence. Under RCW
 4. 24. 550( 6), the sheriff' s office was required to consider the end of sentence review committee' s
 risk level classification when assigning a risk level classification to Dudgeon. Dudgeon
 previously petitioned the superior court to direct the end of sentence review committee to rescind
                        decision,                    the   superior court   denied   on   February 21, 2013.   The
 its   classification               which petition


 February 21 superior court order denying Dudgeon' s prior petition, the committee' s
 classification decision, and the evidence relied upon by the committee in reaching that decision
 are not reviewable in this appeal from the superior court' s order dismissing Dudgeon' s
 December 17, 2013 petition.




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