                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         December 4, 2018




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 50302-6-II

                                Respondent,

         v.

    JEREME DAVID NORBERG,                                     UNPUBLISHED OPINION

                                Appellant.

        Lee, J. — Jereme D. Norberg appeals the trial court’s imposition of legal financial

obligations (LFOs), arguing that the imposition of the LFOs violates substantive due process.

Norberg also argues that the trial court failed to comply with RCW 10.01.160(3) and State v.

Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015), by imposing LFOs without making an

individualized inquiry into Norberg’s present or future ability to pay. 1 Because the trial court

imposed only mandatory LFOs, we disagree. However, we remand to the trial court to apply the

2018 legislative amendments to the LFO statutes.



1
  Norberg also asks us to exercise our discretion and decline to impose appellate costs. If the State
files a cost bill for this appeal, Norberg may object and a commissioner of this court will determine
whether awarding costs is warranted under RAP 14.2.
No. 50302-6-II



                                               FACTS

       The trial court convicted Norberg of attempting to elude a pursuing police vehicle and

driving while license suspended in the third degree. The trial court imposed a $500 crime victim

assessment, $200 criminal filing fee, and $100 DNA collection fee. Norberg appeals the trial

court’s imposition of LFOs.

                                           ANALYSIS

       Norberg argues that the imposition of LFOs violates substantive due process. Norberg also

argues that the trial court failed to comply with RCW 10.01.160(3) and Blazina by imposing the

LFOs without making an individualized inquiry into Norberg’s ability to pay. We disagree and

affirm the trial court’s imposition of LFOs.

       At the time Norberg was sentenced, the crime victim assessment, criminal filing fee, and

DNA collection fee were mandatory LFOs. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755

(2013). We have held that imposition of mandatory LFOs does not violate substantive due process.

State v. Seward, 196 Wn. App. 579, 585-86, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015

(2017). And RCW 10.01.160(3) and Blazina do not apply to the imposition of mandatory LFOs.

Seward, 196 Wn. App. at 587; State v. Mathers, 193 Wn. App. 913, 920-22, 376 P.3d 1163, review

denied, 186 Wn.2d 1015 (2016).2



2
  The dissent asserts that mandatory LFOs violate substantive due process because there is no
rational basis for imposing LFOs against offenders who are unable to pay them. But the dissent’s
opinion only performs a rational basis analysis based on the current set of facts—that the defendant
is indigent and unlikely to be able to pay LFOs. A rational basis analysis considers any conceivable
set of facts to determine whether there is a rational basis for imposing LFOs. Seward, 196 Wn.
App. at 584 (“In applying this standard, we may ‘assume the existence of any necessary state of
facts which [we] can reasonably conceive in determining whether a rational relationship exists


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No. 50302-6-II



       Here, the trial court properly imposed mandatory LFOs as required by statute in effect at

the time. However, 2018 legislative amendments to the LFO statutes prohibit the superior courts

from imposing the $200 criminal filing fee upon indigent defendants and the $100 DNA collection

fee if the offender’s DNA has already been collected as the result of a prior conviction. LAWS OF

2018, ch. 269, §§ 17, 18; RCW 36.18.020(2)(h); RCW 43.43.7541. Our Supreme Court has

recently held that the 2018 legislative amendments to the LFO statutes apply prospectively to cases

pending on appeal. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018). Therefore, we

remand to the trial court to determine whether to impose the $200 criminal filing fee and the DNA

collection fee in light of the 2018 legislative amendments.




between the challenged law and a legitimate state interest.’ ”) (alteration in original) (quoting
Nielsen v. Dep’t of Licensing, 177 Wn. App. 45, 53, 309 P.3d 1221 (2013)); see also Amunrud v.
Bd. of Appeals, 158 Wn.2d 208, 222, 143 P.3d 571 (2006) (same), cert. denied, 549 U.S. 1282
(2007). Although it is currently unlikely that the defendant will have the ability to pay LFOs, there
are conceivable sets of facts that may result in the defendant being able to pay LFOs in the future.
Seward, 196 Wn. App. at 585-86. Because it is conceivable that a defendant may be able to pay
LFOs in the future, there is a rational basis for the legislature to designate some LFOs as
mandatory. Id..

        The dissent also asserts that the fact that mandatory LFOs sometimes serve their purpose
by being imposed on those who can pay, or may eventually serve their purpose because the
indigency preventing defendants from currently being able to pay their LFOs could cease, cannot
save mandatory LFOs under rational basis review because of the inherent contradiction of
imposing mandatory LFOs on indigent defendants. But the dissent’s analysis is contrary to law.
“Under [the rational-basis] test a party challenging the constitutionality of a statute must show that
the law is wholly unrelated to the achievement of a legitimate state purpose.” In re Interest of J.R.,
156 Wn. App. 9, 19, 230 P.3d 1087 (2010) (citing Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d
604 (1997)). The dissent even recognizes that mandatory LFOs are not wholly unrelated to the
legislature’s purpose because there are times they serve the legislative purpose. Accordingly,
mandatory LFOs must survive a rational-basis review. We respectfully disagree with the dissent
that mandatory LFOs violate substantive due process.


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No. 50302-6-II



        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.



                                                    Lee, J.
 I concur:



 Maxa, C.J.




                                                4
No. 50302-6-II



         BJORGEN, J. (dissenting) — For the reasons set out in my dissent in State v. Seward, 196

Wn. App. 579, 384 P.3d 620 (2016), review denied, 188 Wn.2d 1015 (2017), I believe that the

mandatory legal financial obligations (LFOs) here assessed fail the rational basis test and deprive

Jereme Norberg of substantive due process.

         I agree that we apply the highly deferential rational basis test in determining whether

these mandatory LFOs offend the requirements of substantive due process. The basic demand of

the test is a rational relationship between the challenged law and a legitimate state interest.

Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 222, 143 P.3d 571 (2006). In making this

determination, we may assume the existence of any necessary state of facts which can reasonably

be conceived. Id.

         The central purpose of mandatory LFOs is to raise money to help fund certain elements

of the criminal justice system, without doubt a legitimate state interest. Imposing these

obligations on those with the ability to pay serves that interest. On the other hand, requiring

monetary payments from those who cannot and reasonably will not be able to pay them does

nothing to serve that purpose. To the contrary, the principal consequence of imposing mandatory

LFOs on such persons is to harness them to a debt that they realistically have no ability to pay,

keeping them in the orbit of the criminal justice system and within the gravity of temptations to

reoffend that our system is designed to still. Levying mandatory LFOs against those who cannot

pay them thus increases the system costs they were designed to relieve. Without a Blazina-like3

individualized determination of ability to pay, the assessment of mandatory LFOs not only fails



3
    State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).


                                                  5
No. 50302-6-II



to serve its purpose, but actively contradicts that purpose. The self-contradiction in such a

system crosses into an arbitrariness that not even the rational basis test can tolerate.

        The majority analysis relies on the authority of Seward. Seward, in turn, would salvage a

reasonable relationship through a type of dragnet rationale: because these assessments would be

imposed on some who can pay, their imposition on those who cannot serves the purpose of

raising money. In a temporal variant of the same approach, Seward also argues that imposing

these obligations on those who cannot pay serves the same purpose, because they may be able to

pay at some point in the future. Seward, 196 Wn. App. at 585-86.

        As shown, without a Blazina inquiry the imposition of mandatory LFOs will actively

contradict and work against its purpose in the cases of indigent defendants. The Seward

rationales attempt to save this contradiction by pointing out that the law may serve its purpose in

some other instances or by hypothesizing that the contradiction may someday cease. However,

this ineluctable contradiction between purpose and effect in some instances is not effaced by its

absence in others. Nor is the contradiction relieved by the doubtful hope that it may some day

pass away. These uses of the imagination are far removed from positing different ways in which

a law may serve its purpose, which is the sort of speculation invited by the rational basis

standard.

        For these reasons, I would conclude that Norberg has raised a manifest constitutional

error and that the assessment of mandatory LFOs with no inquiry into ability to pay fails the

rational basis test. Therefore, I dissent.

                                                       _________________________________
                                                       Bjorgen, J.



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