      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES DIDLAKE, DUSTIN
JOHNSON, SHELLY BURKE,                        No. 71633-6-1
MONICA FISCHER, MICHAEL
BENNETT, individually and on behalf           DIVISION ONE
                                                                                       o
of all classes of similarly situated                                        ro        <ao
                                                                            S         —'cr
persons,
                                              PUBLISHED OPINION
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WASHINGTON STATE, and                                                            *'    —^C3

WASHINGTON STATE DEPARTMENT
OF LICENSING

                    Respondents.              FILED: March 16, 2015


      Leach, J. — Washington's implied consent statute, RCW 46.20.308,

requires that a driver arrested for driving under the influence of an intoxicant

(DUI) pay a filing fee to obtain an administrative review hearing to prevent a

driver's license suspension or revocation.    James Didlake, Dustin Johnson,

Shelly Burke, Monica Fischer, and Michael Bennett (collectively Didlake) appeal

a trial court decision that this fee for hearing requirement does not violate

procedural due process. Because the driving privilege is not a fundamental right

and the Department of Licensing (Department) waives the fee for indigent

drivers, Didlake does not establish a constitutional due process violation. And
NO. 71633-6-1/2



because he received notice and a hearing, Didlake does not show that the fee

requirement violated due process in his case. Therefore, he cannot prove any

set of facts that would justify recovery for a procedural due process violation. We

affirm.


                                      FACTS


          At various times and places in 2010 or 2011, police arrested James

Didlake, Dustin Johnson, Shelly Burke, Monica Fischer, and Michael Bennett for

DUI. As required by Washington's implied consent law, the Department initiated

license suspension proceedings against them.        Didlake, Burke, Fischer, and

Bennett each paid a $200 fee for an administrative review hearing. After they

prevailed at their hearings, the Department rescinded their license suspensions.

Johnson paid two fees and prevailed at one of his two hearings related to two

separate arrests.

          Didlake filed a class action lawsuit against the Department, asking for

injunctive and declaratory relief, plus a refund and damages. He alleged that the

statutory fee for an administrative hearing violates due process.1 Didlake filed a

motion for class certification under CR 23. After filing its answer, the Department

filed a motion to dismiss Didlake's lawsuit under CR 12(b)(6).




          1 While the complaint alleged both substantive and procedural due
process violations, Didlake has abandoned any substantive due process
argument on appeal.
                                        -2-
NO. 71633-6-1/3



       At a hearing on November 16, 2012, the trial court heard the Department's

12(b)(6) motion. The court did not hear argument on Didlake's motion for class

certification.


        In a memorandum opinion and order entered April 5, 2013, the trial court

granted the Department's motion to dismiss.      Didlake asked the Washington

Supreme Court for direct review.      On March 5, 2014, the Supreme Court

transferred the case to this court.


                             STANDARD OF REVIEW


       When a party files an answer before filing a motion to dismiss under CR

12(b)(6), a court should consider the motion as one for judgment on the

pleadings under CR 12(c).2 Motions under CR 12(b)(6) and 12(c) raise identical

issues, whether a request for relief states a claim for which a court can grant

relief, and this court reviews decisions under either rule de novo.3 A court may

dismiss a complaint under CR 12 only if"it appears beyond doubt that the plaintiff

cannot prove any set of facts which would justify recovery."4 The court must

assume the truth of facts alleged in the complaint, as well as hypothetical facts,




       2 Blenheim v. Dawson & Hall. Ltd., 35 Wn. App. 435, 437, 667 P.2d 125
(1983).
       3 Gaspar v. Peshastin Hi-Up Growers, 131 Wn. App. 630, 634-35, 128
P.3d 627 (2006).
       4 Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104
(1998).
                                       -3-
NO. 71633-6-1/4



viewing both in the light most favorable to the nonmoving party.5 If the trial court

considered matters outside the pleadings, the reviewing court treats a CR 12

motion as a motion for summary judgment under CR 56(c).6 Summary judgment

is appropriate if there are no genuine issues of material fact and the moving party

is entitled to judgment as a matter of law.7      Here, the trial court considered

matters outside the pleadings: a declaration and fee study about administrative

costs, which the Department filed to support its motion to dismiss. Therefore, the

summary judgment standard applies. Because the parties agree that no disputes

of material fact exist, our de novo review under CR 56(c) is the same as it would

be under CR 12.


      A constitutional challenge to a statute presents a question of law that this

court also reviews de novo.8 A reviewing court presumes that a statute is

constitutional, and the party challenging it bears the burden of proving otherwise

beyond a reasonable doubt.9       A party may bring a facial or an as-applied

challenge.10 To prevail in a facial challenge, a party must show that "no set of



      5 M.H. v. Corp. of Catholic Archbishop of Seattle, 162 Wn. App. 183, 189,
252 P.3d 914 (2011) (citing Postema v. Pollution Control Hearings Bd., 142
Wn.2d 68, 122-23, 11 P.3d 726 (2000)).
      6 CR 12(c); P.E. Svs., LLC v. CPI Corp., 176 Wn.2d 198, 203-04, 289 P.3d
638 (2012); Blenheim, 35 Wn. App. at 438.
      7 CR 56(c).
      8 City of Bothell v. Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 (2011).
      9 Morrison v. Dep't of Labor & Indus., 168 Wn. App. 269, 272, 277 P.3d
675 (2012) (citing State v. Shultz, 138 Wn.2d 638, 642, 980 P.2d 1265 (1999)).
      10 City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).
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NO. 71633-6-1/5



circumstances exists in which the statute, as currently written, can be

constitutionally applied."11   By contrast, a party succeeds in an as-applied

challenge by proving that an otherwise valid statute is unconstitutional as applied

to that party.12

                                    ANALYSIS


Implied Consent Statute

       Under Washington law, drivers in the state have given "implied consent" to

testing for alcohol or drug impairment.13 This law "'provides law enforcement

officers with an effective means of obtaining physical evidence of intoxication

since any person operating a motor vehicle on the roads of this state is deemed

to have consented to the administration of a blood alcohol test.'"14

       The arresting law enforcement officer must immediately notify the

Department of the arrest and transmit a sworn report within 72 hours.15 This

sworn report must state that the officer had reasonable grounds to believe that

the arrestee drove a motor vehicle under the influence of intoxicating liquor or



       11 Moore, 151 Wn.2dat669.
       12 Moore, 151 Wn.2d at 668-69.
       13 Former RCW 46.20.308(1) (2008).           In 2013, Engrossed Second
Substitute Senate    Bill   5912 amended      RCW 46.20.308.     The amendments
renumbered several subsections and eliminated statutory implied consent to
tests of a driver's blood. Laws of 2013, ch. 35, § 36. The citations here refer to
the law in effect at the time the appellants requested administrative hearings.
       14 Nielsen v. Dep't of Licensing, 177 Wn. App. 45, 49, 309 P.3d 1221
(2013) (guoting State v. Battels, 112 Wn.2d 882, 885, 774 P.2d 1183 (1989)).
       15 Former RCW46.20.308(6)(e).
                                        -5-
NO. 71633-6-1/6



drugs.16 The report must further state that either the driver refused to take a test

or took a test that revealed a blood alcohol concentration (BAC) of 0.08 or

higher.17 Upon receipt of the officer's report, the Department "shall suspend,

revoke, or deny" the driver's license effective 60 days from the date of arrest or

when the suspension is sustained at a hearing, whichever comes first.18

       The implied consent law provides certain procedural protections to drivers.

The Department must give the driver written notice that it intends to suspend or

revoke the driver's license.19 The Department must also notify the driver of the

right to a hearing and specify the steps to obtain one.20 Within 20 days of this

notice, the driver may request in writing a formal hearing before the

Department.21 As part of the request, the driver must pay a mandatory fee. The

Department may waive the fee, however, for drivers who are indigent.22

       At the hearing, the driver may have assistance of counsel, question

witnesses, present evidence, and testify.23 The hearing officer determines if the

officer had reasonable grounds to believe the driver was driving under the



       16   Former RCW46.20.308(6)(e)(i).
       17   Former RCW46.20.308(6)(e)(ii).
       18   Former RCW 46.20.308(7).
       19   Former RCW46.20.308(6)(a).
       20   Former RCW 46.20.308(6)(b).
       21   Former RCW 46.20.308(8).
       22    Former RCW 46.20.308(8); RCW            10.101.010(3)    (definition   of
"indigent"). As of October 1, 2012, the fee was $375. Laws of 2012, ch. 80, §
12.
       23 Former RCW 46.20.308(8).
                                        -6-
NO. 71633-6-1/7



influence and if the driver refused to take a test or took a test that revealed a


BAC of 0.08 or higher. After the hearing, the Department "shall order that the

suspension, revocation, or denial either be rescinded or sustained."24

Standing

         The parties each argue the issue of standing at some length. Most of the

discussion concerns Didlake's standing to bring claims related to a putative

class.    Because the trial court dismissed Didlake's own claims, which he had

standing to bring, without ruling on his motion for class certification, we do not

address this issue.


Procedural Due Process


         Didlake contends that the implied consent statute's required fee for

hearing violated his right to procedural due process. He appears to raise both

facial and as-applied challenges, arguing that due process requires an initial

hearing at no cost and that he and other members of the putative class should

receive refunds of the fees they paid to obtain hearings. Both the United States

and Washington State Constitutions declare that no person may be deprived of

life, liberty, or property without due process of law.25 Didlake has a protected

property interest in his driver's license that Washington courts have recognized




         24 Former RCW 46.20.308(8).
         25 U.S. Const, amend. V, XIV, § 1; Wash. Const, art. I, § 3.
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NO. 71633-6-1/8



as "'important'" and "'substantial.'"26 In any proceeding to deprive him of this

property interest, the State must afford him procedural due process.27

Procedural due process imposes limits on governmental decisions that deprive a

person of "liberty" or "property" interests within the meaning of a constitution's

due process clause.28

       Essential elements of procedural due process include notice and a

meaningful opportunity to be heard.29 "A meaningful opportunity to be heard

means 'at a meaningful time and in a meaningful manner.'"30 To determine what

procedural protections due process requires in a particular situation, a court must

consider three factors:   (1) the private interest affected, (2) the risk that the

relevant procedures will erroneously deprive a party of that interest, and (3) any

countervailing governmental interests involved.31




      26 Moore, 151 Wn.2d at 670-71 (quoting State v. Poison, 138 Wn.2d 773,
776-77, 982 P.2d 100 (1999); Mackev v. Montrvm. 443 U.S. 1, 11, 99 S. Ct.
2612,61 L. Ed. 2d 321 (1979)).
      27 Moore, 151 Wn.2d at 670; State v. Storhoff, 133 Wn.2d 523, 527, 946
P.2d 783 (1997) (citing Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L.
Ed. 2d 90 (1971)).
       28 Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).
       29 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985).
       30 Morrison, 168 Wn. App. at 273 (internal quotation marks omitted)
(quoting Downey v. Pierce County, 165 Wn. App. 152, 165, 267 P.3d 445
(2011)).
       31 Mathews, 424 U.S. at 334-35.
                                         -8-
NO. 71633-6-1/9



      The first factor requires a court to consider the nature of the private

interest affected. In cases involving due process challenges to filing fees, both

the United States and Washington Supreme Courts have held that if a

fundamental interest is not involved, requiring a fee for access to court or an

administrative hearing, even from indigent persons, does not violate due process.

      Boddie v. Connecticut32 involved a class action lawsuit brought by litigants

who could not pay the fees and costs required to obtain a divorce. There, the

United States Supreme Court noted the state's monopolization of divorce

proceedings and held that due process prohibits a state from denying indigent

persons access to courts for purposes of dissolving a marriage solely because of

their inability to pay fees.33 The Court emphasized that it did not decide "that

access for all individuals to the courts is a right that is, in all circumstances,

guaranteed by the Due Process Clause of the Fourteenth Amendment so that its

exercise may not be placed beyond the reach of any individual."34 Rather, the

Court limited its holding to such cases where access is "the exclusive

precondition to the adjustment of a fundamental human relationship."35

      Two years later, in United States v. Kras,36 the Court considered a

constitutional challenge to the filing fees required for a no-asset bankruptcy

      32 401 U.S. 371, 372-73, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971).
      33 Boddie, 401 U.S. at 374.
      34 Boddie, 401 U.S. at 382.
      35 Boddie, 401 U.S. at 383.
      36 409 U.S. 434, 435, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973).
                                       -9-
NO. 71633-6-1/10



proceeding.      The Court      noted   that bankruptcy discharge          involves   no

"fundamental interest" and "does not rise to the same constitutional level" as the


interest in establishing or dissolving a marriage.37 The Court recognized Boddie

"obviously stopped short of an unlimited rule that an indigent at all times and in

all cases has the right to relief without the payment of fees" and declined to

extend Boddie to proceedings not involving a fundamental interest.38

       The same year, in Ortwein v. Schwab,39 the Court rejected the argument

that because the State waived fees for certain types of proceedings, due process

required a fee waiver for all civil appeals. The Court concluded that as in Kras,

the Ortwein appellants' challenge to the reduction in their welfare benefits was in

the "'area of economics and social welfare'" and not a fundamental interest.40

The Court held that the government's interest in offsetting costs rationally

justified the filing fee and that the fee did not violate due process.41

       More than 20 years later, the Court reviewed the Boddie line of cases. In

M.L.B. v. S.L.J.,42 the Court held that requiring an indigent parent to pay a record

preparation fee to appeal the termination of her parental rights violated due

process. Discussing its holdings in Kras and Ortwein, the Court reiterated that "a



       37 Kras, 409 U.S. at 445.
       38 Kras, 409 U.S. at 450.
       39 410 U.S. 656, 661, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973).
       40 Ortwein, 410 U.S. at 660 (quoting Kras, 409 U.S. at 446).
       41 Ortwein, 410 U.S. at 660-61.
       42 519 U.S. 102, 106-07, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996).
                                          -10-
NO. 71633-6-1/11



constitutional requirement to waive court fees in civil cases is the exception, not

the general rule."43 But the Court noted, "Choices about marriage, family life, and

the upbringing of children are among associational rights this Court has ranked

as 'of basic importance in our society' that the Fourteenth Amendment

protects."44 As in Boddie, due process prohibited a financial barrier to court

access to protect a fundamental interest like parental rights.

       Washington courts have conducted a similar analysis and almost always

have   upheld     the constitutionality of filing   fees,   distinguishing   between

fundamental and other interests. In Bowman v. Waldt,45 this court held that due

process did not require King County to waive the fees necessary for an indigent

judgment creditor to secure the execution of a sheriff's levy.         Adopting the

rationale of Kras and Ortwein, this court refused to recognize "a constitutional

right of access to the courts if the case is one 'in the area of economics and

social welfare.'"46 Where the right involved is not fundamental, reasoned the

court, an indigent individual does not have a constitutional right to a fee waiver.47

       In Housing Authority v. Saviors,48 an indigent appellant challenged the

filing fee required to appeal her eviction from public housing. The Washington


       43M.LB.,519U.S.at114.
       44   M.L.B.. 519 U.S. at 116 (quoting Boddie, 401 U.S. at 376).
       45   9 Wn. App. 562, 570, 513 P.2d 559 (1973).
       46   Bowman, 9 Wn. App. at 570 (quoting Ortwein, 410 U.S. at 660).
       47   Bowman, 9 Wn. App. at 570.
       48   87 Wn.2d 732, 733, 557 P.2d 321 (1976).
                                        -11-
NO. 71633-6-1/12



Supreme Court held that because "the interest involved lies in the area of

economics and social welfare," the filing fee did not violate due process.49

       In Downey v. Pierce County,50 however, Division Two of this court struck

down a fee requirement in a county ordinance about dangerous animal

declarations (DADs). The ordinance required a cited dog owner to pay $250 to

obtain an informal, unrecorded auditor's review.51 If the auditor upheld the DAD,

a dog owner who wished to appeal had to pay an additional $500 to obtain a full

evidentiary review before a hearing officer.52 The court found that pet owners

have "arguably more than a mere economic interest because pets are not

fungible."53   The court also found that the county's procedures to issue and

review a DAD were insufficient under the Mathews factors, especially because

the initial fee did not cover a constitutionally adequate evidentiary review.54

Given this more substantial interest and the county's inadequate procedures, the

court held that "charging a fee to obtain an initial evidentiary review of a DAD

violates due process."55       However, the Downey opinion also expressly




       49 Saviors, 87 Wn.2d at 739, 744.
       50   165 Wn. App. 152, 156, 267 P.3d 445 (2011).
       51   Downey, 165 Wn. App. at 157.
       52   Downey, 165 Wn. App. at 158.
       53   Downey, 165 Wn. App. at 165.
       54   Downey, 165 Wn. App. at 167.
       55   Downey, 165 Wn. App. at 166.
                                        -12-
NO. 71633-6-1/13



acknowledged that "'there is no constitutional due process right to appeal civil

cases involving 'only property or financial interests.'"56

          In Morrison v. Department of Labor & Industries,57 Morrison challenged on

due process grounds the filing fees required to obtain administrative review of

eight electrical law citations.   Citing Boddie, Kras, Ortwein, and Bowman, this

court concluded that "where there is no fundamental right involved but only a

financial one, it is permissible to impose a monetary prerequisite to file an

appeal."58 The court distinguished the dog owner's private interests in Downey

as "much more expansive" than Morrison's, including the interest in keeping a

pet, economic interests in not having to pay additional inspection or insurance

fees, and the interest in not being subject to criminal liability for later violations.59

"Morrison's interest, by contrast, is solely monetary."60

          Didlake attempts to distinguish Ortwein and Saviors. He correctly notes

the appellants in those cases received initial hearings at no cost. He asserts that

Boddie and Kras do not control because they involved citizens seeking access to

courts.     By contrast, he argues, his case involves the government initiating

proceedings to take away a property interest.          But his arguments ignore the

          56 Downey, 165 Wn. App. at 167 (quoting In re Dependency of Grove, 127
Wn.2d 221, 240, 897 P.2d 1252 (1995)).
         57 168 Wn. App. 269, 271, 277 P.3d 675 (2012).
         58 Morrison, 168 Wn. App. at 273-74. By "appeal," the court refers to an
initial evidentiary review of the citations. Morrison, 168 Wn. App. at 271.
         59 Morrison, 168 Wn. App. at 275.
         60 Morrison, 168 Wn. App. at 275.
                                          -13-
NO. 71633-6-1 /14



distinction that the United States Supreme Court and Washington courts have

repeatedly found to be dispositive in filing fee challenges.         Courts have

consistently distinguished between fundamental interests and interests that are

"solely monetary," involving "economics and social welfare," or even "important"

or "substantial."   If the interest involved is fundamental, due process requires

access for all. A fee waiver for indigent litigants accomplishes this mandate. If

the interest is not fundamental, "a monetary prerequisite to an appeal is thus

permissible,"61 even for indigent appellants.

       Downey involved an interest that was "arguably more than a mere

economic interest" but still a property interest under the law.62 The Downey

court's unfortunate dicta that "due process requires access to an initial

evidentiary hearing without charge"63 diverges from this well settled rule. But the

DAD ordinance in Downey had no fee waiver provision, and the court did not

address whether such a waiver for indigent dog owners would cure any due

process violation. And as this court noted in Morrison, Downey acknowledged

the general rule that there is no constitutional right to appeal civil cases where

only financial or property rights are at stake.64 Even in the case of fundamental


       61 Morrison, 168 Wn. App. at 275.
       62 As Division Two observed in Downey, even the unique nonfungible
interest in a family pet is classified as a property interest under Washington law.
Downey, 165 Wn. App. at 165 n.13.
       63 Downey, 165 Wn. App. at 163.
       64 Morrison, 168 Wn. App. at 275 (quoting Downey, 165 Wn. App. at 167).
                                        -14-
NO. 71633-6-1/15



rights like marriage or parenting, the United States Supreme Court has not struck

down filing fees as unconstitutional per se.       Rather, the Court has mandated

access to all regardless of ability to pay, which the government may accomplish

via a fee waiver.65

        Courts have identified the driving privilege as an "important" and

"substantial" but not fundamental right.        Therefore, federal and state cases

decided after Boddie support the constitutionality of a filing fee for access to a

suspension or revocation hearing, even for indigent appellants. By providing a

fee waiver for indigent licensees, Washington's implied consent law does more

than the constitution requires, and between 2009 and 2011, the State waived the

fee for 36 percent of drivers who obtained a hearing.66 This contradicts Didlake's

assertion that the filing fee has a "chilling effect" on drivers' exercise of their due

process rights.   Thus, he fails to establish a facial challenge on due process

grounds. And because he paid the fee and received a hearing that complied with

due process, he does not show that the fee requirement is unconstitutional as

applied to him. Whether facial or as-applied, Didlake's due process challenges

fail.




        65 This is consistent with the holdings of numerous cases from other
jurisdictions that the Department cites in its brief.
        66 Of 28,405 DUI hearings conducted in the 2009-2011 biennium, the
Department waived fees for 10,260.
                                         -15-
NO. 71633-6-1 /16



      Because the interest involved here is not fundamental and therefore no

constitutional right of access to a hearing exists, we do not analyze the two

remaining Mathews factors.67

                                  CONCLUSION


      Because Didlake fails to establish that the implied consent statute's fee

requirement violates procedural due process, we affirm the trial court's order

dismissing Didlake's class action claim.




WE CONCUR:




        -££   tr^fr^. t , J




       67 See Morrison, 168 Wn. App. at 275.
                                       -16-
