                                                                     FILED
                                                                  AUGUST 15, 2019
                                                             In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

ROBERT E. LARSON; TYLER W.                   )
GASSMAN; and, PAUL E. STATLER,               )         No. 35649-3-III
                                             )
                    Appellants,              )
                                             )
      v.                                     )
                                             )         PUBLISHED OPINION
STATE OF WASHINGTON,                         )
                                             )
                    Respondent.              )

      SIDDOWAY, J. — Robert Larson, Tyler Gassman, and Paul Statler were wrongly

convicted of crimes and spent roughly four years in prison before their convictions were

vacated and the charges against them were dismissed. They later established their right

to assert a claim under Washington’s “Wrongfully Convicted Persons Act” (WCPA),

chapter 4.100 RCW, which provides damages to a wrongly convicted individual based on

years of incarceration, damage-based attorney fees, and certain costs. The three men also

filed a federal lawsuit against Spokane County and two of its law enforcement officers

under 42 U.S.C. § 1983 (the Section 1983 action). They reached a $2.25 million

settlement against the defendants in that lawsuit at around the same time they established

their rights under the WCPA.
No. 35649-3-III
Larson v. State


       At issue is whether their judgment for money damages under the WCPA remained

viable after the three men settled the Section 1983 action. Given the operative provisions

of the WCPA and the legislative intent that its remedies and compensation be exclusive,

we hold that their judgment for WCPA compensation no longer remained viable. The

superior court’s order vacating the judgment is affirmed.

                    FACTS AND PROCEDURAL BACKGROUND

       In 2008, Messrs. Larson, Gassman, and Statler (the plaintiffs) were arrested in

connection with a Spokane robbery. At their trial in February 2009, they presented alibi

evidence. A jury nonetheless found each guilty of first degree robbery, first degree

assault, and drive-by shooting. Each was sentenced to more than 20 years of

incarceration. They began serving their sentences in July 2009.

       In 2012, the superior court granted their CrR 7.8 motion for relief from judgment,

finding they had received ineffective assistance from trial counsel, who failed to

investigate potentially exculpatory evidence. Their convictions were vacated and they

were released from prison. Rather than retry them, the State dismissed the charges

against them in May and July 2013.

       In May 2013, the Washington Legislature enacted the WCPA. LAWS OF 2013, ch.

175. It became effective on July 28, 2013, and afforded individuals wrongly convicted

before that date a three year period within which to file suit. Id. at § 9 (codified at RCW

4.100.090). It expressly addresses its relationship to other civil remedies that a wrongly

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No. 35649-3-III
Larson v. State


convicted person might have. As more fully examined below, it states the intent of the

legislature that WCPA remedies and compensation “be exclusive to all other remedies at

law and in equity” against the state and its political subdivisions. Id. at § 8 (codified at

RCW 4.100.080). It effectuates that intent by requiring that a WCPA claimant (1) waive

other remedies against the state and certain state actors related to the claimant’s wrongful

conviction and imprisonment, including remedies under 42 U.S.C. § 1983, (2) execute a

legal release before receiving payment of any WCPA compensation, and (3) reimburse

the State in whole or in part if the claimant’s release is held invalid and the claimant later

recovers a tort award.

       In January 2014, the plaintiffs brought this action, asserting claims for

compensation under the WCPA. At the conclusion of a 2015 bench trial, the superior

court concluded they had not met their burden of proof and entered judgment in favor of

the State. The plaintiffs appealed. While the State appeal was pending, the plaintiffs

filed suit in federal court against Spokane County and two of its law enforcement officers

under 42 U.S.C. § 1983.

       In June 2016, this court held that the superior court had applied too high a burden

of proof on the plaintiffs in certain respects, and remanded for the court to reconsider the

required element of actual innocence. Larson v. State, 194 Wn. App. 722, 725, 375 P.3d

1096 (2016).



                                              3
No. 35649-3-III
Larson v. State


       Spokane County responded to this court’s revival of the plaintiffs’ WCPA claim

by moving the federal district court to dismiss the Section 1983 action, citing the

WCPA’s “exclusive remedy” and waiver language. Reading RCW 4.100.080(1) as a

whole, the federal district court construed it as allowing concurrent actions, even though

“‘[p]laintiffs must execute a legal release of all their other claims, including § 1983

claims, prior to the payment of compensation under the WCPA.’” Clerk’s Papers (CP)

at 59 (boldface and underscore omitted). Accordingly, the Section 1983 action

proceeded, as did the WCPA claim.

       In April 2017, after applying the law as clarified by this court, the superior court

concluded that the plaintiffs were entitled to recover under the WCPA. The WCPA

provides that a wrongfully convicted individual is entitled to $50,000.00 per year of

actual incarceration, attorney fees capped at the lesser of 10 percent of the claimant’s

damages or $75,000, costs, and any child support payments that went unpaid due to a

claimant’s incarceration. RCW 4.100.060(5)(a), (c), (e). The superior court determined

that the plaintiffs were entitled to $710,697.70 in WCPA damages, $78,380.06 in

attorney fees and costs, and that Mr. Larson was entitled to $1,299.97 in unpaid child

support payments.

       In mid-June 2017, the plaintiffs moved the court to enter judgment for their

WCPA remedies. The State opposed the motion, notifying the superior court that it had

learned on June 26 that the plaintiffs had settled their Section 1983 claims for a total of

                                              4
No. 35649-3-III
Larson v. State


$2.5 million. The State also represented that the settlement had been paid, but admitted

relying only on hearsay. It argued that having obtained a federal remedy against Spokane

County and its officers, the plaintiffs could not recover compensation under the WCPA.

       The superior court entered judgment in favor of the plaintiffs, as requested.

Although a transcript of the hearing has not been made a part of the record, the superior

court would later explain that in entering the judgment, it had

       attempted to emphasize the distinction between obtaining a judgment
       versus enforcing a judgment. [When the judgment was entered], the
       plaintiffs hadn’t been compensated on their [Section] 1983 claim or there
       was no evidence that they’d been compensated under their [Section] 1983
       claim. Rather, they had just settled the claim. The language consistently
       used in RCW 4.100 relates to being compensated rather than just making
       other claims.

Report of Proceedings (RP) at 31-32. The superior court later explained that at the

time it agreed to enter judgment,

       I found that the plaintiffs were entitled to a judgment because they had met
       all the requirements of the statute and there was no evidence that they’d
       been compensated on another claim. I then predicted everyone would be
       back when the plaintiffs try to enforce the judgment if they get
       compensated on their [Section] 1983 claims.

Id. at 32. To ensure the State’s ability to return to court if the plaintiffs received the

federal settlement and then took steps to collect the Washington judgment as well, the

judgment provided that “[p]laintiffs shall notify [the State’s attorneys] at least 14 days in

advance of seeking payment from the State.” CP at 105.




                                               5
No. 35649-3-III
Larson v. State


       In August 2017, the plaintiffs sought payment of the state court judgment, moving

the superior court to direct the clerk of court to furnish a certified copy of the judgment to

the Washington Office of Risk Management. The State opposed their motion and

obtained an order to show cause why the court should not vacate the judgment under CR

60(b). This time, the State provided a copy of the Washington Counties Risk Pool check

in payment of the settlement amount, which turned out to be $2.25 million.

       Following a hearing on the cross motions, the superior court denied the plaintiffs’

motion and granted the State’s, vacating the plaintiffs’ money judgment.1 The plaintiffs

appeal.

                                        ANALYSIS

I.     FAIRLY READ, THE WCPA CONDITIONS COMPENSATION ON A WRONGLY
       CONVICTED PERSON’S ABILITY TO PROVIDE AN EFFECTIVE WAIVER AND LEGAL
       RELEASE OF CLAIMS AGAINST THE STATE AND STATE ACTORS

       The appeal presents an issue of statutory construction, which we review de novo.

City of Spokane v. Spokane County, 158 Wn.2d 661, 672-73, 146 P.3d 893 (2006). “The


       1
         Although the superior court vacated the entire judgment, it recognized that the
plaintiffs might be entitled to their statutory attorney fees and costs and that Mr. Larson
might be entitled to his unpaid child support payments. This was based on RCW
4.100.080(1), under which the reimbursement amount to which the State is entitled from
an individual who is compensated under the WCPA and receives a tort award related to
his or her wrongful conviction excludes past child support awarded pursuant to RCW
4.100.060(5)(c) and attorney fees and costs awarded pursuant to RCW 4.100.060(5)(e).
The superior court offered to entertain further argument on that issue.
        Without conceding liability for those amounts, the State paid them, so the issue
was not decided by the superior court and is not presented for review.

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No. 35649-3-III
Larson v. State


court’s paramount duty in statutory interpretation is to give effect to the legislature’s

intent.” In re Pers. Restraint of Nichols, 120 Wn. App. 425, 431, 85 P.3d 955 (2003). If

a statute’s meaning is plain on its face, then the court will give effect to that plain

meaning as an expression of legislative intent. State ex rel. Citizens Against Tolls v.

Murphy, 151 Wn.2d 226, 242, 88 P.3d 375 (2004). Plain meaning is discerned not only

from the provision in question but also from closely related statutes and the underlying

legislative purposes. Id. Only if the language is ambiguous do we look to aids of

statutory construction, such as legislative history. State v. Armendariz, 160 Wn.2d 106,

110-11, 156 P.3d 201 (2007). A statute is ambiguous only if susceptible to two or more

reasonable interpretations; it is not ambiguous merely because different interpretations

are conceivable. Burton v. Lehman, 153 Wn.2d 416, 423, 103 P.3d 1230 (2005).

       The first section of the WCPA is entitled “Intent,” and states:

       The legislature recognizes that persons convicted and imprisoned for
       crimes they did not commit have been uniquely victimized. Having
       suffered tremendous injustice by being stripped of their lives and liberty,
       they are forced to endure imprisonment and are later stigmatized as felons.
       A majority of those wrongly convicted in Washington state have no remedy
       available under the law for the destruction of their personal lives resulting
       from errors in our criminal justice system. The legislature intends to
       provide an avenue for those who have been wrongly convicted in
       Washington state to redress the lost years of their lives, and help to address
       the unique challenges faced by the wrongly convicted after exoneration.

RCW 4.100.010.




                                               7
No. 35649-3-III
Larson v. State


       The critical subsection of the WCPA for present purposes is RCW 4.100.080(1),

which appears in the section entitled “Remedies and compensation exclusive—

Admissibility of agreements.” Reformatted for ease of reading and analysis, it provides:

       (1) It is the intent of the legislature that the remedies and compensation
       provided under this chapter shall be exclusive to all other remedies at law
       and in equity against the state or any political subdivision of the state.
       As a requirement to making a request for relief under this chapter, the
       claimant waives any and all other remedies, causes of action, and other
       forms of relief or compensation against the state, any political subdivision
       of the state, and their officers, employees, agents, and volunteers related to
       the claimant’s wrongful conviction and imprisonment. This waiver shall
       also include all state, common law, and federal claims for relief, including
       claims pursuant to 42 U.S.C. Sec. 1983.
       A wrongfully convicted person who elects not to pursue a claim for
       compensation pursuant to this chapter shall not be precluded from seeking
       relief through any other existing remedy.
       The claimant must execute a legal release prior to the payment of any
       compensation under this chapter. If the release is held invalid for any
       reason and the claimant is awarded compensation under this chapter and
       receives a tort award related to his or her wrongful conviction and
       incarceration, the claimant must reimburse the state for the lesser of:
             (a) The amount of the compensation award, excluding the portion
       awarded pursuant to RCW 4.100.060(5) (c) through (e); or
              (b) The amount received by the claimant under the tort award.

RCW 4.100.080(1).

       We agree with the plaintiffs and the federal court that notwithstanding the

requirement that a WCPA claimant “waives any and all other remedies, causes of action,

and other forms of relief or compensation” against the state and state actors, see id., the

WCPA allows for concurrent actions as long as the claimant does not both recover relief

                                              8
No. 35649-3-III
Larson v. State


from the State or state actors and receive and retain compensation under the WCPA.

This is implied by the fact that before WCPA compensation is paid, the claimant must

execute a legal release. Id. Execution of a release would be unnecessary if the waiver

was binding at the inception of a request for relief under the WCPA. It is also implied by

the subsection’s recognition that even a claimant who has requested relief and signed a

legal release might recover a tort award if the release were held invalid. See id.

       We reject the plaintiffs’ contention that the requirement that a WCPA claimant

release claims operates only prospectively, and has no application if a claimant’s first

recovery is for non-WCPA claims, followed by the payment of compensation under the

WCPA. The plaintiffs argue that the trial court erred by allowing the legislature’s stated

intent to create an “exclusive remedy” to trump plain language of the WCPA’s operative

provisions.2 We begin our analysis with the operative provisions.

       The gloss that the plaintiffs wish to put on the WCPA conflicts with its plain

language. They argue that “[t]he WCPA creates a narrow, prospective waiver of

remedies by conditioning the payment of compensation on a release of future claims,

actions, or proceedings.” Appellants’ Opening Br. at 18 (emphasis added). But the

relevant language in RCW 4.100.080 does not say, “As a requirement to making a


       2
         The plaintiffs cite State v. Granath for the rule that “[t]he legislature’s codified
declaration of intent cannot ‘trump the plain language of the statute.’” 190 Wn.2d 548,
556, 415 P.3d 1179 (2018) (quoting State v. Reis, 183 Wn.2d 197, 212, 351 P.3d 127
(2015)).

                                               9
No. 35649-3-III
Larson v. State


request for relief under this chapter, the claimant prospectively waives any and all other

remedies, causes of action, and other forms of relief or compensation . . . related to the

claimant’s wrongful imprisonment . . . [and] must execute a legal release of future claims

prior to the payment of any compensation under this chapter.” It says, instead:

       As a requirement to making a request for relief under this chapter, the
       claimant waives any and all other remedies, causes of action, and other
       forms of relief or compensation . . . related to the claimant’s wrongful . . .
       imprisonment . . . [and] must execute a legal release prior to the payment of
       any compensation under this chapter.

       Elsewhere, the plaintiffs contend that there is a “particular way in which the

legislature codified a waiver and any idea of ‘exclusive remedies’ within the Act: there

must be a legal release; it must then be held invalid; and there must be a subsequent tort

payment ‘related to his or her wrongful conviction and incarceration.’” Appellants’

Opening Br. at 25 (emphasis added). That is the manner in which reimbursement

language of RCW 4.100.080(1) operates, because one can only reimburse something that

was previously disbursed. When the tort award or settlement is received first, the way in

which the legislature effectuated the requirement that WCPA compensation be an

exclusive remedy was with the requirement that “[t]he claimant must execute a legal

release prior to the payment of any compensation under this chapter.” RCW

4.100.080(1). A claimant who has received a tort award or settlement will not be able to

waive claims and execute a legal release.

       “Waiver” and “release” have well-settled legal meanings. “Waive” means:

                                             10
No. 35649-3-III
Larson v. State


       1. To abandon, renounce, or surrender (a claim, privilege, right, etc.); to
       give up (a right or claim) voluntarily. • Ordinarily, to waive a right one
       must do it knowingly — with knowledge of the relevant facts.

BLACK’S LAW DICTIONARY at 1894 (11th ed. 2019). Relevant meanings of “release” are:

       1. Liberation from an obligation, duty, or demand; the act of giving up a
       right or claim to the person against whom it could have been enforced <the
       employee asked for a release from the noncompete agreement>. — Also
       termed discharge; surrender. 2. The relinquishment or concession of a
       right, title, or claim <Benson’s effective release of the claim against
       Thompson’s estate precluded his filing a lawsuit>.

Id. at 1530 (some emphasis omitted). To “give up a right or claim” is a meaning

common to both terms.

       Whether an individual is waiving or releasing a past or future claim will generally

be determined from the description of the claim being waived or released, not from the

use of the words “past” or “future.” Thus, upon buying a ticket for a baseball game, one

might give up a claim for any injury arising from the playing of that game, a claim that

would inherently arise in the future. Conversely, an agreement to waive or release a

claim for injury of a baseball game that occurred last year gives up a claim that inherently

arose in the past.

       The claims that the WCPA requires be waived are “remedies, causes of action, and

other forms of relief or compensation against the state, any political subdivision of the

state, and their officers, employees, agents, and volunteers related to the claimant’s

wrongful conviction and imprisonment.” RCW 4.100.080(1) (emphasis added). “[T]he



                                             11
No. 35649-3-III
Larson v. State


claimant’s wrongful conviction and imprisonment” necessarily refers to the conviction

and imprisonment that occurred in the past and gives rise to the claimant’s rights under

the WCPA.

       Having settled their federal claims, the plaintiffs no longer had the ability to give

up the relevant claims: they had already given them up. The “Settlement Agreement and

Release of All Claims” signed with the federal defendants “release[d] and fully

discharge[d]” the State, the officers, and various agents, from

       any and all manner of claims, demands, liabilities, obligations, damages,
       causes of action or suits . . . which Plaintiffs . . . may have against the
       released parties herein, arising from or in any way connected with [the
       Section 1983 action] . . . includ[ing] . . . all claims, demands, liabilities,
       obligations, damages, causes of action or suits . . . which have been . . .
       alleged in [the Section 1983 action] or otherwise arise from the events
       described in the [Section 1983 action].

CP at 147 (some capitalization omitted). The only claims carved out from the broad

scope of the settlement agreement and release were the plaintiffs’ pending WCPA claims.

       Following settlement and execution of the settlement agreement and release of all

claims, the plaintiffs were no longer capable of satisfying the conditions to compensation

required by the WCPA: the condition that they waive all remedies, causes of action, and

other forms of relief or compensation against the State and state actors related to their




                                              12
No. 35649-3-III
Larson v. State


wrongful conviction and imprisonment, and the condition that they execute a legal

release.3

       This plain reading of the operative provisions of the WCPA is, of course, strongly

supported by the introductory language of RCW 4.100.080(1) that “the remedies and

compensation provided under this chapter shall be exclusive to all other remedies at law

and in equity against the state or any political subdivision of the state.”

       The plaintiffs direct our attention to State v. Oakley, a Texas Supreme Court

decision that construed Texas statutes as permitting a wrongfully convicted individual to

sue for and recover a federal remedy before, but not after, obtaining wrongful

imprisonment compensation from the State. 227 S.W.3d 58, 63 (Tex. 2007). The Texas

statute was forward-looking, stating that a person compensated under the state statute

“may not bring” another action involving the same subject matter against any

governmental unit or an employee of any governmental unit. Id. (quoting TEX. CIV.

PRAC. & REM. CODE § 103.153(b), a statute entitled “Employees Not Liable After

Payment of Compensation” (emphasis added)).




       3
         The plaintiffs do not make the specious argument that “execute a legal release”
means nothing more than to sign a document entitled “Release,” which can be done as
easily after receiving a tort award or settlement payment as before receiving such an
award or settlement. Fairly read, “execute a legal release” is an act having legal
substance that cannot be done by a claimant who has already obtained a tort award or
settlement from state actors.

                                              13
No. 35649-3-III
Larson v. State


       In holding that a wrongly convicted person could be compensated in two forums

under the Texas statute, the Texas Supreme Court observed that if “bar[ring] duplicative

recoveries . . . had . . . been the [legislative] aim, legislators could have said simply that

no one can recover both.” Id. It was the Washington Legislature’s aim that WCPA

compensation, if obtained, be an exclusive remedy, and that is what its provisions ensure.

       Finally, the plaintiffs emphasize that in the prior appeal, this court recognized that

the WCPA, being a remedial statute, must be “‘liberally construed to suppress the evil

and advance the remedy.’” Appellants’ Opening Br. at 18 (quoting Larson, 194 Wn.

App. at 735). They argue that this requires us to narrowly construe what they

characterize as the “exemption” created by RCW 4.100.080(1). Id. RCW 4.100.080(1)

is not fairly characterized as an exemption, however. It creates conditions that apply to

every individual requesting relief under the act. Moreover, the stated intent of the WCPA

is not to add one more remedy to others that might be available. It is addressed to the

“majority of those wrongly convicted in Washington state [who] have no remedy

available under the law for the destruction of their personal lives resulting from errors in

our criminal justice system,” to “provide an avenue for those who have been wrongly

convicted in Washington state.” RCW 4.100.010 (emphasis added).

       Fairly read, the WCPA conditions compensation on a wrongly convicted person’s

ability to provide an effective waiver and legal release of claims. The plaintiffs were

unable to satisfy the statutory conditions.

                                               14
No. 35649-3-III
Larson v. State


II.    THE TRIAL COURT DID NOT ERR IN VACATING THE PLAINTIFFS’ JUDGMENT UNDER
       CR 60

       The plaintiffs also briefly argue that the trial court improperly relied on CR

60(b)(11) to vacate their judgment. They infer that the court relied on that subsection.

Citing case law that characterizes subsection (11) as “‘a catch-all provision, intended to

serve the ends of justice in extreme, unexpected situations,’” the plaintiffs argue their

settlement with the federal defendants was expected at the time their judgment was

entered, and the judgment was not appealed. Appellants’ Opening Br. at 46-47 (quoting

In re Det. of Ward, 125 Wn. App. 374, 379, 104 P.3d 751 (2005)).

       We review a trial court’s decision on a motion to vacate for an abuse of discretion.

DeYoung v. Cenex, 100 Wn. App. 885, 894, 1 P.3d 587 (2000). A trial court abuses its

discretion when it exercises it on untenable grounds or for manifestly unreasonable

reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       The State moved for the judgment to be vacated under CR 60(b)(6), not CR

60(b)(11). The former subsection authorizes a trial court to relieve a party from a final

judgment when “[t]he judgment has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application.” The plaintiffs argue

that it would be untenable to find inequity, because even the trial court recognized that




                                             15
No. 35649-3-III
Larson v. State


$2.25 million was not sufficient compensation for three individuals’ wrongful

incarceration for four years.

       In orally granting the motion, the trial court used language suggesting it might be

relying on CR 60(b)(1), stating that it would vacate the judgment

       under CR 60(b) due to irregularities that have occurred here with two
       different actions proceeding at the same time, one of those occurring after
       this case had been finalized and on appeal. The Court possesses the
       authority under CR 60(c) and (b) to make that finding.

RP at 35 (emphasis added). CR 60(b)(1) identifies, as a reason authorizing a trial court to

relieve a party from a final judgment, “[m]istakes, inadvertence, surprise, excusable

neglect or irregularity in obtaining a judgment or order.” (Emphasis added.)

       We can affirm a trial court on any basis supported by the record. Nast v. Michels,

107 Wn.2d 300, 308, 730 P.2d 54 (1986). The State reasonably identified CR 60(b)(6) as

providing authority to vacate. CR 60(b)(6) does not turn on whether the judgment

provides a remedy that is inequitable; it turns on whether “it is no longer equitable that

the judgment should have prospective application.” Applying the rule of ejusdem

generis, inequity in a “judgment . . . hav[ing] prospective operation” should be construed

to embrace reasons similar to the reasons for vacating judgments that have been satisfied,

released, discharged, or that were based on a judgment that has been reversed or

otherwise vacated. In this case, the similar inequity is that the judgment was predicated




                                             16
No. 35649-3-III
Larson v. State


on the plaintiffs' waiver and release of other claims-claims that, as it turns out, were not

waived and could not be released.

      The plaintiffs also make a passing challenge to the fact that the statutory procedure

of presenting the plaintiffs with a legal release to execute was not followed. As the State

argues, however, the law does not require futile acts. E.g., Ancheta v. Daly, 77 Wn.2d

255, 263, 461 P.2d 531 (1969).

      Affirmed.


                                                     ?Ju,wtVJ-,0 {;r
                                                 Siddoway, J.

WE CONCUR:




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Fearin~


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Pennell, A.CJ.




                                            17
