                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          May 10, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                            No. 47523-5-II

                                 Respondent,

            v.

    ANDREW PATRICK MATHERS,                                     PUBLISHED OPINION

                                 Appellant.

           MELNICK, J. — To an indigent defendant saddled with legal financial obligations (LFOs),

it does not matter if the LFOs are labeled mandatory or discretionary. The effects on the indigent

defendant remain the same. However, until there are legislative amendments or Supreme Court

changes in precedent, we must recognize these distinctions and adhere to the principles of stare

decisis.

           Andrew Mathers appeals from the trial court’s imposition of mandatory LFOs. He argues

that the trial court’s failure to inquire into his particular ability to pay a $100 deoxyribonucleic

acid (DNA) fee and a $500 Victim Penalty Assessment (VPA) fee constituted error, violated equal

protection, and violated due process. We affirm the trial court.1




1
 Because of our resolution above, we also conclude the trial court did not err by failing to conduct
an individualized inquiry into Mathers’s ability to pay DNA and VPA fees.
47523-5-II


                                               FACTS

          After the State amended Mathers’s original charge to theft in the second degree, Mathers

entered a plea of guilty. At sentencing Mathers cited to Blazina2 and objected to the imposition of

LFOs. The trial court imposed $64.99 in restitution. The court also imposed a $100 DNA fee and

a $500 VPA fee. The court waived all other LFOs. Mathers appeals.

                                             ANALYSIS

I.        APPLICABLE LAW

          “The sentencing court’s authority to impose court costs and fees is statutory.” State v.

Cawyer, 182 Wn. App. 610, 619, 330 P.3d 219 (2014); RCW 10.01.160(3). DNA3 and VPA4 fees

are authorized by the legislature. A trial court may impose attorney fees and other costs on a

convicted defendant if he or she is able to pay, or will be able to pay. RCW 10.01.160(3); State v.

Eisenman, 62 Wn. App. 640, 644, 810 P.2d 55, 817 P.2d 867 (1991).

          The DNA collection fee statute states,

          Every sentence imposed for a crime specified in RCW 43.43.754 must include a
          fee of one hundred dollars. The fee is a court-ordered [LFO] as defined in RCW
          9.94A.030 and other applicable law. For a sentence imposed under chapter 9.94A
          RCW, the fee is payable by the offender after payment of all other [LFOs] included
          in the sentence has been completed.

RCW 43.43.7541 (emphasis added).

          The VPA statute states,

          When any person is found guilty in any superior court of having committed a crime
          . . . there shall be imposed by the court upon such convicted person a penalty
          assessment. The assessment shall be in addition to any other penalty or fine

2
     State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
3
     RCW 43.43.7541
4
     RCW 7.68.035.


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47523-5-II


        imposed by law and shall be five hundred dollars for each case or cause of action
        that includes one or more convictions of a felony or gross misdemeanor and two
        hundred fifty dollars for any case or cause of action that includes convictions of
        only one or more misdemeanors.

RCW 7.68.035(1)(a) (emphasis added).

II.     THE MANDATORY NATURE OF DNA AND VPA FEES

        Mathers argues the trial court mistakenly believed it was required to impose DNA and VPA

fees without regard to Mathers’s indigence. Mathers contends the DNA and the VPA statutes

should be read together with RCW 10.01.160. He also argues that failure to consider his ability to

pay violates the plain language of RCW 10.01.160(3) and the purpose of the Sentencing Reform

Act of 1981.5 We disagree.

        A.      Legislative Intent

        Where the legislature has had time to correct a court’s interpretation of a statute and has

not done so, we presume the legislature approves of our interpretation. See In re Postsentence

Review of Smith, 139 Wn. App. 600, 605, 161 P.3d 483 (2007). Washington courts have

consistently held that a trial court need not consider a defendant’s past, present, or future ability to

pay when it imposes either DNA or VPA fees. See State v. Curry, 118 Wn.2d 911, 917-18, 829

P.2d 166 (1992) (VPA fees are mandatory notwithstanding defendant’s ability to pay); State v.

Clark, 191 Wn. App. 369, 374, 362 P.3d 309 (2015) (victim assessment, filing fee, and DNA

collection fee are mandatory obligations not subject to defendant’s ability to pay); see also State

v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013); State v. Kuster, 175 Wn. App. 420, 424,

306 P.3d 1022 (2013); State v. Thompson, 153 Wn. App. 325, 336, 223 P.3d 1165 (2009); State

v. Williams, 65 Wn. App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).



5
    Ch. 9.94A RCW.


                                                   3
47523-5-II


       Washington courts consistently treat the DNA and the VPA statutes as separate and distinct

from the discretionary LFO statute and the restitution statute. However, Mathers argues that when

the legislature intends to revoke the court’s discretion, it explicitly evinces its intent. For support,

he cites the restitution statute which says, “The court may not reduce the total amount of restitution

ordered because the offender may lack the ability to pay the total amount.” RCW 9.94A.753(4).

Mathers contends that the absence of such obligatory language in the DNA and the VPA statutes

shows the legislature’s intent to grant courts discretion.

       While it is true that cannons of statutory interpretation direct that where the legislature uses

different language within a provision, a different intent is indicated, see State v. Conover, 183

Wn.2d 706, 712-13, 355 P.3d 1093 (2015), Mathers’s application of this principle to the present

case is flawed. First, Mathers cites Conover, 183 Wn.2d at 712-13, for the principle that “the

legislature’s choice of different language in different provisions indicates different legislative

intent.” Br. of Appellant at 7-8 (emphasis added). However, in Conover, the court interpreted one

statute by comparing differing language in sections of that same statute. 183 Wn.2d at 712-13.

The appropriate use of this interpretive tool is to compare the language within the same provision,

or between amended versions of the same statute, but not between entirely different statutes. See

In re Parentage of K.R.P., 160 Wn. App. 215, 223, 247 P.3d 491 (2011) (“‘Where a provision

contains both the words “shall” and “may,” it is presumed that the lawmaker intended to

distinguish between them.’” (Quoting Scannell v. City of Seattle, 97 Wn.2d 701, 704, 648 P.2d

435 (1982)); see also State v. Roberts, 117 Wn.2d 576, 585-86, 817 P.2d 855 (1991) (comparing

the current and prior version of the same statute to define an ambiguous term).




                                                   4
47523-5-II


       Additionally, the legislature has given Washington courts no reasons to presume the

restitution statute should be directly compared to discretionary court fees and costs statutes. In

fact, “[t]he legislature’s amendments to the restitution statute demonstrate that the legislature has

consistently sought to ensure that victims of crimes are made whole after suffering losses caused

by offenders and to increase offender accountability.” State v. Gonzalez, 168 Wn.2d 256, 265,

226 P.3d 131 (2010). The restitution statute is intended to be both punitive and compensatory.

State v. Kinneman, 155 Wn.2d 272, 279-80, 119 P.3d 350 (2005).

       The legislative intent behind the restitution statute is separate and distinct from its intent

regarding the DNA and the VPA statutes. The DNA fee “serves to fund the collection of samples

and the maintenance and operation of DNA databases” and does not have a punitive purpose. State

v. Brewster, 152 Wn. App. 856, 860, 218 P.3d 249 (2009). The VPA fee is also not punitive in

nature. See State v. Humphrey, 139 Wn.2d 53, 62, 983 P.2d 1118 (1999) (an amendment to the

VPA statute did not apply retroactively because it created a new liability, not a new penalty).

       Mathers also acknowledges that the legislature did amend the DNA fee statute to remove

consideration of “hardship.” Br. of Appellant at 8 n.7. He argues, however, that the legislature

did not include language explicitly removing discretion. “In 2002 the legislature enacted a statute

requiring courts to impose a $100 DNA collection fee with every sentence imposed under chapter

9.94A RCW for certain specified crimes, ‘unless the court finds that imposing the fee would result

in undue hardship on the offender.’” Thompson, 153 Wn. App. at 336 (quoting former RCW

43.43.7541 (2002)). The legislature amended the language in 2008 to state only, “Every sentence

. . . must include a fee of [$100].” Thompson, 153 Wn. App. at 336 (quoting former RCW




                                                 5
47523-5-II


43.43.7541 (2008)6). Given the legislative history, there does not appear to be support for the

importance Mathers places on the lack of express language removing discretion.

         We disagree with Mathers’s argument that the legislature clearly intended trial courts to

have discretion when imposing DNA and VPA fees.

         B.     Case Law Precedent

         Next, Mathers argues the Washington Supreme Court in State v. Blazina, 182 Wn.2d 827,

344 P.3d 680 (2015), “repeatedly described its holding as applying to ‘LFOs,’ not just to a

particular cost.” Br. of Appellant at 8. Mathers asserts Blazina clearly implicates that the DNA

and the VPA statutes should be read in conjunction with RCW 10.01.160. However, this

interpretation is overbroad. Although Blazina involved the appeal of LFOs including DNA and

VPA fees, the court only reviewed discretionary LFOs. 182 Wn.2d at 831. The court listed all the

LFOs imposed in Blazina’s case but then stated, “The trial court, however, did not examine

Blazina’s ability to pay the discretionary fees on the record.” Blazina, 182 Wn.2d at 831 (emphasis

added). It also stated, “A defendant who makes no objection to the imposition of discretionary

LFOs at sentencing is not automatically entitled to review.” Blazina, 182 Wn.2d at 832 (emphasis

added). Throughout the opinion, the court made clear that it was reviewing only discretionary

LFOs. Blazina, 182 Wn.2d at 834-35, 837-38.

         Mathers also argues that the Washington Supreme Court has never held that DNA fees are

exempt from an ability to pay inquiry. He acknowledges that we made that holding in Lundy, 176

Wn. App. at 102-03, but contends we lacked the benefit of Blazina and should not now follow our

own precedent. Although our Supreme Court has not explicitly held that DNA fees are exempt

from the ability to pay inquiry, it has implicitly made such a holding. Blazina recognized the


6
    Later amendments in 2011 and 2015 do not impact our analysis.


                                                 6
47523-5-II


distinction between mandatory and discretionary fees. Accord State v. Stoddard, 192 Wn. App.

222, 225, 336 P.3d 474 (2016) (“Blazina addressed only discretionary [LFOs].”). The Washington

Supreme Court could have interpreted the statute to require trial judges to conduct an ability to

pay inquiry before imposing the DNA fee; however, it did not.

       Mathers also acknowledges that the Washington Supreme Court stated in Curry, 118

Wn.2d at 917-18, that VPA fees are mandatory notwithstanding a defendant’s ability to pay. But

he contends the opinion was issued 20 years ago and solely addressed the argument that the VPA

statute was unconstitutional. Specifically, Mathers contends that the portion of the opinion that

addressed whether an inquiry was necessary for the VPA fee is “arguable dictum” and superseded

by Blazina. Br. of Appellant at 12.

       In Curry, our Supreme Court considered appellants’ appeals of VPA fees. 118 Wn.2d at

917. In doing so, the court distinguished the VPA fee from costs imposed under RCW 10.01.160

stating, “The penalty is mandatory. . . . In contrast to RCW 10.01.160, no provision is made in the

statute to waive the penalty for indigent defendants.” Curry, 118 Wn.2d at 917 (citation omitted).

The court reasoned that the time for a defendant to contest a VPA fee on the basis of ability to pay

was when the State sought payment. Curry, 118 Wn.2d at 917-18. The court analyzed the statute’s

constitutionality and determined that the statute had sufficient safeguards to prevent an indigent

defendant from being imprisoned purely because of indigency. Curry, 118 Wn.2d at 918. The

court stated, “[N]o defendant will be incarcerated for his or her inability to pay the penalty

assessment unless the violation is willful.” Curry, 118 Wn.2d at 918. The court’s remarks that

the VPA fee was mandatory and did not contain a provision on ability to pay like in RCW

10.01.160 were a part of the court’s analysis. Curry, 118 Wn.2d at 917. Curry has not been

superseded by Blazina, and it is applicable to the situation currently before us.



                                                 7
47523-5-II


       Mathers also argues State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997) (appellate costs

statute addressed), should be abandoned because more recent studies disprove its logic. In Blank,

the court, relying on Curry, again considered “whether, prior to including a repayment obligation

in defendant’s judgment and sentence, it is constitutionally necessary that there be an inquiry into

the defendant’s ability to pay, his or her financial resources, and whether there is no likelihood that

defendant’s indigency will end.” Blank, 131 Wn.2d at 239. The court held, “[T]he Constitution

does not require an inquiry into ability to pay at the time of sentencing. Instead, the relevant time

is the point of collection and when sanctions are sought for nonpayment.” Blank, 131 Wn.2d at

242.

       Mathers’s argument that we should not follow Blank, however, is beyond the purview of

Washington’s Court of Appeals. While it is clear that both our Supreme Court and this court are

aware of a need to reform the LFO system, see Blazina, 182 Wn.2d at 835 (stating, “National and

local cries for reform of broken LFO systems demand that this court exercise its RAP 2.5(a)

discretion and reach the merits of this case”), the Supreme Court has not yet overruled its opinions

in Curry or Blank. A Washington Supreme Court decision is binding on all lower courts in the

state. 1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006).

Therefore, because neither Curry nor Blank have been overruled, we must follow the Supreme

Court’s directly controlling precedent.

       Lastly, Mathers cites General Rule (GR) 34 as further support that a broader application of

RCW 10.01.160 is required. The court rule, adopted in 2010, states,




                                                  8
47523-5-II


       Any individual, on the basis of indigent status as defined herein, may seek a waiver
       of filing fees or surcharges the payment of which is a condition precedent to a
       litigant’s ability to secure access to judicial relief from a judicial officer in the
       applicable trial court.

GR 34(a). The Supreme Court possesses rule-making authority. State v. Templeton, 148 Wn.2d

193, 212, 59 P.3d 632 (2002). The “[p]romulgation of state court rules creates procedural rights.”

Templeton, 148 Wn.2d at 212. Courts apply cannons of statutory interpretation when construing

court rules. State v. Robinson, 153 Wn.2d 689, 692, 107 P.3d 90 (2005).

       The court’s intent in GR 34 is clear if not from the language of the rule then by the comment

to the rule, in which the court wrote,

       The adoption of this rule is rooted in the constitutional premise that every level of
       court has the inherent authority to waive payment of filing fees and surcharges on
       a case by case basis. Each court is responsible for the proper and impartial
       administration of justice which includes ensuring that meaningful access to judicial
       review is available to the poor as well as to those who can afford to pay.

GR 34 cmt. The rule has a focused goal. It allows filing fees to be waived to provide indigent

people with access to the courts. GR 34(a). It does not say that civil judgments against those who

had fees waived cannot be enforced. See GR 34. So Mathers’s comparison is misplaced. He

attempts to equate the waiving of filing fees with the imposition of criminal costs. GR 34 does not

illuminate our Supreme Court’s intent to more broadly apply RCW 10.01.160. We decline to rely

on GR 34 to deduce the Washington Supreme Court’s or the legislature’s intent behind the DNA

and the VPA statutes, or RCW 10.01.160.




                                                 9
47523-5-II


       C.      Constitutional Challenges

               1.       Equal Protection

       Mathers further argues that GR 34 supports his position that to allow mandatory costs and

fees to be waived for indigent civil litigants but not for criminal defendants violates equal

protection.7 We disagree.

       The Fourteenth Amendment of the United States Constitution and article I, section 12 of

the Washington State Constitution require that similarly situated persons receive similar treatment

under the law. Harmon v. McNutt, 91 Wn.2d 126, 130, 587 P.2d 537 (1978). ‘“Equal protection

does not require that all persons be dealt with identically, but it does require that a distinction made

have some relevance to the purpose for which the classification is made.”’ In re Det. of Thorell,

149 Wn.2d 724, 745, 72 P.3d 708 (2003) (quoting Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.

Ct. 760, 15 L. Ed. 2d 620 (1966)). Where the challenge does not involve a suspect class and the

right at issue is not a fundamental right, we utilize the rational basis test. State v. Scherner, 153

Wn. App. 621, 648, 225 P.3d 248 (2009).




7
  Mathers also asserts that the court in Blazina “urged trial courts in criminal cases to reference
[GR34] when determining ability to pay.” Br. of Appellant at 10. In Blazina, the court advised
trial courts to look to GR 34 for guidance when determining indigency for discretionary LFOs.
182 Wn.2d at 838-39. While what Mathers says is not incorrect, his attempt to use the information
to support his argument is not supported. He appears to suggest that the inference from the
language of Blazina, evinces the Supreme Court’s intent that civil litigants and criminal defendants
be compared and that GR 34 and RCW 10.01.160 be applied equivalently. There is no support for
this contention in the opinion. Blazina, 182 Wn.2d at 838-39.


                                                  10
47523-5-II


        Rational basis review requires the existence of a legitimate governmental objective and a

rational means of achieving it. In re Det. of Turay, 139 Wn.2d 379, 410, 986 P.2d 790 (1999).

“To overcome the strong presumption of constitutionality, the classification must be purely

arbitrary.” In re Det. of Ross, 114 Wn. App. 113, 118, 56 P.3d 602 (2002). The burden falls on

the party challenging the classification to show that the classification is arbitrary. Ross, 114 Wn.

App. at 118.

        Here, Mathers appears to be premising his argument on GR 34 being to civil litigants what

RCW 10.01.160 is to criminal defendants. As a basic premise, this assertion is incorrect. Mathers

cites to Jafar v. Webb, in which the Washington Supreme Court held, “GR 34 provides a uniform

standard for determining whether an individual is indigent and further requires the court to waive

all fees and costs for individuals who meet this standard.” 177 Wn.2d 520, 523, 303 P.3d 1042

(2013). In Jafar, the court held the intent of GR 34 is to insure access to the courts for civil litigants

through fee waivers. 177 Wn.2d at 527-29.

        On the other hand, RCW 10.01.160 allows courts to recoup some of the expenses associated

with the criminal prosecution of a criminal defendant. See also Eisenman, 62 Wn. App. at 644.

GR 34 serves a different purpose still from DNA and VPA fees, which are imposed only after a

conviction. The fees are meant to respectively fund the collection of biological samples and the

maintenance and operation of DNA databases, and to increase funding for victim programs.

Brewster, 152 Wn. App. at 860; RCW 7.68.035. Mathers fails to establish that civil litigants and

criminal defendants are similarly situated individuals receiving disparate treatment.

        Mathers also argues that treating DNA and VPA fees as mandatory violates equal

protection under Fuller v. Oregon, 417 U.S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974). There

the United States Supreme Court upheld the Oregon statute on which RCW 10.01.160 was based.



                                                   11
47523-5-II


Curry, 118 Wn.2d at 915; Fuller, 417 U.S. 40. In that case, the Court reviewed non-mandatory

costs accumulated from prosecuting a specific defendant. Fuller, 417 U.S. at 45. Mathers

improperly relies on this case to demonstrate that the Fourteenth Amendment is only satisfied if

RCW 10.01.160(3) is read in tandem with specific cost and fee statutes. Fuller asserts no such

precedent. The case does not address mandatory cost and fee statutes. Following our Supreme

Court precedent, we conclude the imposition of DNA and VPA fees on Mathers did not violate

equal protection.

               2.      Substantive Due Process

       Both the state and federal constitutions mandate that no person may be deprived of life,

liberty, or property without due process of law. U.S. CONST. amends. V, XIV, § 1; WASH. CONST.

art. I, § 3. “‘The due process clause of the Fourteenth Amendment confers both procedural and

substantive protections.’” Nielsen v. Dep’t of Licensing, 177 Wn. App. 45, 52, 309 P.3d 1221

(2013) (quoting Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)).

“Substantive due process seems to have been gradually adopted as the shorthand for individual

rights which are not clearly textual.” Stephen Kanter, The Griswold Diagrams: Toward A Unified

Theory of Constitutional Rights, 28 CARDOZO L. REV. 623, 669 n.170 (2006). “Substantive due

process protects against arbitrary and capricious government action even when the decision to take

action is pursuant to constitutionally adequate procedures.” Amunrud, 158 Wn.2d at 218-19. “It

requires that ‘deprivations of life, liberty, or property be substantively reasonable’ or ‘supported

by some legitimate justification.’” Nielsen, 177 Wn. App. at 53 (quoting Russell W. Galloway,

Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 625-26 (1992)).




                                                 12
47523-5-II


       The level of review applied in a substantive due process challenge depends on the nature

of the interest involved. State v. Beaver, 184 Wn. App. 235, 243, 336 P.3d 654 (2014), aff'd, 184

Wn.2d 321, 358 P.3d 385 (2015). If no fundamental right is involved, the proper standard of

review is rational basis. In re Det. of Morgan, 180 Wn.2d 312, 324, 330 P.3d 774 (2014).

       Due process precludes the jailing of an offender for failure to pay a fine if the offender’s

failure to pay was due to his or her indigence. State v. Nason, 168 Wn.2d 936, 945, 233 P.3d 848

(2010). Under certain circumstances, however, the State may imprison an offender for failing to

pay his or her LFOs, such as if the offender is capable of paying but willfully refuses to pay or if

the offender does not make a genuine effort to seek employment or borrow money in order to pay.

Nason, 168 Wn.2d at 945. Due process requires the court to inquire into the offender’s ability to

pay, but the burden is on the offender to show nonpayment is not willful. Nason, 168 Wn.2d at

945. Therefore, “‘[t]t is at the point of enforced collection . . . , where an indigent may be faced

with the alternatives of payment or imprisonment, that he “may assert a constitutional objection

on the ground of his indigency.”’” Curry, 118 Wn.2d at 917 (quoting State v. Curry, 62 Wn. App.

676, 681-82, 814 P.2d 1252 (1991) (quoting United States v. Pagan, 785 F.2d 378, 381-82 (2d

Cir.), cert. denied, 479 U.S. 1017 (1986)), aff’d, 118 Wn.2d 911).

       Mathers argues his “substantive due process” rights were violated, Br. of Appellant at 11,

but because the same issues have already been addressed unfavorably to Mathers by Washington

courts, we disagree with him. In Curry, our Supreme Court held that the VPA statute did not

violate due process because “no defendant will be incarcerated for his or her inability to pay the

penalty assessment unless the violation is willful.” 118 Wn.2d at 918. Lundy followed this

precedent in the context of the DNA statute. 176 Wn. App. at 102-03. In that case, we stated,

“[O]ur courts have held that these mandatory obligations are constitutional so long as ‘there are



                                                13
47523-5-II


sufficient safeguards in the current sentencing scheme to prevent imprisonment of indigent

defendants.’” Lundy, 176 Wn. App. at 102-03 (emphasis in original) (quoting Curry, 118 Wn.2d

at 918); see also Kuster, 175 Wn. App. at 424-25 (relying on Curry, 118 Wn.2d at 917, and Blank,

131 Wn.2d at 241, to conclude DNA and VPA fees do not require an inquiry at the time of

sentencing).

       Because Blazina, 182 Wn.2d 827, did not change Washington case law regarding

mandatory LFOs, and because Mathers does not assert any new arguments, instead rearguing

issues that have been clearly addressed, we follow Curry and Lundy and conclude that the

imposition of DNA and VPA fees did not violate Mathers’s due process right.

       We affirm the trial court.




                                                           Melnick, J.

We concur:




       Johanson, P.J.




       Sutton, J.




                                              14
