                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            August 7, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 In the Matter of the                                                 No. 50657-2-II
 Personal Restraint Petition of

 DAVID A. TROUPE,

                                  Petitioner.
                                                                 PUBLISHED OPINION



       JOHANSON, J. — Under RCW 4.24.430, this court must deny an inmate’s request to waive

filing fees in any civil action or appeal against the State where the inmate has brought at least three

prior actions that were dismissed because they were “frivolous or malicious” and where the action

would not affect the duration of confinement. The clerk of this court determined that this statute

applied to David A. Troupe’s May 15, 2017 personal restraint petition (PRP) and ruled that the

PRP would be dismissed unless Troupe paid a $250 filing fee.

       Troupe seeks to modify our court clerk’s ruling on the basis that our court clerk violated

his due process rights and that RCW 4.24.430 violates equal protection. We hold that although

RCW 4.24.430 is not unconstitutionally vague, procedural due process required our court clerk’s

letter ruling to identify the prior actions that our court clerk relied on when he determined that the
No. 50657-2-II


statute applied. We also hold that Troupe’s equal protection argument lacks merit. Accordingly,

we grant Troupe’s motion to modify our court clerk’s ruling. We direct our court clerk to reissue

his ruling and to specifically identify the strikes upon which he relies to require Troupe to pay a

filing fee.

                                             FACTS

        On May 15, 2017, Troupe filed a PRP in this court, alleging that the Department of

Corrections (DOC) prevented him from receiving his mail in violation of his constitutional rights.

Troupe also submitted a statement of finances and requested waiver of the $250 filing fee.

        Our court clerk informed Troupe by letter ruling that “[u]nder In re Personal Restraint of

Troupe, 194 Wn. App. 701[, 378 P.3d 239] (2016)[, review denied, 188 Wn.2d 1002 (2017)] and

RCW 4.24.430” Troupe had to pay the $250 filing fee within 30 days of the letter ruling or face

dismissal of his petition. Letter Ruling, Troupe, No. 50657-2-II (Wash. Ct. App. June 28, 2017).

Troupe then filed a “Motion To Waive Fi[l]ing Fee,” requesting to modify our clerk’s ruling by

waiving the filing fee and to have counsel appointed. We appointed counsel for Troupe, ordered

supplemental briefing, and set the matter for oral argument.

        Previously, in 2015, Troupe had filed another PRP challenging conditions of his

confinement and obtained a fee waiver. Troupe, 194 Wn. App. at 703. After a commissioner of

this court denied the State’s motion to revoke the fee waiver, the State filed a motion to modify

the commissioner’s ruling. Troupe, 194 Wn. App. at 703. Holding that RCW 4.24.430 is valid

and applies to PRPs, we granted the State’s motion and ordered Troupe to pay his filing fee before

we would consider his PRP’s merits. Troupe, 194 Wn. App. at 708.




                                                2
No. 50657-2-II


                                              ANALYSIS

          The merits of Troupe’s PRP alleging that DOC violated his constitutional rights regarding

his mail are not before us. Rather, Troupe raises constitutional challenges to RCW 4.24.430 and

our court clerk’s letter ruling denying his motion to waive the filing fee.

                             I. STANDARD OF REVIEW AND RCW 4.24.430

          We review questions of constitutional law, such as a statute’s constitutionality, de novo.

State v. Murray, __ Wn.2d __, 416 P.3d 1225, 1227 (2018). We presume that a statute is

constitutional, and the challenging party bears the burden to prove that the statute is

unconstitutional beyond a reasonable doubt. State v. Sullivan, 143 Wn.2d 162, 180, 19 P.3d 1012

(2001).

          We may waive a PRP petitioner’s statutory filing fee and allow the petitioner to proceed in

forma pauperis if the petitioner sets forth by affidavit his inability to pay the fee and the proceeding

is brought in good faith. RCW 7.36.250; RAP 16.8. However,

          [i]f a person serving a criminal sentence . . . seeks leave to proceed in state court
          without payment of filing fees in any civil action or appeal against the state, . . .
          except an action that, if successful, would affect the duration of the person’s
          confinement, the court shall deny the request for waiver of the court filing fees if
          the person has, on three or more occasions while incarcerated or detained in any
          such facility, brought an action or appeal that was dismissed by a state or federal
          court on grounds that it was frivolous or malicious. One of the three previous
          dismissals must have involved an action or appeal commenced after July 22, 2011.

RCW 4.24.430 (emphasis added).1




1
 RCW 4.24.430 is based on the federal Prison Litigation Reform Act (PLRA) of 1995, 28 U.S.C.
§ 1915(g). Troupe, 194 Wn. App. at 703.


                                                   3
No. 50657-2-II


                                         II. DUE PROCESS

                                     A. VOID FOR VAGUENESS

       First, Troupe argues that RCW 4.24.430’s “frivolous or malicious” and “an action or

appeal” language is unconstitutionally vague as applied to him under the Fifth and Fourteenth

Amendments to the United States Constitution.2 The State disputes Troupe’s arguments and also

contends that the void-for-vagueness doctrine does not apply to RCW 4.24.430. We hold that

RCW 4.24.430 is subject to a void-for-vagueness challenge but that Troupe’s as-applied void-for-

vagueness arguments fail.

1.     PRINCIPLES OF LAW: VOID FOR VAGUENESS

       “A statute is unconstitutionally vague if (1) ‘it fails to define the offense with sufficient

precision that a person of ordinary intelligence can understand it,’ [“the definiteness requirement”]

or (2) ‘it does not provide standards sufficiently specific to prevent arbitrary enforcement [“the

enforcement requirement”].’” Murray, 416 P.3d at 1229 (internal quotation marks omitted)

(quoting State v. Duncalf, 177 Wn.2d 289, 296-97, 300 P.3d 352 (2013)).

       Under the definiteness requirement, “a statute is not sufficiently definite if it is framed in

terms so vague that persons of ‘common intelligence’ must necessarily guess at its meaning and

differ as to its application.” Sullivan, 143 Wn.2d at 182 (quoting City of Spokane v. Douglass, 115

Wn.2d 171, 179, 795 P.2d 693 (1990)). In examining a statute, we look to the entire enactment’s

context. City of Spokane, 115 Wn.2d at 180. A statute is not unconstitutionally vague merely



2
  Troupe also cites to the Washington Constitution, article I, § 3, but makes no independent
argument under that provision. Thus, we do not reach any claim under the state constitution. State
v. Brett, 126 Wn.2d 136, 181, 892 P.2d 29 (1995).


                                                 4
No. 50657-2-II


because it fails to define some terms; we attribute to those terms their plain and ordinary dictionary

definitions. City of Spokane, 115 Wn.2d at 180; Murray, 416 P.3d at 1229. And “[i]f a statute can

be interpreted so as to have as a whole the required degree of specificity, then it can withstand a

vagueness challenge despite its use of a term which, when considered in isolation, has no

determinate meaning.” Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 741, 818 P.2d 1062

(1991).

          Under the enforcement requirement, the due process clause forbids statutes that contain no

standards and allow the decision-maker to subjectively decide what conduct the statute proscribes.

City of Spokane, 115 Wn.2d at 181. The question is whether the terms are “‘inherently subjective

in the context in which they are used.’” City of Spokane, 115 Wn.2d at 181 (quoting State v.

Worrell, 111 Wn.2d 537, 544, 761 P.2d 56 (1988)). Merely because a statute invites a subjective

evaluation to determine whether it has been violated does not make the statute unconstitutional;

the statute must invite an inordinate amount of discretion. City of Spokane, 115 Wn.2d at 181.

          When evaluating a void-for-vagueness challenge, we must determine whether the

challenged statute involves First Amendment rights. Sullivan, 143 Wn.2d at 184. Unless the

challenge implicates First Amendment interests, we evaluate the statute for vagueness “‘as

applied’ in light of the particular facts of the case.” Sullivan, 143 Wn.2d at 184 (quoting State v.

Halstien, 122 Wn.2d 109, 117, 857 P.2d 270 (1993)).

2.        THRESHOLD ISSUE: APPLICABILITY OF VOID-FOR-VAGUENESS ANALYSIS

          As a threshold issue, the State argues that RCW 4.24.430 is not subject to a void-for-

vagueness challenge. We disagree.




                                                  5
No. 50657-2-II


          Void-for-vagueness challenges may be brought against statutes that deprive one of a

protected liberty or property3 interest within the meaning of procedural due process. See Mathews

v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Seven Gables Corp. v.

MGM/UA Entm’t Co., 106 Wn.2d 1, 11, 721 P.2d 1 (1986). For procedural due process purposes,

protected liberty interests include interests guaranteed by the United States Constitution. In re

Pers. Restraint of McCarthy, 161 Wn.2d 234, 240, 164 P.3d 1283 (2007). Thus, void-for-

vagueness challenges may be brought against civil or criminal statutes, depending on the interests

implicated.4 See Boutilier v. Immigration & Naturalization Servs., 387 U.S. 118, 123, 87 S. Ct.

1563, 18 L. Ed. 2d 661 (1967), cited in In re Det. of Danforth, 173 Wn.2d 59, 72, 264 P.3d 783

(2011).

          The federal Supreme Court has explained that void for vagueness applies even where state

action only indirectly threatens to inhibit a constitutionally derived right:

          The degree of vagueness that the [U.S.] Constitution tolerates—as well as the
          relative importance of fair notice and fair enforcement—depends in part on the
          nature of the enactment. . . .

3
  Although the statute requires Troupe to pay a filing fee, this is not a “property” deprivation.
Troupe does not have a right to have the filing fee waived; rather, courts have the inherent power
to waive court fees where justice so requires. Troupe, 194 Wn. App. at 704. Thus, by making the
filing fee mandatory for certain inmates, RCW 4.24.430 does not deprive Troupe of a property
interest within the meaning of due process. Neither does the statute involve a threatened
deprivation of Troupe’s “liberty” in the sense of his freedom from confinement. Necessarily,
RCW 4.24.430 does not apply to actions affecting the length of confinement. However, as
explained in this section, RCW 4.24.430 does concern Troupe’s liberty interests insofar as it
requires dismissal of his PRP, which seeks to vindicate constitutionally protected interests.
4
  Our Supreme Court has applied void-for-vagueness analysis to challenges raised against civil
statutes as well. See Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 465, 722 P.2d 808
(1986) (regulatory statutes prohibiting certain types of conduct and imposing sanctions for
violation of their standards); Seattle-King County Council of Camp Fire v. Dep’t of Revenue, 105
Wn.2d 55, 57, 62, 711 P.2d 300 (1985) (tax statute providing that an exemption no longer applied).


                                                  6
No. 50657-2-II


               . . . [P]erhaps the most important factor affecting the clarity that the
       Constitution demands of a law is whether it threatens to inhibit the exercise of
       constitutionally protected rights.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S. Ct.

1186, 71 L. Ed. 2d 362 (1982) (emphasis added).

       Here, Troupe filed his PRP to vindicate constitutional rights allegedly violated by the

conditions of his confinement. Indeed, PRPs are routinely brought by inmates to challenge the

conditions of their confinement as violating various constitutional rights. See, e.g., In re Pers.

Restraint of Arseneau, 98 Wn. App. 368, 371-72, 989 P.2d 1197 (1999) (holding RAP 16.4(c)(6)

allows PRPs challenging the conditions of incarceration). Constitutional rights give rise to

protected liberty interests. McCarthy, 161 Wn.2d at 240. Thus, to the extent that RCW 4.24.430

applies to PRPs such as Troupe’s that challenge confinement conditions as violating constitutional

rights, imposition of a mandatory filing fee on petitioners unable to pay the fee indirectly

implicates their liberty interests. And even a statute that only indirectly affects the exercise of

constitutionally protected rights is subject to a void-for-vagueness challenge. Village of Hoffman

Estates, 455 U.S. at 498. Thus, Troupe may bring a void-for-vagueness challenge against RCW

4.24.430.

       Further, the State relies upon a case in which Division One of this court analyzed a void-

for-vagueness challenge brought against a civil attorney fee statute, RCW 4.84.185. Rhinehart v.

Seattle Times, 59 Wn. App. 332, 798 P.2d 1155 (1990), cited in Dep’t of Corrections’ Resp. to

Pet’r’s Mot. to Modify, at 11. Citing case law about criminal statutes and void-for-vagueness

challenges, the Rhinehart court rejected a challenge that the term “frivolity” in RCW 4.84.185 was

void for vagueness. 59 Wn. App. at 340 (citing Worrell, 111 Wn.2d at 544). If RCW 4.84.185,


                                                7
No. 50657-2-II


which allows a judge to levy attorney fees on a nonprevailing party who advanced frivolous claims,

is subject to a void-for-vagueness challenge, then RCW 4.24.430, prohibiting waiver of a filing

fee for certain petitioner-inmates, is also subject to void-for-vagueness challenges.

         For these reasons, we hold that RCW 4.24.430 is subject to a void-for-vagueness challenge.

3.       AS-APPLIED CHALLENGE

         Troupe neither argues that RCW 4.24.430 involves First Amendment rights nor disputes

the State’s characterization of his challenge as an “as-applied” challenge. Because RCW 4.24.430

does not directly involve First Amendment rights, Troupe’s argument is properly evaluated as an

“as-applied” challenge. See Sullivan, 143 Wn.2d at 184. We consider Troupe’s void-for-

vagueness arguments in light of the particular facts of his case.

4.       “FRIVOLOUS OR MALICIOUS”: DEFINITENESS REQUIREMENT MET

         The parties dispute whether under the definiteness requirement, the words “frivolous” and

“malicious” are terms with such vague definitions that persons of common intelligence would

guess at their meanings and differ in their applications. But the parties overlook the context of the

phrase “frivolous or malicious” in RCW 4.24.430 and that context provides the necessary clarity.

         For RCW 4.24.430’s purposes, it is only a prior action or appeal “that was dismissed by a

state or federal court on grounds that it was frivolous or malicious” that qualifies to be counted

against the petitioner as a “strike.”5 (Emphasis added.) A “grounds” in the sense used in RCW

4.24.430 is a “foundation or basis on which knowledge, belief, or conviction rests” and a “premise,

reason, or collection of data upon which something . . . is made to rely for cogency or validity.”



5
    We adopt the parties’ use of “strike” for a qualifying dismissal under RCW 4.24.430.


                                                 8
No. 50657-2-II


WEBSTER’S THIRD NEW INT’L DICTIONARY 1002 (2002). Accordingly, RCW 4.24.430’s plain

language applies to those prior actions where a court dismissed the action because it was frivolous

or malicious. RCW 4.24.430 requires us to look to the reason for a prior dismissal, not to make

our own independent determination of the prior action’s merits.

       Troupe does not dispute that on four occasions, a federal or state court has dismissed an

action filed by Troupe and has included in its dismissal order an express ruling that the action was

“frivolous” or “malicious” under RCW 4.24.430 or its federal counterpart, 28 U.S.C. § 1915(g). 6

A person of common intelligence would know that based on the reason for the prior dismissal,

each of these dismissals qualified as an action “that was dismissed by a state or federal court on

grounds that it was frivolous or malicious.” RCW 4.24.430 (emphasis added).

       Even if a statute uses a term that when considered in isolation has no determinate meaning,

the statute withstands a vagueness challenge if interpreted as a whole it has the required degree of

specificity. Haley, 117 Wn.2d at 741. Here, reading “frivolous or malicious” in context and under

the facts of this case, there is no question that RCW 4.24.430 applies to the four prior dismissals.




6
  Dep’t of Corrections’ Resp. to Pet’r’s Mot. to Modify, Ex. 2 at 2, Order Granting Defendant’s
Motion to Dismiss and Finding per RCW 4.24.430, David Troupe v. Amy Evensen, No. 14-2-
00038-4 (Walla Walla County Sup. Ct., May 12, 2014); Dep’t of Corrections’ Resp. to Pet’r’s
Mot. to Modify, Ex. 3 at 15, Report and Recommendation, David Troupe v. Edward Woods, et al.,
No. 3:16-CV-05077-RBL-DWC (W.D. Wash. Feb. 16, 2017); see also Dep’t of Corrections’ Resp.
to Pet’r’s Mot. to Modify, Ex. 3, Order Adopting Report and Recommendation, Troupe v. Woods;
Dep’t of Corrections’ Resp. to Pet’r’s Mot. to Modify, Ex. 4 at 2, Order Adopting Report and
Recommendation, David Troupe v. William Swain, et al., No. 16-5380 RJB-DWC (W.D. Wash.
June 5, 2017); Dep’t of Corrections’ Resp. to Pet’r’s Mot. to Modify, Ex. 5 at 2, Order on Motion
To Dismiss and Motion to Revoke In Forma Pauperis Status, David Troupe v. Wash. Dep’t of
Corr., No. 16-2-04332-34 (Thurston County Sup. Ct. Feb. 10, 2017).


                                                 9
No. 50657-2-II


Thus, as applied to Troupe, RCW 4.24.430’s “frivolous or malicious” language meets the

definiteness requirement.7

5.     “FRIVOLOUS OR MALICIOUS”: ENFORCEMENT REQUIREMENT MET

       Troupe also argues that the “frivolous or malicious” language fails to meet the enforcement

requirement. That is, he claims that the language is unconstitutionally vague because it provides

no guidance to this court and thus relies on this court’s subjective judgment about whether a prior

action was “frivolous or malicious” within RCW 4.24.430’s meaning. We disagree.

       In Troupe’s case, RCW 4.24.430’s “frivolous or malicious” language did not require an

inherently subjective determination by this court or invite an inordinate amount of discretion. See

City of Spokane, 115 Wn.2d at 181. Rather, the statute provided an objective standard: whether

the prior dismissals specified that the action was frivolous or malicious. Again, here, at least four

of Troupe’s prior dismissals specified that the action was “frivolous” or “malicious” under RCW

4.24.430 or its federal counterpart. Accordingly, we reject Troupe’s argument.

6.     “AN ACTION OR APPEAL”: DEFINITENESS REQUIREMENT MET

       Troupe also briefly argues that the requirement that a qualifying dismissal be of “an action

or appeal” failed to provide him with adequate notice that “dismissal of PRPs constituted a

‘strike.’” Am. Mot. to Modify Ct. Clerk’s Ruling Regarding Ct. Filing Fee at 12. He asserts that

RCW 4.24.430 failed to inform him that a PRP was a “civil” action. Again, we disagree.

       Regardless of whether the prior, dismissed action was criminal or civil, it counts as a strike

under RCW 4.24.430, assuming it meets the other statutory requirements. RCW 4.24.430 does


7
  We do not reach the question of whether the statute is unconstitutionally vague if the prior
dismissals do not specify that the action was “frivolous” or “malicious.”


                                                 10
No. 50657-2-II


not say that this court only looks to whether a person brought “a civil action or appeal that was

dismissed by a state or federal court.” The plain language of the statute supports that any “action

or appeal” could form the basis for a strike. Troupe’s argument reads into the statute an additional

requirement and then challenges whether that requirement is void for vagueness.

7.     CONCLUSION: NOT VOID FOR VAGUENESS

       Troupe fails to show that the “dismissed . . . on grounds that it was frivolous or malicious”

provision of RCW 4.24.430 violates either the definiteness or enforcement requirements of the

void-for-vagueness doctrine. And he fails to show that the “an action or appeal” provision violates

the definiteness requirement. Accordingly, we hold that Troupe does not meet his burden to show

beyond a reasonable doubt that RCW 4.24.430 is unconstitutionally vague.

                                 B. FAILURE TO IDENTIFY STRIKES

       Troupe argues that our court clerk’s letter ruling violated due process because it failed to

specify the prior actions being counted as “strikes.” The State responds that the issue is moot

because the State provided prior dismissals that could qualify as strikes. Alternatively, the State

asserts that procedural due process does not apply here. We hold that the issue is not moot, that

procedural due process applies, and that it was error for our court clerk’s ruling not to specify the

prior dismissals that counted as strikes.

1.     MOOTNESS

       As a threshold issue, the State argues that the procedural due process issue is moot because

the State has now provided Troupe with copies of potential strikes. We disagree.




                                                 11
No. 50657-2-II


        “As a general rule, we do not consider questions that are moot.” State v. Hunley, 175

Wn.2d 901, 907, 287 P.3d 584 (2012). “A case is technically moot if the court can no longer

provide effective relief.” Hunley, 175 Wn.2d at 907.

        Troupe’s argument is not moot. His request is to know which cases our court’s clerk, not

the State, relied upon as strikes so that he may have the opportunity to review and contest whether

those strikes met the conditions set forth in RCW 4.24.430.

        The State is incorrect that the letter ruling’s citation to this court’s opinion in Troupe’s

prior PRP, Troupe, 194 Wn. App. 701, sufficed to identify the strikes. That opinion did not list

the prior actions counted as strikes when Troupe filed his 2015 PRP. See Troupe, 194 Wn. App.

701. Neither is the State’s providing copies of prior actions that it thinks our court clerk relied

upon an adequate substitute for the specific prior actions that our court clerk actually relied on in

his letter ruling.

        We can provide effective relief by requiring our court clerk to state the cases relied on as

strikes in his letter ruling. Because we can provide effective relief, the issue is not moot.

2.      PROCEDURAL DUE PROCESS APPLIES AND REQUIRES SPECIFYING GROUNDS FOR RULING

        Due process requires the fundamental fairness of governmental activity. Clark v. Arizona,

548 U.S. 735, 771, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006). And a fundamental part of

procedural due process is the right to be heard “‘in a meaningful manner.’” Downey v. Pierce

County, 165 Wn. App. 152, 165, 267 P.3d 445 (2011) (internal quotation marks omitted) (quoting

Mathews, 424 U.S. at 333).

        Protected liberty interests for procedural due process purposes include constitutionally

guaranteed interests, and procedural due process applies when a statute threatens to inhibit the


                                                 12
No. 50657-2-II


exercise of a constitutionally protected right. McCarthy, 161 Wn.2d at 240; Village of Hoffman

Estates, 455 U.S. at 499. “[O]nce it is determined that the Due Process Clause applies, ‘the

question remains what process is due.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541,

105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.

Ct. 2593, 33 L. Ed. 2d 484 (1972)). When determining what procedural due process requires in a

given situation, we look to the private interest affected, the risk of an erroneous deprivation of the

interest, and the government’s interest, including the function involved and fiscal and

administrative burdens that the additional procedural requirement would entail. Mathews, 424

U.S. at 335.

       Because a PRP is a vehicle by which petitioner-inmates may seek to vindicate fundamental

constitutional rights, we hold that at least minimal procedural due process must be provided.8 If a

petitioner-inmate is unable to pay the filing fee and RCW 4.24.430 applies, the petitioner-inmate’s

PRP will be dismissed. Thus, the application of RCW 4.24.430 at least threatens the vindication

of constitutionally protected rights when applied to a PRP arguing that the petitioner’s

constitutional rights were violated.

       The procedure used bears a risk of erroneous deprivation. Without a clerk’s ruling

specifying the dismissals that qualify as strikes, a petitioner-inmate is unable to meaningfully



8
   The State relies on Carson v. Johnson for the proposition that RCW 4.24.430’s federal
counterpart, 28 U.S.C. §1915(g), does not implicate a protected liberty or property interest. 112
F.3d 818, 821 (5th Cir. 1997), cited in The Dep’t of Corrections’ Suppl. Br. at 5. But Carson is
distinguishable because it did not discuss whether procedural due process applies when an inmate
files a PRP arguing that his constitutional rights were violated and because the U.S. Supreme Court
had already held that the request at issue did not implicate any protected liberty interest. 112 F.3d
at 821.


                                                 13
No. 50657-2-II


challenge that ruling. RCW 4.24.430 contains multiple conditions precedent for a dismissal to

qualify as a strike: it must have been brought while the petitioner-inmate was “incarcerated or

detained” and it must have been dismissed “on grounds that it was frivolous or malicious.”

Additionally, at least one dismissal “must have involved an action or appeal commenced after July

22, 2011.” RCW 4.24.430. Unless a court clerk’s ruling specifies the qualifying strikes, a

petitioner-inmate is left without the ability to meaningfully challenge whether a dismissal meets

the criteria for counting as a strike.

        Finally, the government’s interest in not requiring a court clerk to specify the grounds for

a determination that RCW 4.24.430 applies is minimal. To do so requires identifying only the

dismissals counted as strikes and constitutes a minimal additional administrative burden.9

        The State asserts that procedural due process was satisfied because it provided Troupe the

prior actions that could have been counted as strikes. But as discussed above, we do not know

which prior actions were actually relied upon by our court clerk, so this argument fails.

        Consideration of the interests affected, the risk of erroneous deprivation, and the

government’s countervailing interests shows that a court clerk’s letter ruling under RCW 4.24.430

should specify the dismissals counted as strikes. Indeed, failure to do so impairs the fundamental

procedural due process guarantee of being heard in a meaningful manner. See Downey, 165 Wn.

App. at 165. Further, this goes to the central concern of due process: the fundamental fairness of



9
  Troupe’s briefing on this issue relies on procedural due process holdings about evidentiary
burdens or sentencing court discretion. These cases are inapposite, and we do not rely upon them.
See Hunley, 175 Wn.2d at 912; State v. Manussier, 129 Wn.2d 652, 681, 921 P.2d 473 (1996);
State v. Ford, 137 Wn.2d 472, 481, 973 P.2d 452 (1999); State v. Herzog, 112 Wn.2d 419, 431-
32, 771 P.2d 739 (1989).


                                                14
No. 50657-2-II


the procedure. Clark, 548 U.S. at 771. We hold that procedural due process requires our court

clerk’s letter ruling to list the dismissals counted as strikes under RCW 4.24.430.

                                      III. EQUAL PROTECTION

       Troupe argues that RCW 4.24.430 violates equal protection because it impermissibly treats

petitioner-inmates “who possess a more sophisticated knowledge of court rules” differently than

petitioner-inmates “who are less skilled or knowledgeable.” Am. Mot. to Modify Ct. Clerk’s

Ruling Regarding Ct. Filing Fee at 14. We disagree.

       The Fourteenth Amendment to the United States Constitution entitles citizens to equal

protection. “Absent a fundamental right or suspect class, or an important right or semisuspect

class,” we apply rational basis scrutiny to a challenged statute. State v. Hirschfelder, 170 Wn.2d

536, 550, 242 P.3d 876 (2010). Prisoners are not a suspect class. King County Dep’t of Adult &

Juvenile Det. v. Parmelee, 162 Wn. App. 337, 359, 254 P.3d 927 (2011).

       Under rational basis scrutiny, “state action does not violate the equal protection clause if

there is a rational relationship between the classification and a legitimate state interest.” State v.

Osman, 157 Wn.2d 474, 486, 139 P.3d 334 (2006). Indeed, “the legislative classification will be

upheld unless it rests on grounds wholly irrelevant to achievement of legitimate state objectives.”

State v. Shawn P., 122 Wn.2d 553, 561, 859 P.2d 1220 (1993).

       At the outset, Troupe argues that the statute differentiates among petitioner-inmates on the

basis of legal sophistication. But the statute expressly differentiates among petitioner-inmates

based on their history of bringing actions dismissed as frivolous or malicious, not on the basis of

their legal sophistication. These distinctions may, but will not, necessarily correlate. For example,

an action could be maliciously brought by a sophisticated litigant. Or conversely, an action


                                                 15
No. 50657-2-II


brought in federal court could be a “routine” dismissal for failure to exhaust remedies, yet not be

designated “frivolous.” Green v. Young, 454 F.3d 405, 409 (4th Cir. 2006) (holding routine

dismissals on exhaustion grounds are not PLRA strikes). An unsophisticated litigant might face a

routine dismissal for failure to exhaust remedies, but this dismissal would not necessarily qualify

as a strike. Because “unsophisticated” petitioner-inmates may overlap with but do not necessarily

correlate with petitioner-inmates with a history of filing frivolous or malicious actions, we reject

Troupe’s argument that the statute distinguishes among petitioner-inmates on the basis of legal

sophistication.

        Troupe does not argue that litigants with a history of frivolous or malicious dismissals are

a suspect or semisuspect class; rather, he argues that RCW 4.24.430 fails rational basis scrutiny.

And as a prisoner not claiming his classification violates a fundamental right, rational basis review

applies to Troupe.      King County Dep’t of Adult & Juvenile Det., 162 Wn. App. at 359.

Accordingly, we review whether there is a legitimate state objective that has a rational relationship

to the classification at issue.

        The text and legislative history of RCW 4.24.430 show that the legislature’s intent when it

enacted that statute was to conserve state resources and reduce abusive inmate litigation. The

statute penalizes inmates who have a history of filing frivolous or malicious lawsuits by effectively

preventing them from proceeding at public expense in state court. RCW 4.24.430. The act creating

RCW 4.24.430 was “AN ACT Relating to restrictions on legal claims initiated by persons serving

criminal sentences in correctional facilities.” SUBSTITUTE H.B. 1037, at 1, 62nd Leg., Reg. Sess.

(Wash. 2011). Thus, the text of the statute and enacting legislation show that RCW 4.24.430’s

purpose is to restrict frivolous or malicious inmate litigation by financially penalizing inmates.


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No. 50657-2-II


       The legislative history for RCW 4.24.430 includes supporters’ public hearing testimony

regarding the bill. This testimony included that as a result of the passage of the PLRA, 28 U.S.C.

§ 1915(g), state courts had been flooded by inmate litigation because inmates with a history of

abusive litigation could bring actions at public expense in state, but not federal, court. Hr’g on

Substitute H.B. 1037 Before the House Appropriations Subcomm. on Gen. Gov’t at 34:38-54,

38:34-55, 62nd Leg., Reg. Sess. (Wash. Feb. 10, 2011).10 The purpose was to limit the use of

public funding, in the form of court fee waivers, to fund abusive inmate litigation, including

litigation by inmates with a history of filing frivolous or malicious cases. Hr’g on Substitute H.B.

1037 at 33:25-46. Thus, the legislative history supports that RCW 4.24.430’s purposes are to

conserve state resources and deter abusive inmate litigation.

       Curtailing abusive inmate litigation and conserving financial resources are legitimate state

objectives. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 (3d Cir. 2001) (deterring frivolous

prisoner filings is a legitimate state interest); King County Dep’t of Adult & Juvenile Det., 162 Wn.

App. at 360 (preserving state resources is a legitimate state interest). And fiscally penalizing

petitioner-inmates who have a history of filing frivolous or malicious actions is rationally related

to both objectives. For these reasons, RCW 4.24.430 survives rational basis review, and Troupe’s

equal protection argument fails.




10
    Video recording by TVW, Washington State’s Public Affairs Network, available at
https://www.tvw.org/watch/?eventID=2011021225.
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No. 50657-2-II


                                        IV. CONCLUSION

       Accordingly, we grant the motion to modify our court clerk’s letter ruling. We direct our

court clerk to reissue his ruling and to specifically identify the strikes upon which he relies to

require Troupe to pay a filing fee.



                                                    JOHANSON, J.
 We concur:



MAXA, C.J.




SUTTON, J.




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