                                                               FILED
                                                            MARCH 14, 2017
                                                      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

STATE OF WASHINGTON,                           )         No. 34112-7-111
                                               )         (consolidated with
                     Respondent,               )         No. 34113-5-111,
                                               )         No. 34114-3-111,
              V.                               )         No. 34115-1-111)
                                               )
NICHOLAS S. ROY,                               )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, J. - Nicholas S. Roy appeals four trial court orders, each

denying his request to strike collections costs and fees associated with each of his four

legal financial obligation (LFO) balances. He asserts four arguments as to why the trial

court erred by not striking the annual $100 fee assessed by the Asotin County clerk's

office on his LFO balances. We reject three of his arguments, but remand one argument

so that the State may provide evidence to the trial court so the trial court can properly

resolve that issue. In his statement of additional grounds for review (SAG), he asserts

two reasons why the trial court erred by not striking garnishment costs. We reject those

arguments.
No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III
State v. Roy


                                           FACTS

       Between 1995 and 2002, Mr. Roy accrued four separate LFO balances stemming

from four felony convictions. In each judgment and sentence, the trial court left a box

unchecked that would have otherwise mandated Mr. Roy to pay the LFO collection costs.

       Beginning in 2008, and as the responsibility for collecting each LFO balance

shifted from the Department of Corrections to the Asotin County clerk's office, that

office began assessing an annual $100 fee on each of his LFO balances.

       In 2015, Mr. Roy filed four separate but similar motions, each relating to his four

LFO balances which total more than $30,000. Each motion sought to strike all

garnishment costs, fees, and a renewal of judgment assessment. The State conceded that

the renewal of judgment assessment should be stricken, but otherwise opposed the

motions. The trial court entered four separate orders denying Mr. Roy's requests in so far

as they related to collection costs and fees.

       Mr. Roy timely appealed.

                                         ANALYSIS

       Questions of statutory construction are reviewed de novo. State v. Roggenkamp,

153 Wn.2d 614, 621, 106 P.3d 196 (2005). The purpose is to determine and carry out the

legislature's intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014). This



                                                2
No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III
State v. Roy


court first looks at the statute's plain meaning by looking at the "ordinary meaning of the

language at issue, the context of the statute in which that provision is found, related

provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572, 578,

210 P.3d 1007 (2009). "A court's inquiry ends if the statute is unambiguous after

reviewing its plain meaning." Alvarado v. Dep't of Licensing, 193 Wn. App. 171, 174,

371 P.3d 549 (2016).

       General overview

       Chapter 36.18 RCW sets forth various fees that county officers collect from users

of governmental services. These fees, some of which are shared with the state, raise

revenue for state and county governments.

      RCW 36.18.016(29) provides: "For the collection of an adult offender's unpaid

legal financial obligations, the clerk may impose an annual fee of up to one hundred

dollars, pursuant to RCW 9.94A.780." The only part ofRCW 9.94A.780 that pertains to

clerks and LFO collections is subsection (7), which provides:

      If a county clerk assumes responsibility for collection of unpaid legal financial
      obligations under RCW 9.94A.760, or under any agreement with the department
      under that section, whether before or after the completion of any period of
      community custody, the clerk may impose a monthly or annual assessment for the
      cost of collections. The amount of the assessment shall not exceed the actual cost
      of collections. The county clerk may exempt or defer payment of all or part of the
      assessment based upon any of the factors listed in subsection ( 1) of this section.
      The offender shall pay the assessment under this subsection to the county clerk

                                              3
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


       who shall apply it to the cost of collecting legal financial obligations under RCW
       9.94A.760.

       We first note that RCW 36.18.016(29) uses the term "fee," and RCW

9.94A.780(7) uses the term "assessment." Because the legislature chose to use different

terms, we could conclude the two terms mean different things. See Densley v. Dep 't of

Ret. Sys., 162 Wn.2d 210,219, 173 P.3d 885 (2007). However, RCW 36.18.016(29), by

explicitly stating that fees are imposable "pursuant to RCW 9.94A.780," requires us to

reach the opposite conclusion: we conclude the legislature intended that fees and

assessments are synonymous. This conclusion means that the limitation on how much the

clerk may charge for an assessment under RCW 9.94A.780(7) applies to the fee

authorized by RCW 36.18.016(29). Specifically, we hold that RCW 36.18.016(29)

authorizes a county clerk to impose an annual fee or assessment of up to $100 per LFO

judgment the clerk attempts to collect, provided the annual fee or assessment does not

exceed the annual cost of collection.

       1.     FEES PERMITTED BY CH. 36.18 RCW SUBSIDIZE THE GOVERNMENT

      Mr. Roy first argues, "COST OF COLLECTIONS DOES NOT INCLUDE

EXPENDITURES IN CONNECTION WITH THE MAINTENANCE AND

OPERATION OF GOVERNMENT AGENCIES." Appellant's Br. at 6. Mr. Roy uses

the definition of"costs" in RCW 10.01.160 to argue that the annual fee authorized by

                                            4
No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III
State v. Roy


RCW 36.18.016(29) should not be used to subsidize the day-to-day operations of the

clerk's office.

       Mr. Roy's argument misses the point. The fee authorized by RCW 36.18.016(29)

is not a cost. It is a fee. As earlier noted, the fees authorized by chapter 36.18 RCW are

intended to subsidize the day-to-day operations of government.

       2.         THE COUNTY CLERK MUST JUSTIFY ITS FEE


       Mr. Roy next argues "THE COUNTY HAS NOT INCURRED AUTHORIZED

COSTS FOR COLLECTIONS ACTIVITY FOR WHICH THE OFFENDER MAY BE

CHARGED A FEE." Appellant's Br. at 8. Mr. Roy correctly notes the limitation on

assessments contained in RCW 9.94A.780(7), that "[t]he amount ... shall not exceed the

actual cost of collections."

       The State responds that Mr. Roy, as the plaintiff, bears the burden of proof that the

clerk's costs do not exceed its $100 annual assessment, and because there is no evidence

on this issue, Mr. Roy's argument fails. We disagree.

       "Washington courts have historically applied the long-recognized principle that the

burden of proof is better placed on the party having easier access to the relevant

information." Nat'/ Elec. Contractors Ass 'n v. Employment Sec. Dep 't, 109 Wn. App.

213, 226, 34 P.3d 860 (2001). Application of the above rule is appropriate here for two



                                             5
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


reasons. First and foremost, RCW 9.94A.780(7) explicitly limits the clerk's authority by

requiring the clerk's assessment to be no more than its costs. To be in compliance with

this limitation, the clerk must have already calculated its costs to assure its annual

assessment is not in violation of the law. Second, the clerk knows how many employees

or fractions of employees are assigned to collect LFO balances. The clerk also knows

how many separate LFO balances it assesses each year. The clerk is required to have this

information. Assigning the clerk the burden of proof on this issue is manifestly

reasonable and consistent with established authority.

       Here, the State has not come forward with any evidence to justify the clerk's

annual $100 fees for the years in question. This is partially due to Mr. Roy assuming, but

not clearly articulating, that the State has the burden of justifying the annual fees. We

remand to the trial court so the State has an opportunity to justify the clerk's annual fees.

On remand, the State is not foreclosed from raising any affirmative defense to Mr. Roy's

challenge to some or all of these fees.

       3.     THE FEE MAY BE ASSESSED AGAINST INDIGENT DEFENDANTS


       Mr. Roy next argues, "A FEE FOR COSTS OF COLLECTIONS IS NOT

PROPERLY IMPOSED AS AN ADDITIONAL PENAL TY FOR OFFENDERS WHO

ARE UNABLE TO PAY LEGAL FINANCIAL OBLIGATIONS." Appellant's Br. at 9.



                                              6
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


He argues that State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) sets a policy that

costs and fees should not be imposed on indigent defendants.

       Blazina's holding was twofold. Primarily, RCW 10.01.160(3) expressly requires

trial courts to find that a defendant has the current or likely future ability to pay before

imposing discretionary LFOs. Blazina, 182 Wn.2d at 834. Additionally, the failure of

trial courts to adhere to this statutory limitation and make the required finding results in

great injustice, and appellate courts may use their discretion to review such errors, even

when those errors are unpreserved. Id. at 834-37.

       Blazina's primary holding is based on a statute that explicitly requires trial courts

to find the defendant has the present or likely future ability to pay prior to imposing

discretionary costs. Here, RCW 36.18.016(29) expressly gives the clerk discretion to

assess an annual fee of up to $100. There is nothing that limits the clerk's discretion in

this regard. 1 Because mandatory language similar to RCW 10.01.160(3) is not contained

in RCW 36.18.016(29), or even RCW 9.94A.780, we will not extend Blazina's holding to

the annual fee authorized by the fee statute.




       1
         RCW 9.94A.780(7) permits a county clerk to exempt or defer assessments of
collection costs because of a debtor's financial hardship. The language is permissive, not
mandatory.

                                                7
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


       4.      THE TRIAL COURT, BY NOT CHECKING THE BOX, DID NOT REMOVE THE
               CLERK'S DISCRETION TO IMPOSE COLLECTION COSTS


       Mr. Roy next argues, "THE COURT'S DECISION NOT TO SELECT THE PRE-

PRINTED SECTION OF THE JUDGMENT AND SENTENCE THAT PERMITS THE

CLERK OF THE COURT TO COLLECT FEES FOR THE COST OF COLLECTIONS

EXPRESSES THE COURT'S INTENT THAT SUCH FEES NOT BE IMPOSED."

Appellant's Br. at 11. The pertinent portion of the judgment and sentence reads:

       [ ] The defendant shall pay the costs of services to collect unpaid legal
       financial obligations. RCW 10. 73

Clerk's Papers at 10.

       We disagree with Mr. Roy's arguments for two reasons. First, the fee under

discussion is not a collection cost. For this reason, the unchecked box, which relates only

to collection costs, is irrelevant. Second, RCW 36.18.016(29) explicitly gives the clerk,

not the trial court, discretion whether to impose up to a $100 annual fee for LFO

collections.

       5.      APPEAL COSTS


       Mr. Roy requests that we not award the State appellate costs in the event it

prevails. The State opposes Mr. Roy's request.




                                             8
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


       In general, the substantially prevailing party on appeal is awarded appellate costs.

RAP 14.l(d); RAP 14.2. Here the State has prevailed on all but one issue, and may even

ultimately prevail on that issue. The State has substantially prevailed.

       Our June 10, 2016 "General Order" sets forth a procedure whereby a defendant

can request the panel to waive application of this general rule. The procedure envisions

the defendant providing the panel with financial information so we can determine

whether the defendant has the current or likely future ability to pay appellate costs.

       This determination is not satisfied by an earlier order determining indigency for

purposes of affording an attorney on appeal. This is because appellate costs are often a

small fraction of what an attorney would charge for an appeal. That is, one may have the

current or likely future ability to pay $500, but lack the current or likely future ability to

pay $5,000. For this reason, a defendant's compliance with our June 10, 2016 order is

necessary so we can properly exercise our discretion.

       Mr. Roy has chosen not to comply with our General Order and provide us his

financial information, beyond the (undisputed) fact that his LFOs total more than

$30,000. A recent rule adopted by our Supreme Court sets forth a presumption of

continued indigency throughout the appeal. RAP 15.2(f); State v. Sinclair, 192 Wn. App.

380, 393, 367 PJd 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016).



                                               9
No. 34112-7-III; 34113-5-III; 34114-3-III; 34115-1-III
State v. Roy


       We have little doubt that Mr. Roy remains indigent for purposes of affording an

attorney to represent him on appeal. But this is not germane to his ability to afford to pay

much lesser appellate costs. Mr. Roy's refusal to comply with our General Order

frustrates our goal of waiving imposition of appellate costs for those who truly lack the

current and likely future ability to pay those lesser costs.

       Because of his undisputed debt of over $30,000, we nevertheless grant his request

and deny the State an award of costs on appeal.

       SAG ISSUES

       Mr. Roy first argues the clerk lacked authority to impose garnishment costs

because the trial court did not check the box described above in each judgment and

sentence. We disagree.

       The unchecked box was not an order that collection costs could not be imposed.

Rather, it meant that the judgment and sentence did not independently authorize

imposition of such costs. But the clerk had authority to impose collection costs

independent from the judgment and sentence. RCW 6.27 .090(2) authorizes garnishment

costs to be collected against a garnishee defendant. Those costs include reasonable

processing and attorney fees as more particularly described therein.




                                               10
No. 34112-7-111; 34113-5-111; 34114-3-111; 34115-1-111
State v. Roy


       Mr. Roy next argues that garnishment costs should not be imposed against an

indigent defendant and cites Blazina. We earlier rejected a similar argument. We refuse

to extend Blazina to situations dissimilar to RCW 10.01.160(3). Here, imposition of

garnishment costs are authorized by a statute, and the statute does not limit imposition of

such costs to only those defendants with the current or likely future ability to pay.

       Affirmed in part; remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           Lawrence-Berrey, J.

I CONCUR:
                                                                                j



Fearing,




                                             11
                                      34112-7-111
           (consolidated w/ No. 34113-5-111; No. 34114-3-111; No. 34115-1-111


       SIDDOWAY, J. (dissent in part)- "When information necessary to proof 'is

exclusively within the knowledge of one or the other of the parties, the burden would be

upon the party possessed of that knowledge to make the proof."' Cedar River Water &

Sewer Dist. v. King County, 178 Wn.2d 763, 779, 315 P.3d 1065 (2013) (quoting Joll!ffe

v. N. Pac. R.R. Co., 52 Wash. 433, 436, 100 P. 977 (1909)). Where a party does not show

that information is exclusively in the hands of its adversary or any other reason why the

usual burden of proof should be reversed, our Supreme Court has declined to do· so. Id.

       National Electrical Contractors Ass 'n v. Employment Security Department, 109

Wn. App. 213, 226, 34 P.3d 860 (2001) does not hold otherwise. That case involved an

agency rule under which an employer was effectively foreclosed from appealing the

employment security department's informal determination of an employee's benefits

unless the employer could provide a quality of eligibility information that was in the

possession of the employee's union but was not available to the employer. See id. at 223.

The appellate court therefore interpreted the agency rule to require a showing by an

employer in the agency process that it could conceivably meet. The decision did not alter

the burden of proof in the court proceeding at all.

       Here, the trial court evidently did not view Nicholas Roy as contending that the

county's $100 fee was more than its "actual cost of collections" within the meaning of

RCW 9.94A.780(7). See Clerk's Papers at 142-43 (Decision & Order on Def.'s Mot. to
No. 34112-7-111 (consol. w/ No. 34113-5-111; No. 34114-3-111; and No. 34115-1-111)
State v. Roy


Strike Unauthorized Collection Fees). The argument that the fee is being used to

subsidize unrelated costs appears to have been raised for the first time on appeal. Mr.

Roy made no effort in the trial court to demonstrate that information about the county's

actual cost of collection is exclusively in county hands, nor could he make that showing.

Washington's Public Records Act (PRA), chapter 42.56 RCW, allows citizens broad

access to public records and provides a cause of action to challenge inadequate responses

to record requests. Belenski v. Jefferson County, 186 Wn.2d 452, 456-57, 378 P.3d 176

(2016).

      Before Mr. Roy sues the county for charging a collection fee that reflects more

than its actual cost (and again, I don't believe that was the nature of Mr. Roy's motion

below), he should first perform an inquiry that is reasonable under the circumstances and

form a belief that his claim is well grounded in fact. CR 11. Given the PRA, Mr. Roy

was particularly well positioned to have performed that inquiry.

      I also would not grant Mr. Roy's request that we deny the State an award of costs

on appeal where he has failed to comply with our general order. It is unfair to the

defendants who comply.

      For these two reasons, I dissent in part.




                                             ?) do~
                                                 Siddowaf0
                                                           .:J:-.
                                             2
