State v. Catling , 193 Wash. 2d 252 ( 2019 )

FIUE
IN CLERKS OFFICE
This opinion was
^led for record
ati186 Wash. 2d 596, 380 P.3d 459 (2016), which had just
issued the day before Catling's sentencing hearing.
The sentencing court had not yet reviewed Wakefield, took the LFO matter under
advisement, and ascertained that Catling's sole source of income was Social Security
disability benefits in the amount of $753 per month. Catling had been receiving these
benefits for approximately 10 years because of chronic pain and multiple corrective
surgeries regarding his congenital bladder condition.
On September 26, 2016, the trial court issued a written order imposing mandatory
LFOs totaling $800($500 for crime victims' compensation assessment (per RCW
7.68.035(l)(a)), $200 for criminal filing fee (per RCW 36.18.020(2)(h)), and $100 DNA
(deoxyribonucleic acid) collection fee (per RCW 43.43.7541)). The order stated, "[T]he
mandatory legal financial obligations can be ordered when a person is indigent and
whose only source of income is social security disability." Clerk's Papers(CP) at 35.
The order directed Catling to pay $25 per month starting January 5, 2017.
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On October 5, 2016, Catling moved the trial court to reconsider its imposition of
LFOs, again citing Wakefield and 42 U.S.C. § 407(a). The court denied the motion on
October 19, 2016, and Catling timely filed a notice of appeal on October 26, 2016.'
On appeal, the State conceded that the sentencing court erred in setting a payment
schedule obligating Catling to begin payment of his mandatory LFOs when the
information presented at sentencing indicated that Catling's only source of income was
Social Security disability benefits. The State argued, however, that the appropriate
remedy was not to strike the LFOs as Catling requested, but rather to strike the payment
schedule and require the defendant to periodically present proof to the trial court that he
continued to have no source of income except for Social Security disability benefits.
In a split decision, a panel of Division Three of the Court of Appeals held that
although the sentencing court may impose mandatory LFOs on a recipient of Social
Security disability benefits, it may not order such a defendant to pay those obligations
without first determining the defendant has another source of income. State v. Catling, 2
Wash. App. 2d 819, 820-26, 413 P.3d 27(2018). The Court of Appeals' dissent expressed
concern about the burden on the defendant of continuing court appearances, questioned
whether the defendant would ever be able to pay off the LFOs, and opined that such
circumstance would ultimately coerce the defendant to invade his sheltered income to pay
off the obligations. Id. at 845-47 (Fearing, C.J., dissenting). The dissent would have
'After Catling filed his appeal, the trial court revoked his DOSA sentence in an order filed on
January 20, 2017. The trial court also reset Catling's LEO payment schedule to commence on
January 15, 2018.
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remanded the matter to the sentencing court to determine whether Catling "will likely
receive other income in the indefinite future." Id. at 846.
The Court of Appeals' majority decision affirmed the imposition of the noted
mandatory LFOs but remanded to the trial court to amend the judgment and sentence to
specify that LFOs may not be satisfied out of funds protected by 42 U.S.C. § 407(a). Id.
at 821, 826.^ Catling petitioned for review.^ This court granted review "only on the issue
whether the imposition of mandatory [LFOs] on the Petitioner violates the Social
Security Act's antiattachment provision." Order Granting Review, State v. Catling, No.
95794-1 (Wash. Aug. 8, 2018).
ANALYSIS
1. Ramirez'^ controls portions of this case
As a threshold matter, this case is partially resolved by this court's recent decision
in Ramirez. In Ramirez, this court held that the legislature's overhaul of Washington's
LFO provisions in House Bill(KB) 1783, which became effective on June 7, 2018,
applied to a pending appeal concerning LFOs. This court explained:
House Bill 1783's amendments modify Washington's system of
LFOs, addressing some of the worst facets of the system that prevent
offenders from rebuilding their lives after conviction. For example. House
Bill 1783 eliminates interest accrual on the nonrestitution portions of LFOs,
it establishes that the DNA database fee is no longer mandatory if the
offender's DNA has been collected because of a prior conviction, and it
^ The Court of Appeals also declined to reach Catling's argument concerning LFOs for
defendants with mental health conditions (based on RCW 9.94A.777) because that issue was not
raised below.
^ Amici Disability Rights Washington and Northwest Justice Project filed briefs urging that
review be granted.
^ Our unanimous decision in State v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018), issued after
the parties filed their supplemental briefs in the present case.
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provides that a court may not sanction an offender for failure to pay LFOs
unless the failure to pay is willful. LAWS OF 2018, eh. 269, §§ 1, 18, 7. . . .
It also prohibits imposing the $200 filing fee on indigent defendants. Id. §
17. . . . We hold that House Bill 1783 applies prospectively to Ramirez
because the statutory amendments pertain to [financial obligations]
imposed on criminal defendants following conviction, and Ramirez's case
was pending on direct review and thus not final when the amendments were
enacted.
Ramirez, 191 Wash. 2d at 747. "Because House Bill 1783's amendments pertain to costs
imposed upon conviction and Ramirez's case was not yet final when the amendments
were enacted, Ramirez is entitled to benefit from this statutory change." Id. at 749.
Here, no restitution was imposed; as noted, the trial court imposed only three
LFOs: the criminal filing fee, the DNA collection fee, and the crime victim fund
assessment. As for the filing fee, the Ramirez decision explained,"House Bill 1783 . . .
amends the criminal filing fee statute, former ROW 36.18.020(2)(h)[(2015)], to prohibit
charging the $200 criminal filing fee to defendants who are indigent at the time of
sentencing. Laws OF 2018, ch. 269, § 17." M at 748. ROW 36.18.020(2)(h) now
provides, in pertinent part,"Upon conviction or plea of guilty ... an adult defendant in a
criminal case shall be liable for a fee oftwo hundred dollars, except thisfee shall not be
imposed on a defendant who is indigent as defined in RCW 10.101.010(3)(a) through
(c)." (Emphasis added.) Here, the record indicates that Catling was indigent at the time
of sentencing. He received public assistance in the form of Social Security disability
benefits and food stamps, thus meeting the criteria for indigency. See RCW
10.10L010(3)(a)(food stamps); CP at 84 (Catling received food stamps); see also CP at
86-88 (order permitting appeal at public expense). Thus, as in Ramirez,"the trial court
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improperly imposed ... the criminal filing fee." Ramirez, 191 Wash. 2d at 748. The
appropriate remedy is to "remand for the trial court to amend the judgment and sentence
to strike the improperly imposed LFOs." Id. at 750.
As for the trial court's imposition of the DNA collection fee, that LFO may also be
improper. Under HB 1783, the DNA collection fee is no longer mandatory if a DNA
sample has been collected from a defendant based on a prior conviction. RCW
43.43.7541 now provides, in relevant part, "Every sentence imposed for a crime specified
in RCW 43.43.754 [i.e., any felony] must include a fee of one hundred dollars unless the
state has previously collected the offender's DNA as a result of a prior conviction."
Laws of 2018, ch. 269, § 18. Since 2002, a felony conviction triggers the mandatory
taking of a DNA sample. See RCW 43.43.754; see also LAWS OF 2002, ch. 289, § 2.
Here, Catling has three prior adult felony convictions, two of which occurred after 2002.
The record does not indicate whether his DNA has been previously collected. If such
collection has occurred, the trial court's imposition of the DNA eollection fee here is
improper. See LAWS OF 2018, ch. 269, § 18; Ramirez, 191 Wn.2d at lAl. We remand to
the trial court with direction to determine whether Catling has previously had a DNA
sample collected and, if the court so finds, to strike the $100 DNA eollection fee.
Ramirez, 191 Wash. 2d at 747-48, 750.^
^ As noted, HB 1783 also eliminated interest accrual on all LFOs except restitution. See Laws
OF 2018, ch. 269, § 1(1). Accordingly, on remand, the trial court is directed to revise the
judgment and sentence to eliminate such interest on any qualifying remaining LFOs.
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As for the $500 crime victim fund assessment, HB 1783 retains this mandatory
LFO. RCW 7.68.035(l)(a) still provides in relevant part:
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 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.
Laws of 2018, ch. 269, § 19. Elsewhere, HB 1783 specifically and repeatedly adds that
"The crime victim penalty assessment under RCW 7.68.035 may not be reduced,
revoked, or converted to community restitution hours," LAWS OF 2018, ch. 269, §§ 8(5),
13(3)(f), 15(4)(f), and further adds,"An offender being indigent.. . is not grounds for
failing to impose ... the crime victim penalty assessment under RCW 7.68.035." LAWS
OF 2018, ch. 269, § 14(1). Concerning the crime victim fund assessment, we now turn to
the petitioner's arguments.
11. The imposition of the mandatorv LFO here does not violate 42 U.S.C. §
407(a)
Catling relies on Wakefield and Washington State Department ofSocial & Health
Services v. Guardianship Estate ofKeffeler, 537 U.S. 371, 123 S. Ct. 1017, 154 L. Ed. 2d
972(2003), arguing that "a court may not impose LFOs on a person whose sole source of
income derives from social security." Pefr's Suppl. Br. at 2(emphasis added)(boldface
omitted). We disagree.
The Social Security Act's antiattachment statute at issue here provides:
The right of any person to any future payment under this subchapter
shall not be transferable or assignable, at law or in equity, and none of the
moneys paid or payable or rights existing under this subchapter shall be
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subject to execution, levy, attachment, garnishment, or other legal process,
or to the operation of any bankruptcy or insolvency law.
42 U.S.C. § 407(a). As can be seen, this provision requires that Social Security moneys
cannot be reached to satisfy a debt. Notable for present purposes is what this statute does
not provide. It does not forgive a debt, it does not address use of other assets to retire a
debt, and it does not prohibit a debt; it only prohibits any use of Social Security moneys
for debt retirement.
In Wakefield, this court addressed a petitioner's motion, pursuant to RCW
10.01.160(4), to remit costs (discretionary LFOs), specifically noting that petitioner "is
not challenging . . . nondiscretionary LFOs." Wakefield, 186 Wash. 2d at 601; see also id.
at 601 n.l (noting "only discretionary costs are at issue"). This court found that the
district court erred at the remission hearing on several bases, particularly in imposing a
repayment schedule of $15 per month for the discretionary LFOs without regard to
whether such payments created a manifest hardship for the petitioner. Relevant here,
concerning 42 U.S.C. § 407(a), the Wakefield court also held "federal law prohibits
courts from ordering defendants to pay LFOs if the person's only source of income is
social security disability." Id. at 609(emphasis added). Again, the eontext of the
Wakefield decision concerned a motion for remittitur under RCW 10.01.160(4) for
discretionary LFOs and focused on the district court's imposition of a payment schedule
in that context without first properly determining petitioner's ability to pay. Wakefield
does not address the trial court's ability to impose mandatory LFOs. Thus, contrary to
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Catling's assertions, Wakefield does not stand for the proposition that mandatory LFOs
cannot be imposed on Catling.
As for Keffeler, Catling relies on this case for its discussion concerning the
parameters of"other legal process" as used in § 407(a). But Keffeler really does not
assist Catling. In Keffeler, the Supreme Court addressed a challenge by foster children to
DSHS's(Department of Social and Health Services) practice of reimbursing its expenses
for the foster children's care from Social Security benefits that the agency had received
directly as the foster children's representative payee. The Supreme Court held that
DSHS's reimbursement from the foster children's Social Security benefits "does not
violate § 407(a)." Keffeler, 537 U.S. at 392. The Court explained that "the case boils
down to whether the department's manner of gaining control of the federal funds
involves 'other legal process,' as [§ 407(a)] uses that term." Id. at 383. Applying
statutory construction principles, the Court explained that
"other legal process" should be understood to be process much like the
processes of execution, levy, attachment, and garnishment, and at a
minimum, would seem to require utilization of some judicial or quasi-
judicial mechanism, though not necessarily an elaborate one, by which
control over property passes from one person to another in order to
discharge or secure discharge of an allegedly existing or anticipated
liability.
Id. at 385. The Court further opined,"[Ajlthough execution, levy, attachment, and
garnishment typically involve the exercise of some sort ofjudicial or quasi-judicial
authority to gain control over another's property, the department's reimbursement
scheme operates on funds already in the department's possession and control, held on
terms that allow the reimbursement." Id. at 386. The Court held that because DSHS's
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use of the foster ehildren's benefits in its capacity as representative payee did not involve
the transfer of Social Security moneys by way of a judicial process, there was no
violation of the antiattachment statute. Id. at 386, 392.
Catling relies on Keffeler'?, discussion of"other legal process" as including a
judicial action transferring funds from one person to another. Such transfer indeed
occurred here as regards the trial court's order setting a $25 per month payment schedule.
The payment schedule order was issued as part ofthe sentencing hearing—a judicial
proceeding transferring property, thus meeting the "other legal process" prong of §
407(a). This does not advance Catling's position, however. Here, in its supplemental
briefing, the State concedes, as it did in the Court of Appeals, that the trial court erred in
ordering the defendant to pay the LFOs at a rate of $25 per month where the defendant's
only income was Social Security disability benefits. See Suppl. Br. of Resp't at 13, 20.
The State urges this court to affirm the remedy applied by the Court of Appeals, which
recognized the error and remanded to correct it.
The Court of Appeals, consistent with Wakefield, acknowledged that the trial
court's payment order—^that Catling pay $25 per month—"cannot be enforced against his
disability income per § 407(a)." Catling, 2 Wash. App. 2d at 826. In formulating an
appropriate remedy, the Court of Appeals found persuasive a Michigan appellate court
decision addressing 42 U.S.C. § 407(a), In re Lampart, 306 Mich. App. 226, 856 N.W.2d
192(2014).
In Lampart, a supervisory parent was ordered to pay restitution for her minor son's
admitted arson. The parent subsequently became disabled, after which her only income
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No. 95794-1
was her Social Security disability benefits. Id. at 229. On appeal from the trial court's
denial ofthe parent's motion to modify or cancel her restitution obligation, the Michigan
appellate court opined as follows:
If it were determined that [the parent's] only asset, or source of
income, is and remains from SSDI [(Social Security disability insurance)]
benefits, 42 USC § 407(a) prohibits the use of legal process—including by
a finding of contempt—from reaching those benefits to satisfy the
restitution order. If, however,[the parent] is found to have income aside
from her SSDI benefits, or other assets that are derived from other sources,
that income or those assets could be used to satisfy the restitution award.
The restitution order itself remains valid. Indeed,[the parent's] receipt of
SSDI benefits does not immunize her from the restitution order; rather, it
merely prohibits the trial court from using legal process to compel
satisfaction of the restitution order from those benefits. Because it is
possible that [the parent] may have assets or may receive income from
other sources in the future, we affirm the trial court's refusal to cancel or
modify [the parent's] restitution obligation.
The trial court's contempt powers similarly remain a valid tool in
enforcing the restitution order, and our decision today should not be read
otherwise. Again, a contempt hearing can be an appropriate vehicle for
determining income and assets from which the restitution order may
properly be enforced. However, the trial court may not compel [the parent]
to satisfy her restitution obligation out of her SSDI benefits, by a contempt
finding or other legal process, because [the parent] is entitled to the
protections of42 USC § 407(a).
Id. at 245-46 (citations omitted). Finding Lampart persuasive. Division Three in the
present case opined,"[A]s in Lampart, there is nothing in § 407(a) that invalidates the
underlying financial obligation. The antiattachment provision prevents levying against
Social Security disability proceeds, but it does not address the debt itself." Catling, 2
Wash. App. 2d at 826. Accordingly, the Court of Appeals remanded the case to the
sentencing court "to amend its judgment and sentence to indicate that the LFOs may not
be satisfied out of any funds subject to 42 U.S.C. § 407(a)." Id.
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No. 95794-1
As noted, the only remaining mandatory LFO that is not resolved by HB 1783, as
applied by Ramirez, is the $500 crime victim fund assessment. We affirm the Court of
Appeals' remand as to this remaining mandatory LFO.
The Court of Appeals' approach, comporting with both Wakefield and Lampart,
appropriately applies the plain language of42 U.S.C. § 407(a). The remedy employed
adheres to § 407(a)'s mandate that no Social Security disability benefits are available to
satisfy a debt, while at the same time recognizes that nothing in § 407(a)immunizes
criminal defendants receiving Social Security benefits from the imposition of mandatory
LFOs—here,the crime victim fund assessment. Catling does not convincingly argue that
the above remedy is in error. As discussed, neither Wakefield nor Keffeler, on which
Catling relies, requires a different result.
Similarly, Catling's assertion that Washington's statutes requiring courts to
impose mandatory LFOs conflict with 42 U.S.C. § 407(a) and therefore violate the
supremacy clause fails. As noted, only the crime victim fund assessment remains at issue
here; and, in any event, as discussed above, nothing in § 407(a) prohibits the imposition
of a financial obligation—§ 407(a) prohibits only any use of Social Security moneys for
debt retirement. While the trial court's payment order indeed violated § 407(a), the Court
of Appeals' remand and directive that no Social Security funds may be used to satisfy the
LFOs resolves any § 407(a) violation.
Finally, the Court of Appeals' remand order does not leave Catling in legal limbo,
that is, with a mandatory LFO imposed but with no directive from the court on how to
properly resolve it. Washington's LFO provisions address this possibility, authorizing
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No. 95794-1
the county clerk to monitor a defendant's changing circumstances and to alter the
defendant's payment schedule as needed. RCW 9.94A.760(8)(b)(recodified in HB 1783;
see Laws of 2018, ch. 269, §14(8)(b)), provides:
Subsequent to any period of supervision, or if the department is not
authorized to supervise the offender in the community, the county clerk
may make a recommendation to the court that the offender's monthly
payment schedule be modified so as to reflect a change in financial
circumstances. If the county clerk sets the monthly payment amount, or if
the department set the monthly payment amount and the department has
subsequently turned the collection of the legal financial obligation over to
the county clerk, the clerk may modify the monthly payment amount
without the matter being returned to the court. During the period of
repayment, the county clerk may require the offender to report to the clerk
for the purpose ofreviewing the appropriateness ofthe collection schedule
for the legalfinancial obligation. During this reporting, the offender is
required under oath to respond truthfully and honestly to all questions
concerning earning capabilities and the location and nature ofall property
orfinancial assets. The offender shall bring all documents requested by the
county clerk in order to prepare the collection schedule.
(Emphasis added.) This provision authorizes the clerk of the court to require the
defendant to report to the clerk's office to provide periodic updates regarding his
financial status, and here, that would include whether the defendant has any assets other
than his Social Security disability benefits.^ The statute also authorizes the clerk to set or
alter a fee schedule in response to defendant's changing circumstances. See also RCW
^ The concern expressed by the dissent below, that such reporting may become burdensome to
the defendant, has yet to materialize in this case. See Catling, 2 Wash. App. 2d at 835 (Fearing,
C.J., dissenting)(noting the "disruption in the offender's schedule" attendant with court
monitoring and reports to the clerk concerning outstanding LFOs); id. at 845 (expressing concem
that Catling "abides trapped in an enduring legal process" and "remains stuck in an ongoing,
burdensome court process"). Should such reporting indeed become overly burdensome at some
future date, such circumstance may be addressed by local court rule or by rule of this court. Cf.
Title 15 Rules of Appellate Procedure (addressing indigency determinations and the rights of
indigent parties).
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No. 95794-1
9.94A.760(1); Laws OF 2018, ch. 269, § 14(1)(authorizing the county clerk to "set the
amount" of the defendant's LFO payment schedule where the trial court has not done
so).'
In sum, only the crime victim fund assessment remains viable when HB 1783 is
applied under Ramirez. We affirm the Court of Appeals' remedy as to the remaining
LFO only.
CONCLUSION
We reverse the Court of Appeals in part, holding that under Ramirez, because HB
1783 applies, the trial court erred in imposing a $200 criminal filing fee on Catling, who
is indigent. Also, we remand to the sentencing court for a determination of whether
Catling has previously provided a DNA sample; if he has, the trial court's imposition of
the $100 DNA collection fee is error. Also, we affirm the imposition of the $500 crime
victim fund assessment but remand to the trial court to revise the judgment and sentence
and repayment order to comport with HB 1783 and to indicate that this LFO may not be
satisfied out of any funds subject to the Social Security Act's antiattachment statute, 42
U.S.C. § 407(a). Accordingly, we affirm in part and reverse in part, and remand to the
trial court for further proceedings consistent with this opinion.
' As noted, the clerk can also make modification recommendations to the court based on the
defendant's changed financial circumstances. RCW 9.94.760(8)(b); Laws of 2018, ch. 269, §
14(8)(b). Similarly, if the defendant is under supervision by the Department of Corrections, the
department may monitor and make recommendations to the court reflecting the defendant's
changed financial circumstances. RCW 9.94.760(8)(a); Laws of 2018, ch. 269, § 14(8)(a). And
finally, if the defendant fails to pay an LFO,the court "may . . . modify the terms of payment" of
the LFO (and "shall" so modify, if the defendant is indigent) if the court finds that the violation
was not willful. RCW 9.94B.040(4)(f); Laws of 2018, ch. 269, § 15(4)(f).
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No. 95794-1
WE CONCUR:
. CQ > l/lfi
7
15
State V. Catling
No. 95794-1
GonzAlez,J.(dissenting)—As a result of Jason Catling's debilitating
condition, he cannot work and relies on Social Security disability income(SSDI)to
meet his most basic needs. Catling qualified for disability income more than 10
years ago and, given his medical condition, will likely remain on it for the rest of
his life. As the majority properly recognizes, a court may not order someone to
pay legal financial obligations(LFOs)out of SSDI. Majority at 8; City ofRichland
V. Wakefield, 186 Wash. 2d 596, 609, 380 P.3d 459(2016); 42 U.S.C. § 407(a). The
majority nonetheless concludes that a court may order that same individual to pay
those same LFOs in a judgment and sentence. But a judgment and sentence is an
order of the court, and when that order imposes an LFO on a person who has only
SSDI, that order is unlawful. See Wakefield, 186 Wash. 2d at 609. I respectfully
dissent.
Plainly, it violates the antiattachment provision of the Social Security Act to
order someone who has only SSDI to pay LFOs. Wakefield, 186 Wash. 2d at 609; 42
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)
U.S.C. § 407(a). I see no distinction between imposing such an LFO in a judgment
and sentence and directing payment by separate order.
For individuals whose sole income is SSDI, the burdensome and coercive
effects of LFOs will all too often result in SSDI being used to satisfy them.
Individuals with LFOs are subject to the varying demands ofthe courts and clerks'
offices for check-ins in order to determine the individuals' ability to pay their
outstanding debts. ROW 9.94A.760(8)(b); see also State v. Nason, 168 Wash. 2d
936, 942, 233 P.3d 848 (2010)(requiring person to pay LFOs or automatically
report to jail). We can no longer ignore the fact that unpaid and unpayable LFOs
can impose significant burdens on people with LFOs and their families. Tarra
Simmons, Transcending the Stigma ofa Criminal Record: A Proposal to Reform
State Bar Character and Fitness Evaluations, 128 Yale L.J. Forum 759, 761
(2019). This can have a lifetime effect. As recognized by the dissenting judge
below,"[Bjecause of his disability, [Catling] abides trapped in an enduring legal
process and he suffers other coercive consequences." See State v. Catling, 2 Wn.
App. 2d 819, 845, 413 P.3d 27(2018)(Fearing, C.J., dissenting).
Court clerks are often charged with collecting LFOs. These clerks have the
authority to summon individuals with LFOs to report before them and share their
financial situation, including responding under oath to questions of the clerk and
providing sufficient documentation. RCW 9.94A.760(5),(8)(b). As Catling
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)
stresses, "Nothing in this statute limits the number oftimes the clerk can summon
the debtor to the clerk's office." Pet'r's Suppl. Br. at 11. This imposition is
particularly burdensome for Catling, who has a debilitating condition that leaves
him in chronic pain.
We should not ignore the heavy collateral consequences imposed by LFOs.
LFOs act as "a lien on Catling's civil rights." Catling, 2 Wash. App. 2d at 845
(Fearing, C.J., dissenting). An individual cannot vacate their record until their
LFO debt is satisfied and they receive a certificate of discharge, among other
requirements.^ Collateral consequences "appear in a variety of contexts and take a
variety offorms, including time-limited or lifetime bans on employment
opportunities, professional licenses, public benefits, public or private housing, and
financial aid or educational opportunities." Simmons, 128 Yale L.J. Forum at
761.
Our citizens have a constitutional right to vote. See Brower v. State, 137
Wash. 2d 44, 68, 969 P.2d 42(1998)(finding a fundamental right to vote under
article I, section 19 ofthe Washington Constitution); see also Reynolds v. Sims,
377 U.S. 533, 561-62, 84 S. Ct. 1362,12 L. Ed. 2d 506(1964)(finding a
fundamental right to vote under the United States Constitution). This right is
* RCW 9.94A.640(1)(allowing anyone discharged under RCW 9.94A.637 to apply to vacate
their record of conviction),.637(1)(requiring payment of LFOs as a condition ofreceiving a
certificate of discharge).
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)
limited as long as an order to pay LFOs is outstanding. RCW 29A.08.520. For
those with a felony conviction, the right to vote cannot be permanently restored
without a certificate of discharge or a certificate of restoration issued by the
governor.^ Compromising the constitutional right to vote "leav[es] the most
vulnerable without a voice to change the system in which they are entangled."
Simmons, 128 YaleL.J.Forum at 760.
LFOs disproportionately affect disabled people who rely on SSDI. Without
the ability to work, their LFOs will likely persist and continue to negatively affect
their lives. See id. Individuals with lifelong disabilities that prevent them from
working may never be able to pay off their LFOs, resulting in a lifetime of
hearings about ability to pay LFOs and the negative consequences of having a
criminal record. See RCW 9.94A.760(8)(b). "Moreover, while many people with
disabilities already face barriers to employment, stable housing, and other
necessary elements of economic security, adding a criminal record into the mix can
pose additional obstacles that make living with a disability an even greater
challenge." Rebecca Vallas,Ctr.for Am.Progress,Disabled Behind Bars:
The Mass Incarceration of People with Disabilities in America's Jails and
^ RCW 29A.08.520(1)(provisional restoration of right to vote for those with felony conviction if
not under authority of Department of Corrections),(2)(the provisional restoration of the right to
vote can be revoked),(6)(right to vote may be permanently restored with, in relevant part, a
certificate of discharge under RCW 9.94A.637 or a certificate of restoration by the governor
under RCW 9.96.020).
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)
Prisons 3(2016), https://www.americanprogress.org/wp-
content/upIoads/2016/07/1800015 l/2CriminalJusticeDisability-report.pdf
[https://perma.cc/GJ89-T7M8].
"[A] debt must be capable of being paid, if it is not instead a lifetime [yoke]
of servitude." Loretta E. Lynch, U.S. Attorney General, Remarks at White House
Convening on Incarceration and Poverty(Dec. 3, 2015)
(https://www.justice.gov/opa/speech/attomey-general-loretta-e-lynch-delivers-
remarks-white-house-convening-incarceration-and [https://perma.cc/XQ3T-
49PK]). The majority ignores the reality that an imposition of LFOs is an order to
pay LFOs. I respectfully dissent.
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)