Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
66168-0 |
| Title of Case: |
John Woodford Morrison, Et Ano., Appellants V. State Of Wa Dept Of L&i, Respondent |
| File Date: |
03/05/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Snohomish Superior Court |
| Docket No: | 09-2-03377-1 |
| Judgment or order under review |
| Date filed: | 10/20/2010 |
| Judge signing: | Honorable Kenneth L Cowsert |
JUDGES
------
| Authored by | Marlin Appelwick |
| Concurring: | Mary Kay Becker |
| Michael S. Spearman |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | John Woodford Morrison (Appearing Pro Se) |
| | 2100 - 196th St S.w. Unit 110b |
| | Lynnwood, WA, 98036 |
Counsel for Respondent(s) |
| | Anastasia R. Sandstrom |
| | Attorney General's Office |
| | 800 5th Ave Ste 2000 |
| | Seattle, WA, 98104-3188 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
No. 66168-0-I/2
JOHN WOODFORD MORRISON and
WOODFORD ELECTRIC SERVICES, No. 66168-0-I
)
INC.,
)
ORDER GRANTING MOTION
Appellant, TO PUBLISH
)
v.
)
)
STATE OF WASHINGTON
)
DEPARTMENT OF LABOR &
)
INDUSTRIES,
)
Respondent.
)
)
)
)
)
)
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No. 66168-0-I/3
The respondent, State of Washington Department of Labor and
Industries, filed a motion to publish the unpublished opinion filed on March 5,
2012. The appellants, John Morrison and Woodford Electric Services Inc., have
not filed a response. A panel of the court having reconsidered its prior
determination not to publish the opinion filed for the above entitled matter and
finding that it is of precedential value and should be published has determined
that the motion should be granted; now, therefore it is hereby
ORDERED that the written opinion filed March 5, 2012, shall be published
and printed in the Washington Appellate Reports.
DATED this day of May, 2012.
Judge
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No. 66168-0-I/4
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN WOODFORD MORRISON and ) No. 66168-0-I
WOODFORD ELECTRIC SERVICES, )
INC., ) DIVISION ONE
)
Appellant, ) PUBLISHED OPINION
)
v.
)
STATE OF WASHINGTON )
DEPARTMENT OF LABOR &
INDUSTRIES, )
Respondent. ) FILED: March 5, 2012
)
)
)
)
)
Appelwick, J. -- Morrison appeals the superior court order remanding agency
action, arguing that RCW 19.28.131's filing fee provision violates the due
process clause of the state and federal constitutions. Because his interest is
solely an economic one, RCW 19.28.131's monetary prerequisite to an appeal
does not violate his due process rights. We affirm the reduction of the
administrative filing fee and the reinstatement of the appeal contingent upon
payment of that fee, and remand to the trial court for the award of the court filing
fee to Morrison for prevailing below.
FACTS
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No. 66168-0-I/5
In December 2008, the Department of Labor and Industries (Department)
issued John Morrison and Woodford Electrical Services Inc. eight citations for
alleged violations of the electrical law under chapter 19.28 RCW. The violations
occurred on two different dates and the citations totaled $4000. Morrison sent a
letter to the Department to appeal the citations, but he did not include a $200
filing fee to appeal each of the eight citations, as required under RCW
19.28.131. The State of Washington Electrical Board (Board) rejected his
appeal, because the $1600 in filing fees was not included.
Morrison filed a petition for review with the superior court, arguing that the
filing fee requirement denied him due process under the state and federal
constitution. The superior court rejected Morrison's constitutional argument and
concluded that there is a rational basis for requiring the fee payment. It stated,
"The payment by certified check requirement in RCW 19.28.131 does not
infringe on any licensed electrical contractor's or certified electrical
administrator's rights under the state or federal Constitutions." The superior
court also found that the payment of $1600 to secure an appeal of the eight
citations created a financial hardship for Morrison and Woodford Electrical
Services. It waived $1400 of that, requiring Morrison to pay only $200 to appeal
all eight citations. The court set aside the Department's denial of Morrison's
appeal, and remanded it to the Board, contingent upon Morrison following
through with the $200 payment. It did not award costs or attorney fees.
Morrison appeals.
DISCUSSION
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I. Constitutionality of RCW 19.28.131
Morrison argues that the filing fee requirement under RCW 19.28.131
violates his due process rights under the state and federal constitution. That
statute provides for the assessment of penalties in response to violations of the
electrical contractor license law, and it also addresses the appeal of such
penalties:
Any penalty is subject to review by an appeal to the board. The
filing of an appeal stays the effect of the penalty until the board
makes its decision. The appeal shall be filed within twenty days
after notice of the penalty is given to the assessed party using a
method by which the mailing can be tracked or the delivery can be
confirmed, sent to the last known address of the assessed party
and shall be made by filing a written notice of appeal with the
department. The notice shall be accompanied by a certified check
for two hundred dollars, which shall be returned to the assessed
party if the decision of the department is not sustained by the
board. If the board sustains the decision of the department, the
two hundred dollars shall be applied by the department to the
payment of the per diem and expenses of the members of the
board incurred in the matter, and any balance remaining after
payment of per diem and expenses shall be paid into the electrical
license fund.
RCW 19.28.131 (emphasis added).
A statute is presumed to be constitutional, and the party attacking a
statute has the heavy burden of proving its unconstitutionality beyond a
reasonable doubt. State v. Shultz, 138 Wn.2d 638, 642, 980 P.2d 1265 (1999).
A challenge to the constitutionality of a statute is a question of law that we
review de novo. City of Bothell v. Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648
(2011).
Due process is flexible and calls for such procedural protections as the
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No. 66168-0-I/7
particular situation demands. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct.
893, 47 L. Ed.2d 18 (1976). An essential principle of due process is the right to
notice and a meaningful opportunity to be heard. Downey v. Pierce County, 165
Wn. App. 152, 164, 267 P.3d 445 (2011) (citing Cleveland Bd. Of Educ. v.
Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). A
meaningful opportunity to be heard means "'at a meaningful time and in a
meaningful manner.'" Id. at 165 (quoting Mathews, 424 U.S. at 333).
Determining what process is due in a given situation requires consideration of
(1) the private interest involved, (2) the risk that the current procedures will
erroneously deprive a party of that interest, and (3) the governmental interest
involved. Mathews, 424 U.S. at 334-35.
Under the first Mathews factor, the private interest implicated here is
solely an economic, pecuniary one. There is no liberty interest involved. Where
the interest at stake is only a financial one, the right which is threatened is not
considered "fundamental" in a constitutional sense. In re Dep. of Grove, 127
Wn.2d 221, 238, 897 P.2d 1252 (1995). The United States Supreme Court, in
the Boddie line of cases, has found that monetary prerequisites to court access
(e.g., filing fees) are permissible unless the right attempted to be vindicated is
fundamental and the courts provide the only means through which vindication of
such right may be obtained. See Boddie v. Connecticut, 401 U.S. 371, 379-80,
91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); United States v. Kras, 409 U.S. 434, 444-
45, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656,
658-59, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973). Here, the $200 requirement
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No. 66168-0-I/8
under RCW 19.28.131 is a filing fee. If the department's decision is sustained
by the board on appeal, the money goes to the per diem and expenses of the
board related to the matter. Id. And, if the decision is reversed, the money is
returned to the assessed party. Id.
Boddie involved a class of Connecticut welfare recipients attempting to
bring an action for divorce. 401 U.S. at 372. They challenged state procedures,
including payment of certain court fees and costs that restricted their access to
the courts. Id. The Court found these statutorily required filing fees to be
impermissible and inconsistent with the State's obligation under the due process
clause of the Fourteenth Amendment. Id. at 383. But, two years later, in Kras,
the Court limited the reach of Boddie, upholding a similar statutorily imposed
filing fee in bankruptcy matters. 409 U.S. at 444-46. The Kras Court
emphasized that, unlike divorce, the discharge of debts was in the area of
"economics and social welfare". Id. at 446. Accordingly, the filing fees in Kras
did not impact a "fundamental interest" like those addressed in Boddie. Id. at
445. And, Ortwein involved a state court's refusal to waive a $25 appellate court
filing fee in an appeal by indigents for review of a denial of welfare benefits.
Ortwein, 410 U.S. at 658. The U.S. Supreme Court again distinguished Boddie,
and followed Kras. Id. at 659. Recognizing that Boddie applied narrowly to the
fundamental right of marriage, the Court in Ortwein held that the state may
require a fee to obtain review of a denial of welfare benefits. Id. at 659-660.
Thus, where there is no fundamental right involved but only a financial one, it is
permissible to impose a monetary prerequisite to file an appeal.
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No. 66168-0-I/9
In Bowman v. Waldt, 9 Wn. App. 562, 570, 513 P.2d 559 (1973), this
court adopted the reasoning and the holdings from the Boddie line of cases.
The court noted that the majority opinions in Boddie, Kras, and Ortwein are
binding upon us with regard to the due process and equal protection clauses of
the United States Constitution. Id. at 569. And, it also noted that with regards to
due process under the state constitution, the rationale of those same opinions,
"although not binding upon the state courts, [is] nevertheless accorded great
weight. . . . Kras and Ortwein refuse to recognize a constitutional right of access
to the courts if the case is one 'in the area of economics and social welfare.'" Id.
at 570. In the present case, as in Bowman, Kras, and Ortwein, the private
interest at issue is pecuniary and not a fundamental one. Accordingly, we need
not continue the analysis of the other two Mathews factors.
In its statement of additional authority, the Department cites to an opinion
from Division Two of this court, Downey, 165 Wn. App. 152. Downey involved a
challenge by a dog owner of Pierce County's dangerous animal declaration
(DAD) proceedings, including a due process challenge to the County's practice
of charging a fee to obtain an initial evidentiary review of a DAD. Id. at 155-56.
The court held that charging such a fee to obtain review violated due process.
Id. at 156. The private interests involved in Downey were much more expansive
than those involved in Morrison's appeal, including:
(1) [P]et owners' interests in keeping their pets, which is arguably
more than a mere economic interest because pets are not fungible;
(2) economic interests in not having to pay additional annual
registration and inspection fees or acquire significant liability
insurance in order to retain his or her property; and (3) potentially
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No. 66168-0-I/10
being subject to criminal liability for later violations of [Pierce]
County's dangerous animal restrictions.
Id. at 165. Morrison's interest, by contrast, is solely monetary. The Downey
opinion expressly acknowledged that "there is no constitutional due process
right to appeal civil cases involving "only property or financial interests." Id. at
167 (quoting Grove, 127 Wn.2d at 240).
Morrison's interest was solely a financial one, and a monetary
prerequisite to an appeal is thus permissible. We hold that the $200 fees
imposed on Morrison under RCW 19.28.131 do not violate his due process
rights. We affirm.
Morrison also argues the superior court erred by reducing the $1600 filing
fee to $200, contending it had no discretion to reduce the bond. But, as the
Department points out, the superior court's decision to reduce the fee favored
Morrison, and the Department did not appeal this result. Accordingly, Morrison
is not an aggrieved party for the purposes of this argument, and thus may not
seek review by this court. RAP 3.1; see State v. Taylor, 150 Wn.2d 599, 603, 80
P.3d 605 (2003). In any event, Washington courts have applied equity to waive
filing fee amounts, in the interest of justice, where there is financial hardship.
See, e.g., O'Connor v. Matzdorff, 76 Wn.2d 589, 600, 458 P.2d 154 (1969). The
Supreme Court stated, "[C]ourts have found within their powers an inherent
power to waive the prepayment of court fees, where a suitor or defendant has
shown that he is impoverished, regardless of statutory authority. We are also
convinced that such a power is in harmony with the court's duty to see that
justice is done in the cases which come before it." Id. This power is equally
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No. 66168-0-I/11
compelling with respect to fees for administrative appeals. We hold that the
superior court possessed inherent power to reduce the appeal bond amount.
II. Judicial Filing Fee
Finally, Morrison argues the superior court erred by failing to award him
his $200 court filing fee as a recoverable cost below. He contends he was the
prevailing party, based on the court's $1400 reduction of the bond, and on its
order setting aside the Department's denial of the appeal and remanding for
further proceedings. The Department concedes this point, based on RCW
4.84.010, which provides that prevailing parties shall receive their superior court
filing fees. Morrison is entitled to receive his $200 filing fee as the prevailing
party.
We affirm the reduction of the administrative filing fee and the
reinstatement of the appeal contingent upon payment of that fee, and remand to
the trial court for the award of the court filing fee to Morrison for prevailing below.
WE CONCUR:
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