author: Schindler, J.

text:
    In the MATTER OF the MARRIAGE OF Joseph Charles ANTHONY, Appellant, and Penny Lee Anthony, Respondent.
    No. 79065-0-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019 Publication Ordered August 19, 2019
    Jan Yvonne Rinker, Attorney at Law, 9520 Kopachuck Dr. Nw., Gig Harbor, WA, 98335-5913, for Appellant.
    Christine E. Newbry, Laura Elizabeth Yelish, Newbry Law Office, P.L.L.C., 623 Dwight St., Port Orchard, WA, 98366-4619, for Respondent.
    PUBLISHED OPINION
   Schindler, J.

¶1 Joseph Anthony appeals the amount and duration of maintenance awarded to Penny Anthony. Joseph also contends the "Qualified Domestic Relations Order" (QDRO) does not accurately reflect the trial court's decision. The court did not make a finding on the income of the parties, and the court did not address the ability of Joseph to meet his needs and financial obligations while meeting those of Penny or enter written findings on the statutory factors. We affirm the decision to award maintenance. But we remand to determine the amount and duration of maintenance after making a finding on the income of the parties and consideration of the statutory factors. Penny concedes the QDRO is not accurate. On remand, the court shall enter a QDRO that accurately reflects the court's ruling. We also direct the court on remand to address Penny's request on appeal for attorney fees under RCW 26.09.140.

FACTS

¶2 Joseph Anthony and Penny Anthony married on June 19, 1987. Joseph was 24-years-old and Penny was 22-years-old. Penny did not complete the eighth grade and does not have a general education development (GED) certification. During the marriage, Penny stayed home and took care of the four children.

¶3 Joseph served in the Marine Corps from March 27, 1984 until July 31, 2006. Joseph was 43-years-old when he retired from the Marine Corps in 2006. In 2007, Joseph started working at Lynden Transport Incorporated (LTI) as a short-haul truck driver.

¶4 Joseph and Penny separated in August 2012. On July 6, 2015, Joseph filed a petition for dissolution of the marriage. Joseph requested a "fair and equitable division" of the community and separate property and "all debts and liabilities." Joseph agreed "[m]aintenance will be paid" to Penny.

¶5 Joseph and Penny testified at trial. At the time of trial, Joseph was 53-years-old and Penny was 51-years-old. The court admitted a number of exhibits into evidence, including the financial declarations filed by Joseph and Penny and financial documents, including LTI W-2s and pension documentation. In his financial declaration, Joseph states his total gross monthly income is $7,807. He lists monthly wages of $3,504, overtime of $2,086, and military disability of $817. Joseph receives monthly military retirement income of $2,500. In his financial declaration, Joseph allocates $1,400 of the military retirement income to himself and $1,100 to Penny. Joseph imputed $1,600 in income to Penny. Joseph stated his total monthly expenses were $3,995. In her financial declaration, Penny stated she has no income and total monthly expenses of $3,566.

¶6 Joseph testified his financial declaration was accurate and he routinely worked overtime at LTI, earning approximately $2,000 a month. Joseph agreed the LTI W-2s showed his income had increased every year since 2012. Joseph testified he works approximately 15 hours a week in overtime. Joseph said he works that amount of overtime to pay bills and does not want to continue working the same amount of overtime. Joseph testified he could pay $2,500 a month in maintenance to Penny and pay his expenses. Joseph testified the amount in his LTI 401(k) retirement account in 2014 was $26,000.

¶7 Penny testified she receives $3,050 each month from Joseph and $500 a month in rent from her adult son Michael. Penny testified she has no retirement savings and wanted to remain in the family house. Penny testified that she planned to get her GED and then apply for minimum wage jobs.

¶8 The court ruled at the conclusion of the trial. The court considered the statutory factors in dividing the assets and liabilities under RCW 26.09.080. The court awarded Penny the family home. The court determined the equity in the house was $51,000 and awarded Joseph one-half of the equity of $25,500. The court awarded Penny one-half of the military pension and the LTI "pension equity plan" retirement account. The court ruled the award of the retirement accounts would offset Joseph's half of the home equity.

¶9 The court identified and considered the statutory factors under RCW 26.09.090 in awarding maintenance to Penny. The court ruled Penny should receive maintenance for 20 years as follows: $2,500 per month for the first five years, decreased by $500 each of the next five-year periods.

¶10 Joseph filed a motion for clarification of the division of property, the valuation date for the family home and the pensions, and the maintenance award "in relation to the parties' incomes and their portions of the military retirements and the husband's overtime."

¶11 On April 18, 2017, the court entered the decree of dissolution and written findings of fact and conclusions of law. The court awarded the family home to Penny. The court offset Joseph's equity in the house with the LTI retirement account. The court ordered Penny to refinance or sell the house in the next 18 months. Exhibit A, "Real Property," states:

Penny Anthony shall receive the marital home located at 8378 Glennwood Rd. SW, Port Orchard, WA 98367. Tax parcel no.: 222301-2-054-2003. Mr. Anthony shall sign a Quit Claim Deed and Real Estate Excise Tax Affidavit to make this possible.
The [court] accepts the appraisal done by Mr. Mokert and finds that there is $51,000 worth of equity in the family home. Each party shall receive half of the equity in the amount of $25,500 each.
Mr. Anthony's portion of the equity from the home in the amount of $25,500 shall be awarded via an offset of the division of his LTI retirement account. (See Exhibit B re: Division of Retirement Accounts)[.]
Mrs. Anthony has 18 months to refinance the home, or she must put it on the market for sale.

¶12 The court awarded Penny half of the retirement accounts. Exhibit B states, in pertinent part:

2. LTI Retirement Account: Each party is to receive half of the LTI Retirement Account accrued from the date of marriage through November 1, 2016. However, this is subject to an offset to account for Mr. Anthony's portion of the home equity in the amount of $25,500.
To obtain the proper division in the [Qualified Domestic Relations Order] of the LTI Retirement Account, the balance as of November 1, 2016, will be used, and Mr. Anthony's award of $25,500 (his share of the home equity) will remain in the account prior to splitting the remaining funds. The remaining balance in the account will then [be] divided by 2 to split the remainder of the funds equally between the parties.
3. Military Retirement: Mrs. Anthony is awarded her portion of Mr. Anthony's military retirement accrued from June of 1987 until Mr. Anthony's military retirement date, minus his disability payments as they are not subject to division.
4. 401(k) Retirement: Mrs. Anthony is awarded half of the 401(k) accrued from June of 1987 until August of 2012.

¶13 The court awarded Penny maintenance. The findings of fact and conclusions of law state, "Spousal support should be ordered for the following reasons":

1) This was a 25 year long term marriage that was mutually beneficial.
2) Per In re: the Marriage of Rockwell, [141 Wn. App. 235, 170 P.3d 572 (2007),] the Court must put the parties in roughly equal positions post dissolution.
3) Per RCW 26.09.090, the Court must look at the following factors: a) the financial resources of the parties - present and future, b) the time necessary for the requesting spouse to acquire sufficient education or training to find employment, c) the standard of living established during the marriage, d) the duration of the marriage, e) the age as well as physical and emotional condition of each party, as well as the financial obligations of the spouse seeking maintenance, and f) the ability of the spouse from whom maintenance is sought to meet his/her obligations while meeting those of the spouse seeking maintenance.
4) The Court finds that upon examination of the above factors Mrs. Anthony should be awarded spousal support for 20 years, starting at $2,500 per month and decreasing by $500 every 5 years.
5) This award is fair and equitable under the circumstances of this case, Washington statutes and case law.

¶14 The court granted the motion for reconsideration of the award of maintenance in part. The court amended the decree of dissolution to state maintenance "will end when either spouse dies, or the spouse receiving support gets married or registers a new domestic partner." The court entered an amended decree on June 5, 2017.

ANALYSIS

¶15 Joseph seeks reversal of the amount and duration of maintenance. Joseph contends (1) the court based the maintenance award on incorrect income projections and erred in concluding that under In re Marriage of Rockwell, 141 Wash. App. 235, 170 P.3d 572 (2007), "the Court must put the parties in roughly equal positions post dissolution" rather than considering the statutory factors in awarding maintenance to Penny, and (2) the "Qualified Domestic Relations Order" (QDRO) is inconsistent with the court's ruling.

Calculation of Income

¶16 Joseph argues the court based the award of maintenance on inaccurate income projections.

¶17 During the oral ruling on the division of property, the court described a "hypothetical[ ]" calculation of the financial position of the parties postdissolution. In addressing property distribution, the court cited Rockwell "with regards to the just and equitable distribution of property and going beyond, as [Penny's attorney] points out, kind of the post divorce economic circumstances of the parties." The court addressed the parties' "substantial financial disparities in terms of the potential to generate income."

In looking at the issues kind of post divorce and post dissolution, the economic circumstances, it's completely understood that Mr. Anthony likely will be working less and not more. He's 53. He's correct -I think, he provided credible testimony with regards to his job. It is a difficult job. It's - it's taxing both mentally and physically driving a truck. He's 53. As he continues to get older, that will become more and more of an issue. He's certainly entitled to do things outside of work, and so the notion that he would continue to work 60 hours a week - perhaps in the short term ... but in the long term that's not particularly realistic. And I don't think that he's obligated [to] be working 60 hours a week.
....
As I do the math, just I like to do kind of in my own mind kind of hypotheticals and whatnot, although I have real numbers here.
For example, if over the next ten years instead of grossing 115,000 a year, Mr. Anthony were to gross $85,000 a year, so $30,000 less per year because he decides to work less, that still is a total gross income of $850,000 over the next ten years. That would take him to 63, at which point he may be contemplating retirement or whatnot.
If Ms. Anthony - and we will talk about her employment situation - but if she were to work a minimum wage job - well, actually I did $10 an hour, minimum wage will likely increase - but at $10 an hour, full time, over the next ten years that would be $200,000 gross income.
So we're talking about even if Ms. Anthony were to work for ten years at a minimum wage job and Mr. Anthony were to decrease his hours and his gross income were to decrease [$]30,000 a year, we're still talking about over the next ten years a difference of $650,000 of income.
There's no doubt, there's no question that Mr. Anthony is in a far better position to generate income than Ms. Anthony.

¶18 Joseph contends his projected 10-year income is $679,800, not $850,000; and Penny's income would be $383,680, not $200,000. Joseph argues the court deducts $30,000 a year for overtime but erroneously allocates the entire amount of his military pension to him in the hypothetical projections. We agree the hypothetical does not appear to take into account allocation of the pension. But as the court expressly noted, the projection is a hypothetical example and "I have real numbers here." The record shows the court did not base the award of maintenance on the hypothetical projections. But the court did not make a finding on the actual income of the parties. We remand to determine the income for each party for purposes of awarding maintenance. On remand, the court shall determine the income of each party and enter a specific finding on income before considering the statutory factors for maintenance.

Award of Maintenance

¶19 RCW 26.09.090 controls the award of maintenance. The following are the nonexclusive statutory factors under RCW 26.09.090(1) :

(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently ...;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage or domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

¶20 We review a trial court's award of maintenance for abuse of discretion. In re Marriage of Valente, 179 Wash. App. 817, 822, 320 P.3d 115 (2014). The court has broad discretion to award maintenance. In re Marriage of Bulicek, 59 Wash. App. 630, 633, 800 P.2d 394 (1990). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Larson, 178 Wash. App. 133, 138, 313 P.3d 1228 (2013). ¶21 Absent a showing of manifest abuse of discretion, we will not disturb the award of maintenance. In re Marriage of Washburn, 101 Wash.2d 168, 179, 677 P.2d 152 (1984). "The only limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just." Bulicek, 59 Wash. App. at 633, 800 P.2d 394 ; In re Marriage of Wright, 179 Wash. App. 257, 269, 319 P.3d 45 (2013) ; Washburn, 101 Wash.2d at 182, 677 P.2d 152. While the trial court must consider the factors listed in RCW 26.09.090(1), it is not required to make specific factual findings on all of the factors. In re Marriage of Mansour, 126 Wash. App. 1, 16, 106 P.3d 768 (2004). An award of maintenance is "a flexible tool by which the parties' standard of living may be equalized for an appropriate period of time." Washburn, 101 Wash.2d at 179, 677 P.2d 152. Ultimately, the court's main concern must be the parties' economic situations postdissolution. Washburn, 101 Wash.2d at 181, 677 P.2d 152.

¶22 Maintenance not based on a fair consideration of the statutory factors constitutes an abuse of discretion. In re Marriage of Crosetto, 82 Wash. App. 545, 558, 918 P.2d 954 (1996). We treat the trial court's findings of fact as verities on appeal, so long as they are supported by substantial evidence. In re Marriage of Chandola, 180 Wash.2d 632, 642, 327 P.3d 644 (2014). " 'Substantial evidence' is evidence sufficient to persuade a fair-minded person of the truth of the matter asserted." Chandola, 180 Wash.2d at 642, 327 P.3d 644.

¶23 Joseph challenges the conclusion of law that states, "Per In re: the Marriage of Rockwell, ... the Court must put the parties in roughly equal positions post dissolution."

¶24 On reconsideration, Joseph argued the court erred in entering the conclusion of law that states Rockwell requires the court to "put the parties in roughly equal positions post dissolution." Citing Wright, 179 Wash. App. at 262, 319 P.3d 45, Joseph asserted Rockwell does not mandate that the trial court place the parties in "roughly equal financial positions for the rest of their lives" by awarding long-term future maintenance.

¶25 In In re Marriage of Kaplan, 4 Wash. App. 2d 466, 474, 421 P.3d 1046, review denied, 191 Wash.2d 1025, 428 P.3d 1184 (2018), we rejected the argument that our decision in Rockwell means "the trial court must follow the 'overarching premise' that because of their long-term marriage, the parties must be placed in roughly equivalent financial positions for the rest of their lives."

Heidi's argument is based on an overly narrow reading of the statement made by this court in In re Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007), that in long-term marriages of over 25 years "the trial court's objective is to place the parties in roughly equal financial positions for the rest of their lives."
Rockwell affirmed the trial court's unequal distribution of community property after a long-term marriage. The trial court did not, however, limit its consideration to the length of the marriage or conduct a mathematical analysis to ensure equal financial positions for the rest of the parties' lives. Instead, the trial court examined a variety of factors in reaching its decision to award an unequal distribution.

Kaplan, 4 Wash. App. 2d at 474-75, 421 P.3d 1046.

¶26 In Kaplan, we emphasized that duration of marriage is only one of the statutory factors that the trial court must consider. Kaplan, 4 Wash. App. 2d at 476-77, 421 P.3d 1046. We held, "An objective of placing the parties to a long-term marriage in 'roughly equal' financial positions is not a mandate for trial courts .... The trial court must still exercise its discretion to consider all of the statutory factors." Kaplan, 4 Wash. App. 2d at 475-76, 421 P.3d 1046.

¶27 The record does not support the argument that the court relied on Rockwell. At the hearing on the motion for reconsideration, the court clarified that it did not rely on Rockwell and considered only the statutory factors in awarding maintenance:

I don't think it was eloquently put when I said I'm ordering 20 years of maintenance and then I immediately referenced Rockwell.
[ ]
... Rockwell is a property case, not a maintenance case.... I outlined all the factors that one has to look at for distributing property. I also outlined all the factors that one has to look at in determining maintenance.
....
There's no requirement in the statutes or case law that the trial court isolate the determination of maintenance from the property division.

But see Kaplan, 4 Wash. App. 2d at 483, 421 P.3d 1046 (quoting In re Marriage of Estes, 84 Wash. App. 586, 593, 929 P.2d 500 (1997) ) (" '[T]he trial court may properly consider the property division when determining maintenance, and may consider maintenance in making an equitable division of the property.' ").

¶28 Here, unlike in Rockwell, the record shows the court considered the statutory factors in its oral ruling. The court considered Penny's financial circumstances:

Ms. Anthony is the one seeking the support here. At the present time ... her - ability to be employed, in my mind, remains somewhat of a question. She - she has never been - I don't want to make this sound the wrong way. She hasn't had meaningful gainful employment, meaning prolonged periods of time of employment....
... [A]t this point, if she didn't receive any financial support tomorrow, she wouldn't have any ability to meet her needs. And I ... think it goes beyond tomorrow.

The court considered Penny's likelihood of employment. "[P]eople can be employed without a GED, but it really is difficult. So that's something that I think Ms. Anthony can do, and should do, but that doesn't alleviate the need for what I consider to be significant spousal support." The court considered Penny's standard of living. "Just by the very nature of the relationship dissolving, that invariably is going to reduce the standard of living likely for both parties." The court also considered the duration of the marriage, "[W]e have a 25-year marriage and that's significant"; and Penny's age, her physical and emotional condition, and her financial obligations. "We have to be honest that even at 25 or 26 [years old] it's difficult to find gainful employment sometimes, and at 51 it's going to be even more difficult."

¶29 Although the court cites RCW 26.09.090(1)(f), the record shows the court did not address Joseph's ability to pay maintenance or his needs and financial obligations. On remand, the court shall enter written findings on the statutory factors and specifically address Joseph's ability to continue to work overtime and to pay maintenance and meet his needs and financial obligations.

Qualified Domestic Relations Order

¶30 Joseph contends the QDRO does not reflect the trial court's ruling. The court ruled:

Each party is to receive half of the LTI Retirement Account accrued from the date of marriage through November 1, 2016. However, this is subject to an offset to account for Mr. Anthony's portion of the home equity in the amount of $25,500.
To obtain the proper division in the QDRO of the LTI Retirement Account, the balance as of November 1, 2016, will be used, and Mr. Anthony's award of $25,500 (his share of the home equity) will remain in the account prior to splitting the remaining funds. The remaining balance in the account will then [be] divided by 2 to split the remainder of the funds equally between the parties.

¶31 The LTI retirement account was valued at $66,033.08 on November 1, 2016. Joseph and Penny's one-half share would have been $33,016.54 each. Offsetting Joseph's share of the home equity results in the following calculation:

Joseph: $33,016.54 plus $25,500.00 equals $58,516.54
Penny: $33,016.54 minus $25,500.00 equals $7,516.54.

¶32 Penny concedes the QDRO erroneously states she is entitled to $20,266.54, resulting in an overpayment to her by approximately $12,750.00. We remand to enter a QDRO that accurately reflects the court's ruling.

Attorney Fees

¶33 Penny requests attorney fees on appeal under RCW 26.09.140. RCW 26.09.140 gives the court the discretion to award attorney fees. The court must consider the party's relative need versus ability to pay. In re Marriage of Shellenberger, 80 Wash. App. 71, 87, 906 P.2d 968 (1995). On remand, the trial court shall determine whether to award attorney fees to Penny under RCW 26.09.140.

¶34 We affirm the decision to award maintenance but remand to determine the amount and duration of maintenance after making a finding on the income of the parties and consideration of the statutory factors. Because Penny concedes the QDRO is not accurate, on remand, the court shall enter a QDRO that accurately reflects the court's ruling. We also direct the court to address Penny's request for attorney fees under RCW 26.09.140.

WE CONCUR:

Mann, A.C.J.

Appelwick, C.J.

      We refer to the parties by their first names for purposes of clarity and mean no disrespect by doing so.

      The court stated Joseph "earns a significant income" but "it's fair to say that maybe not in the short term but in the long term that's going to be reduced."

      For the first time on appeal, Joseph requests reassignment to a new judge on remand. The remedy of reassignment has limited availability. " '[E]ven where a trial judge has expressed a strong opinion as to the matter appealed, reassignment is generally not available as an appellate remedy if the appellate court's decision effectively limits the trial court's discretion on remand.' " Kaplan, 4 Wash. App. 2d at 487 n.4, 421 P.3d 1046 (quoting State v. McEnroe, 181 Wash.2d 375, 387, 333 P.3d 402 (2014) ). "Only 'where review of facts in the record shows the judge's impartiality might reasonably be questioned' will the appellate court remand the matter to another judge." Kaplan, 4 Wash. App. 2d at 487 n.4, 421 P.3d 1046 (quoting State v. Solis-Diaz, 187 Wash.2d 535, 540, 387 P.3d 703 (2017) ). After reviewing the record in this case, we conclude the trial court's impartiality cannot "reasonably be questioned" and decline to order reassignment on remand.


source: Caselaw Access Project

author: Andrus, J.

license: Public Domain

text:
    J.H., Appellant, v. STATE of Washington, Respondent.
    No. 78735-7-I
    Court of Appeals of Washington, Division 1.
    FILED: July 15, 2019 Publication Ordered August 14, 2019
    Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
    Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, James Otis Thompson, King County Prosecuting Attorney Office, Andrei Nedelcu, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
    PUBLISHED OPINION
   Andrus, J.

¶1 J.H. challenges his 14-day order of commitment under the Involuntary Treatment Act, RCW ch. 71.05. J.H. contends the trial court erred in allowing the State to call a law enforcement witness by video. We affirm.

FACTS

¶2 Sometime after midnight on July 3, 2018, King County Deputy Sheriff Tiffani Bowles-Davis responded to a call of a possible burglary and found J.H., a 36-year-old male, standing in the driveway of a stranger's home. When Bowles-Davis asked J.H. to leave the property, a visibly agitated J.H. walked to the middle of an adjacent street, a three-lane road, and stepped into oncoming traffic as vehicles approached. Bowles-Davis and her partner used their flashlights to slow or stop vehicles to avoid hitting J.H. The officers were concerned for his safety because he was not wearing reflective clothing and he would not respond to their request to get out of the roadway. At times during their interaction with J.H., he seemed cooperative but then clenched his fist at Bowles-Davis and stated, "[J]ust shoot me right now." Bowles-Davis concluded J.H. did not have "the mental capacity of just a normal individual."

¶3 The officers involuntarily detained J.H. and sent him to Highline Hospital for a mental evaluation. J.H. was evaluated by Community Psychiatric Clinic Case Manager Alexander Klee and detained for 72 hours.

¶4 On July 6, 2018, Fairfax Hospital filed a petition for 14 days of involuntary treatment, alleging J.H. suffered from a mental disorder that rendered him gravely disabled. On July 9, 2018, the trial court conducted the probable cause hearing. J.H. and his attorney participated in the hearing by television link from Fairfax Hospital. The State called two witnesses, Bowles-Davis, who testified remotely via video, and Corbi Griffith, a Fairfax Hospital mental health counselor.

¶5 Before the hearing began, J.H. objected to having Bowles-Davis appear via video. He argued that the State had not demonstrated good cause under compelling circumstances, the CR 43 standard for permitting video testimony of witnesses. The court permitted the video testimony, reasoning that CR 43 's good cause standard did not apply to ITA hearings because RCW 71.05.020(24) expressly permits video testimony in these proceedings.

¶6 At the conclusion of the hearing, the trial court found that J.H. suffered from a mental impairment that rendered him gravely disabled. The court found Bowles-Davis credible and, based on her testimony, found that J.H. put himself in an unsafe position on the road and, had the officers not been present to flash their lights and ward off cars, he would likely have been seriously injured. The trial court entered an order of commitment for up to 14 days of inpatient treatment. J.H. appeals.

ANALYSIS

¶7 The sole issue on appeal is whether the trial court erred in concluding that the "good cause in compelling circumstances" standard of CR 43 does not apply to ITA civil commitment proceedings by virtue of RCW 71.05.020(24). Because the issue involves the interpretation of a civil rule and a statute, our review is de novo. Nevers v. Fireside, Inc., 133 Wash.2d 804, 809, 947 P.2d 721 (1997).

¶8 CR 43(a)(1) provides:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.

Under the ITA, if a facility files a petition for 14 days of involuntary treatment, the court must hold a "probable cause hearing" within 72 hours of the person's initial detention. RCW 71.05.240(1). During the ITA "hearing:"

... the petitioner, the respondent, the witnesses, and the presiding judicial officer may be present and participate either in person or by video, as determined by the court. The term "video" as used herein shall include any functional equivalent. ... Witnesses in a proceeding may also appear in court through other means, including telephonically, pursuant to the requirements of superior court civil rule 43.

RCW 71.05.020(24). J.H. contends that RCW 71.05.020(24) should be construed as requiring a showing of "good cause" before a witness may appear by video. We reject this argument as inconsistent with the plain language of the ITA statute. RCW 71.05.020(24) contains no "good cause" requirement for video appearances. In fact, the sentence invoking CR 43 does so only for witnesses who wish to appear "through other means," such as by telephone. The unambiguous language of RCW 71.05.020(24) makes CR 43 applicable only when the remote appearance is not by video.

¶9 Moreover, the statute explicitly provides that on a showing of "good cause," the court may require any party or witness to appear in person. This statutory framework presumes participation by video; in-person appearances are presumed to be the exception, not the rule. Given that CR 43(a)(1) presumes in-person testimony, the Legislature clearly intended to set out a process for video testimony that is different than that contemplated by court rule.

¶10 Although the ITA statute gives the trial court the discretion to decide whether and when to conduct any ITA hearing by video, that discretion is not unfettered. The statute imposes a set of safeguards not explicitly provided for in CR 43 :

At any hearing conducted by video, the technology used must permit the judicial officer, counsel, all parties, and the witnesses to be able to see, hear, and speak, when authorized, during the hearing; to allow attorneys to use exhibits or other materials during the hearing; and to allow respondent's counsel to be in the same location as the respondent unless otherwise requested by the respondent or the respondent's counsel.

RCW 71.05.020(24). And it permits the court to consider, when evaluating a motion for in-person testimony, whether a respondent's alleged mental illness interferes with his or her ability to participate by video. These additional safeguards further demonstrate the legislative intent that CR 43(a)(1) not apply to ITA hearings.

¶11 We conclude, from the text and context of RCW 71.05.020(24), that the ITA statute does not require a showing of "good cause under compelling circumstances" before the trial court may permit a witness to appear by video.

¶12 J.H. next argues that if we conclude that the ITA statute and CR 43 are inconsistent, the civil rule must prevail to avoid a separation of powers violation. Under State v. Gresham, 173 Wash.2d 405, 428-29, 269 P.3d 207 (2012), if there are irreconcilable conflicts between court rules and legislative rules, court rules prevail in procedural matters and statutes prevail in substantive ones. But we conclude there is no separation of powers issue at play here. CR 43(a)(1) explicitly contemplates that other rules or statutes may exist that limit its applicability. The rule provides that it governs unless "otherwise ... provided by rule or statute." In this case, we have a statute that provides for a process not contemplated by CR 43(a)(1) and CR 43 explicitly allows this statutory abrogation.

¶13 We conclude that RCW 71.05.020(24) does not require a showing of good cause before a trial court may permit a witness to testify by video at an ITA hearing. We also conclude there is no separation of powers violation because CR 43(a)(1) expressly limits its applicability to situations in which no statutory provision applies. The trial court did not err in allowing Bowles-Davis to testify at J.H.'s ITA hearing by video.

¶14 Affirmed.

WE CONCUR:

Leach, J.

Mann, A.C.J.

      Under King County Local Mental Proceeding Rule (LMPR) 1.8(b), certain authorized facilities conduct all ITA hearings via this video link. Pursuant to the July 23, 2018 General Order Authorizing Video Hearings for Involuntary Treatment Act Proceedings , Fairfax Hospital is one of these authorized hospitals.

      This court requested additional briefing from the parties on what impact, if any, CR 81 has on this appeal. That rule provides that the civil rules apply to all civil proceedings, "[e]xcept where inconsistent with rules or statutes applicable to special proceedings." No court has yet held that ITA proceedings are "special proceedings" within the meaning of CR 81. Both parties argue CR 81 should not impact the outcome of this appeal. We will therefore save for another day the issue of whether CR 81 renders CR 43 inapplicable to ITA hearings.


author: Cruser, J.

text:
    STATE of Washington, Respondent, v. Anthony Glen HOUCK, Appellant.
    No. 51201-7-II
    Court of Appeals of Washington, Division 2.
    Filed August 6, 2019
    Sara Sofia Taboada, Travis Stearns, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.
    Britta Ann Halverson, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.
    PUBLISHED OPINION
   Cruser, J.

¶1 Anthony Houck appeals the trial court's imposition of two community custody conditions and certain legal financial obligations (LFOs) following his convictions for unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver. Houck argues that the trial court abused its discretion when it imposed a condition of community custody that prohibited him from associating with known drug users and sellers and erred by imposing a condition of community custody that prohibited possession or consumption of medical marijuana under the Medical Use of Cannabis Act, ch. 69.51A RCW. Houck also challenges the trial court's imposition of LFOs and interest provision.

¶2 We hold that the trial court's imposition of community custody conditions was proper, but that the $200 criminal filing fee and interest provision must be stricken. We also hold that the State bears the burden of demonstrating that Houck's deoxyribonucleic acid (DNA) has not previously been collected and remand for the trial court to consider whether the DNA collection fee should be imposed. Accordingly, we affirm in part and remand for further proceedings.

FACTS

¶3 A jury convicted Anthony Houck of unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver. The trial court sentenced Houck to a term of confinement and community custody. The trial court imposed the following relevant community custody conditions:

(B) While on community placement or community custody, the defendant shall: ... (4) not consume controlled substances except pursuant to lawfully issued prescriptions; ....
....
[x] have no contact with known drug users/sellers except in [treatment] setting.

Clerk's Papers (CP) at 152.

¶4 As a part of Houck's sentence, the trial court ordered Houck to pay the $500 crime victim penalty assessment, $200 criminal filing fee, and $100 DNA collection fee. The trial court waived interest on all fees until 90 days following his release from custody.

¶5 Houck appeals the trial court's imposition of the aforementioned community custody conditions, the criminal filing fee, the DNA collection fee, and the interest provision.

ANALYSIS

I. COMMUNITY CUSTODY CONDITIONS

¶6 Houck challenges the community custody conditions prohibiting him from association with known drug users and sellers and prohibiting him from consuming controlled substances except pursuant to lawfully issued prescriptions. Houck argues that the condition prohibiting association with known drug users and sellers is unconstitutionally vague. He further argues that the trial court did not have lawful authority to impose the condition prohibiting him from consuming controlled substances except pursuant to lawfully issued prescriptions because the condition subjects him to criminal sanctions if he possesses or consumes marijuana for medical purposes in violation of the Medical Use of Cannabis Act. We disagree.

A. LEGAL PRINCIPLES

¶7 When a prison term is imposed for a felony drug offense, a sentencing court must impose an additional term of community custody. RCW 9.94A.701(3)(c). "Washington sentencing courts are required to impose certain community custody conditions in specified circumstances and may impose others." State v. Bahl , 164 Wash.2d 739, 744, 193 P.3d 678 (2008) ; RCW 9.94A.703.

¶8 RCW 9.94A.703 prescribes community custody conditions that are mandatory, waivable, or discretionary. A court may impose a condition requiring an offender to refrain from direct or indirect contact with a specified class of individuals. RCW 9.94A.703(3)(b). Unless specifically waived by the court, the court must order an offender to refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions as part of any term of community custody. RCW 9.94A.703(2)(c).

B. ASSOCIATION WITH KNOWN DRUG USERS AND SELLERS

¶9 Houck argues that the community custody condition barring him from associating with known drug users and sellers is unconstitutionally vague.

1. Standard of Review and Principles of Law

¶10 The due process vagueness doctrine requires that citizens have fair warning of proscribed behavior. U.S. CONST. amend. XIV ; WASH. CONST. art. I, § 3 ; Bahl , 164 Wash.2d at 752, 193 P.3d 678. A community custody condition that does not provide fair warning is unconstitutionally vague. Id . at 753, 193 P.3d 678. A community custody condition does not provide fair warning if (1) "it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition" or (2) "it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement." State v. Padilla , 190 Wash.2d 672, 677, 416 P.3d 712 (2018).

¶11 A community custody condition is valid if a person of ordinary intelligence can understand what behavior a condition forbids, given the context in which its terms are used. State v. Hai Minh Nguyen , 191 Wash.2d 671, 679, 425 P.3d 847 (2018). A sufficiently clear condition can survive a vagueness challenge " 'notwithstanding some possible areas of disagreement.' " Bahl , 164 Wash.2d at 754, 193 P.3d 678 (quoting Spokane v. Douglass , 115 Wash.2d 171, 179, 795 P.2d 693 (1990) ). Additionally, it is not necessary that a condition provide " 'complete certainty the exact point at which his actions would be classified as prohibited conduct.' " Padilla , 190 Wash.2d at 677, 416 P.3d 712 (internal quotation marks omitted) (quoting State v. Sanchez Valencia , 169 Wash.2d 782, 793, 239 P.3d 1059 (2010) ).

¶12 We review a community custody condition for abuse of discretion and will reverse only if the condition is manifestly unreasonable. Sanchez Valencia , 169 Wash.2d at 791-92, 239 P.3d 1059. A trial court necessarily abuses its discretion by imposing an unconstitutionally vague community custody condition. Padilla , 190 Wash.2d at 677, 416 P.3d 712. We do not presume that a community custody condition is constitutional. Sanchez Valencia , 169 Wash.2d at 793, 239 P.3d 1059.

2. "Known" Drug Users and Sellers

¶13 Houck argues that the community custody condition that prohibits him from "associating with 'known drug users/sellers, except in treatment settings' " is unconstitutionally vague because it is unclear who must have knowledge that a person is a "known" drug user or seller.

Appellant's Opening Br. at 6-8. Houck contends that because it is unclear who must have the knowledge that a person is a "known" drug user or seller, the condition is subject to arbitrary enforcement.

¶14 Houck relies on State v. Irwin , 191 Wash. App. 644, 364 P.3d 830 (2015), which held that a community custody condition that prohibits "frequenting areas where minor children are known to congregate, as defined by the supervising CCO" is unconditionally vague. Id . at 652, 655, 364 P.3d 830. First, the court concluded that areas where " 'children are known to congregate' " is sufficiently broad to require clarification. Id. at 654, 364 P.3d 830. The number of possible places where children may congregate, such as " 'public parks, bowling alleys, shopping malls, theaters, churches, [and] hiking trails' " is so extensive and wide ranging that an ordinary person may not know what places to avoid. See Id. at 654, 364 P.3d 830. Second, a condition that explicitly requires further definitions from community corrections officers (CCOs) leaves the condition vulnerable to arbitrary enforcement. Id. at 655, 364 P.3d 830. Therefore, the court held that the condition failed under both prongs of the vagueness doctrine. Id .

¶15 But Division One of this court recently held that a community custody provision that prohibits offenders from associating with known " 'users or sellers of illegal drugs' " is not unconstitutionally vague. In re Pers. Restraint of Brettell , 6 Wash. App. 2d 161, 169, 430 P.3d 677 (2018). The Brettell court relied on United States v. Vega , 545 F.3d 743, 749 (9th Cir. 2008), where the Ninth Circuit rejected a vagueness challenge to a similar condition that prohibited the offender from associating " 'with any member of any criminal street gang.' " 6 Wash. App. 2d at 170. The Vega court acknowledged that " 'incidental contacts'-such as those [an offender would] fear he would be punished for inadvertently engaging in-do not constitute 'association.' " 545 F.3d at 746 (quoting United States v. Soltero , 510 F.3d 858, 866-67 (9th Cir. 2007) ). The Vega court held that the condition was constitutional but that the condition could be improved by adding the term "known" to limit its reach to people known by the defendant to be gang members. Brettell , 6 Wash. App. 2d at 170 (citing 545 F.3d at 749-50 ).

¶16 We agree with Brettell . Here, the condition prohibiting association "with known drug users/sellers" is not unconstitutionally vague. CP at 152. The condition does not explicitly require further definition or clarification from a CCO and the terms "known drug users/sellers" effectively notify a person of ordinary intelligence who needs to be avoided. CP at 152. The term "known" qualifies that the condition prohibits the offender's knowing contact with drug users and sellers. Brettell , 6 Wash. App. 2d at 170 ; Vega , 545 F.3d at 749-50. By limiting the condition's reach to those known by the offender, the condition provides fair warning of proscribed conduct and meaningful guidance to protect against arbitrary enforcement.

¶17 Accordingly, we hold that the trial court properly exercised its discretion by prohibiting Houck from associating with known drug users and sellers during his term of community custody because the condition is not unconstitutionally vague.

C. MARIJUANA CONDITION

¶18 Houck next argues that the trial court exceeded its statutory authority when it imposed the community custody condition prohibiting Houck from possessing or consuming medical marijuana because the Medical Use of Cannabis Act "(1) divest courts of any authority to impose conditions of community custody or probation that can subject a qualified medical marijuana user to criminal sanctions; and (2) directs supervising entities, like the [DOC], to establish a procedure before imposing a condition of community custody or probation that prohibits a qualified patient from using medical marijuana." Appellant's Opening Br. at 12-13. He bases this argument on public policy and three canons of statutory interpretation: expressio unius est exclusio alterius, noscitur a socis, and edjusdem generis, each of which we discuss below.

1. Standard of Review and Principles of Law

¶19 A trial court lacks authority to impose a community custody condition unless authorized by the legislature. State v. Warnock , 174 Wash. App. 608, 611, 299 P.3d 1173 (2013). We review a trial court's statutory authority to impose a particular community custody condition de novo. State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007).

¶20 RCW 9.94A.703 states as follows:

When a court sentences a person to a term of community custody, the court shall impose conditions of community custody as provided in this section.
....
(2) Waivable conditions . Unless waived by the court, as part of any term of community custody, the court shall order an offender to:
....
(c) Refrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions.

(Emphasis added.) The definition of "controlled substance" is "a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules." Former RCW 69.50.101(2)(d) (2013). Marijuana is listed as a schedule I controlled substance. RCW 69.50.204(c)(22).

¶21 The Medical Use of Cannabis Act did not implicitly or explicitly repeal the statutory classification of marijuana as a schedule I controlled substance. State v. Atchley , 142 Wash. App. 147, 164-65, 173 P.3d 323 (2007) ; State v. Hanson , 138 Wash. App. 322, 330, 157 P.3d 438 (2007). Doctors are prohibited from issuing prescriptions for medical marijuana and are merely allowed to issue an "authorization" for medical marijuana use. Former RCW 69.51A.030(2)(a) (2011); former RCW 69.50.308 (2013).

2. Statutory Interpretation

¶22 Houck points out that former " RCW 69.51A.005(2)(b) [ (2011) ] explicitly states that the legislature intended for 'qualifying patients' who benefit from marijuana to not be subject to arrest, prosecution, or other criminal sanctions based on their use of medical marijuana" and argues that former RCW 69.51A.040 (2011) "reaffirms that such qualified patients are insulated from criminal consequences for their use of medical marijuana." Appellant's Opening Br. at 10-11. However, he concedes that both former RCW 69.51A.005(4) (2011) and RCW 69.51A.055(1) limit this protection. The statutes provide in relevant part,

The arrest and prosecution protections established in RCW 69.51A.040 may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision.

RCW 69.51A.055(1)(a).

Nothing in this chapter diminishes the authority of correctional agencies and departments, including local governments or jails, to establish a procedure for determining when the use of cannabis would impact community safety or the effective supervision of those on active supervision for a criminal conviction, nor does it create the right to any accommodation of any medical use of cannabis in any correctional facility or jail.

Former RCW 69.51A.005(4).

¶23 Houck argues that these provisions divest courts of any authority to impose community custody conditions that subject a qualified medical marijuana user to criminal sanctions, and direct supervising entities, like the DOC, to establish a procedure before imposing a condition of community custody that prohibits a qualified patient from using medical marijuana.

¶24 First, Houck relies on "expressio unius est exclusion alterius," which means that the "Legislative inclusion of certain items in a category implies that other items in that category [were] intended to be excluded." Bour v. Johnson , 122 Wash.2d 829, 836, 864 P.2d 380 (1993). He suggests that we must presume that the legislature's omission of the term "court" in former RCW 69.51A.005(4) and RCW 69.51A.055(1)(a) was deliberate, and therefore courts do not possess the authority to impose a condition of community custody that can subject a medical marijuana user to criminal sanctions for their use of medical marijuana in conformity with former RCW 69.51A.040.

¶25 Second, Houck relies on noscitur a socis. Noscitur a socis "provides that a single word in a statute should not be read in isolation, and that 'the meaning of words may be indicated or controlled by those with which they are associated.' " State v. Roggenkamp , 153 Wash.2d 614, 623, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. Jackson , 137 Wash.2d 712, 729, 976 P.2d 1229 (1999) ).

¶26 Finally, Houck relies on edjusdem generis, which provides that " '[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding words.' " Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler , 537 U.S. 371, 384, 123 S. Ct. 1017, 154 L. Ed. 2d 972 (2003) (internal quotation marks omitted) (quoting Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 114-15, 121 S. Ct. 1302, 149 L. Ed. 2d 234 (2001) ). Houck argues that the term " 'local government' " should be read narrowly to mean something similar to the other words associated with the term, namely, " 'correctional agencies' " and " 'jails.' " Appellant's Opening Br. at 17.

¶27 Houck's arguments rely on the assumption that former RCW 69.51A.005(4) and RCW 69.51A.055(1)(a) create an exhaustive list of which agencies or departments can impose community custody conditions regarding controlled substances. However, the language of the statutes indicate otherwise. "Nothing in this chapter diminishes the authority of correctional agencies and departments, including local governments or jails, to establish a procedure for ... the effective supervision of those on active supervision for a criminal conviction." Former RCW 69.51A.005(4) (emphasis added). "The arrest and prosecution protections established in RCW 69.51A.040 may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails." RCW 69.51A.055(1)(a) (emphasis added). The statutes on which Houck relies apply to establishing procedures for "effective supervision" and to "supervision revocation or violation hearing[s]." Former RCW 69.51A.005(4) ; RCW 69.51A.055(1)(a). The imposition of community custody conditions fit into neither of these categories.

¶28 Houck also argues that RCW 69.51A.055(1)(a) grants supervising entities, not courts, exclusive authority to restrict medical marijuana use. However, a supervising entity has the authority to execute only the court-imposed sentence by supervising offenders on the basis of conditions imposed by the court. RCW 9.94A.030(4), .704(2)(b). Furthermore, the DOC may exercise its authority only by imposing an additional community custody condition when it does not interfere or contradict conditions imposed by the court. RCW 9.94A.704(6). Therefore, although such agencies or departments may have authority to impose community custody conditions regarding controlled substances, their authority is limited by conditions imposed by the trial court.

¶29 Houck's argument also implies that the Medical Use of Cannabis Act supersedes RCW 9.94A.703. We disagree. A court is required to impose the following condition unless it exercises its discretion to waive it: an offender must "[r]efrain from possessing or consuming controlled substances except pursuant to lawfully issued prescriptions." RCW 9.94A.703(2)(c). As noted above, the Medical Use of Cannabis Act did not implicitly or explicitly repeal the statutory classification of marijuana as a schedule I controlled substance. Atchley , 142 Wash. App. at 164-65, 173 P.3d 323 ; Hanson , 138 Wash. App. at 330, 157 P.3d 438. We conclude that the Act also does not supersede community custody conditions that trial courts "shall order" under RCW 9.94A.703(2). Therefore, we hold that Houck's argument fails and affirm the community custody condition.

II. LEGAL FINANCIAL OBLIGATIONS

¶30 The trial court ordered Houck to pay mandatory LFOs in the form of a $500 crime victim penalty assessment, a $200 criminal filing fee, and a $100 DNA collection fee. The trial court also ordered Houck to pay interest on his nonrestitution LFOs. Houck challenges the imposition of the $200 criminal filing fee and the $100 DNA collection fee, as well as the imposition of interest, on the basis that the trial court failed to consider his ability to pay those fees as required by RCW 9.94A.777(1) and based on recent statutory amendments that apply to his case.

¶31 The State concedes that the $200 criminal filing fee and the interest provision should be stricken from Houck's judgment and sentence, but the State maintains that the imposition of the DNA collection fee was proper because Houck failed to prove that the State has previously collected his DNA. See RCW 43.43.7541.

¶32 The legislature recently amended former RCW 36.18.020(2)(h) to prohibit the superior courts from imposing the $200 criminal filing fee and interest on the nonrestitution portions of LFOs on defendants found indigent under RCW 10.101.010(3)(a) through (c). LAWS OF 2018, ch. 269, § 17; RCW 36.18.020(2)(h) ; State v. Ramirez , 191 Wash.2d 732, 746, 426 P.3d 714 (2018). These statutory amendments apply to any case not yet final at the time of their passage. Ramirez , 191 Wash.2d at 747, 426 P.3d 714. Because the trial court found Houck to be indigent, we accept the State's concession and agree that the $200 criminal filing fee and imposition of interest should be stricken.

¶33 But we do not agree with the State's contention that the DNA collection fee was properly imposed. The State argues that we should not strike Houck's DNA collection fee because Houck fails to show that the State previously collected his DNA. A DNA collection fee is mandatory "unless the state has previously collected the offender's DNA as a result of a prior conviction." RCW 43.43.7541 (emphasis added); Ramirez , 191 Wash.2d at 747, 426 P.3d 714 ; State v. Catling , 193 Wash.2d 252, 257-58, 438 P.3d 1174 (2019). RCW 43.43.7541 requires the collection of a DNA sample from every adult or juvenile convicted of a felony. Houck has a prior felony conviction, but the record on appeal is silent as to whether the State previously collected his DNA. If such collection occurred, the trial court's imposition of the DNA collection fee was improper.

¶34 We remand to the trial court to determine whether the State has previously collected a DNA sample from Houck. The trial court, on remand, shall strike the DNA collection fee unless the State demonstrates that Houck's DNA has not been collected.

¶35 Houck also contends that the trial court failed to inquire whether he had the means to pay LFOs based on his mental condition, relying on our opinion in State v. Tedder , 194 Wash. App. 753, 378 P.3d 246 (2016). At sentencing, Houck presented evidence that he suffers from chronic and severe mental health disorders. Before imposing any LFO, excluding restitution and the victim penalty assessment, the trial court must determine whether a defendant who suffers from a mental health condition has the ability to pay the obligations. RCW 9.94A.777(1) ; Tedder , 194 Wash. App. at 756-57, 378 P.3d 246. A defendant suffers from a mental health condition when the defendant has been diagnosed with a mental disorder that prevents him from participating in gainful employment. RCW 9.94A.777(2). Based on the evidence Houck presented at sentencing, the trial court was required to consider, under RCW 9.94A.777(1), whether Houck has the means to pay LFOs. Because the trial court did not consider evidence of Houck's mental conditions before imposing LFOs, we hold that the trial court abused its discretion.

¶36 On remand, if the trial court finds that the State has not previously collected Houck's DNA, the trial court must then consider whether the DNA collection fee should be waived after performing the necessary inquiry under RCW 9.94A.777.

CONCLUSION

¶37 We affirm the trial court's imposition of a community custody condition that prohibits Houck from associating with known drug users and sellers during his term of community custody. We hold that the trial court had statutory authority to impose a community custody condition prohibiting Houck from possessing or consuming medical marijuana under the Medical Use of Cannabis Act during his term of community custody and affirm the condition. Finally, we remand to the trial court to strike the $200 criminal filing fee and interest provision and to reconsider the imposition of DNA collection fee consistent with this opinion.

We concur:

WORSWICK, J.

LEE, A.C.J.

      RCW 9.94A.701(3)(c) states that a court shall sentence an offender to community custody for one year when the court sentences the person to the custody of the Department of Corrections (DOC) for a felony offense under ch. 69.50 or 69.52 RCW. Houck's offenses include two felony offenses under RCW 69.50.401(1) and (2)(b).

      During a period of court-ordered community custody, an offender is under the supervision of the DOC. RCW 9.94A.704(1). The DOC, through its CCOs, are responsible for the supervision of sentenced offenders and monitoring sentence conditions. RCW 9.94A.030(4).

      Because the Medical Use of Cannabis Act and the Sentencing Reform Act of 1981, ch. 9.94A RCW, can be harmonized, we do not reach Houck's rule of lenity or public policy arguments.

      At oral argument, the parties disagreed about who should bear the burden of demonstrating whether a defendant's DNA has previously been collected when the defendant has a prior Washington felony conviction. The State urged us to hold it is the defendant's burden to demonstrate that the State has not previously collected his DNA. We disagree and hold that when a defendant has a prior Washington felony conviction, the State must show that the defendant's DNA has not previously been collected. See State v. Van Wolvelaere , 8 Wash. App. 2d 705, 440 P.3d 1005, 1007 (2019) (holding that the defendant's prior Washington State felony convictions give rise to a presumption that the State previously collected a DNA sample from the defendant).


author: Smith, J.

text:
    Todd MCLAUGHLIN, a Washington resident, Appellant, v. TRAVELERS COMMERCIAL INSURANCE COMPANY, a foreign corporation, Respondent.
    No. 78534-6-I
    Court of Appeals of Washington, Division 1.
    FILED: August 12, 2019
    Robert Craig Levin, Washington Bike Law, 705 2nd Ave. Ste. 1000, Seattle, WA, 98104-1758, Philip Albert Talmadge, Aaron Paul Orheim, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, for Appellant.
    Thomas Lether, Eric Jay Neal, Jenna Renee Mark, Lether & Associates, PLLC, 1848 Westlake Ave. N Ste. 100, Seattle, WA, 98109-8801, Julia Norwood, Ogden Murphy Wallace, 901 5th Ave. Ste. 3500, Seattle, WA, 98164-2059, for Respondent.
    Ian S. Birk, Keller Rohrback, LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, for Amicus Curiae on behalf of United Policy Holders.
    PUBLISHED OPINION
   Smith, J.

¶1 Todd McLaughlin appeals the trial court's dismissal of his lawsuit against his insurer, Travelers Commercial Insurance Company. McLaughlin was injured after he struck an open car door while riding his bicycle. McLaughlin's personal injury protection (PIP) policy covers injuries to a "pedestrian" but does not define that term. Because we must give an undefined term in an insurance policy its plain, ordinary, and common meaning and because the dictionary definition of "pedestrian" excludes bicyclists, we hold that McLaughlin was not a pedestrian at the time of his injury and therefore not entitled to PIP benefits. Additionally, we reject McLaughlin's contention that a definition of "pedestrian" in Washington's Insurance Code, Title 48 RCW, requires that a bicyclist is a pedestrian under his policy. Accordingly, we affirm.

FACTS

¶2 On July 31, 2017, McLaughlin was injured while riding his bicycle on Westlake Avenue in Seattle. Daniel Moore, who was parked on the street, did not see McLaughlin approach and opened his driver's side door, striking McLaughlin.

¶3 At the time of the accident, McLaughlin was covered by a California Personal Auto policy from Travelers. The policy provided PIP benefits of up to $5,000 in medical expenses sustained by an "insured." The term "insured" was defined in relevant part as "a pedestrian when struck by" a motor vehicle. The term "pedestrian" was not defined. ¶4 McLaughlin sought coverage for his medical expenses under the policy. Travelers denied coverage, finding that McLaughlin was not a pedestrian because he was riding his bicycle at the time of the accident. McLaughlin sued Travelers for breach of contract and other related theories based on its denial of coverage. Both McLaughlin and Travelers moved for summary judgment on the breach of contract claim. The trial court concluded that the ordinary and common meaning of the term "pedestrian" does not include a bicyclist. It therefore granted Travelers's motion for summary judgment and denied McLaughlin's motion for summary judgment. McLaughlin appeals.

ANALYSIS

¶5 McLaughlin argues that because the ordinary meaning of "pedestrian" includes a bicyclist, the trial court erred in granting summary judgment to Travelers. We disagree.

¶6 " 'This court reviews summary judgment determinations de novo, engaging in the same inquiry as the trial court.' " Kut Suen Lui v. Essex Ins. Co., 185 Wash.2d 703, 709-10, 375 P.3d 596 (2016) (quoting Durland v. San Juan County, 182 Wash.2d 55, 69, 340 P.3d 191 (2014) ). " 'Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.' " Kut Suen Lui, 185 Wash.2d at 710, 375 P.3d 596 (quoting Durland, 182 Wash.2d at 69, 340 P.3d 191 ). "Courts interpret language in an insurance policy as a matter of law," and this court reviews those interpretations de novo. Kut Suen Lui, 185 Wash.2d at 710, 375 P.3d 596. As the insured, McLaughlin bears the burden to prove that he was entitled to coverage under the policy. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wash.2d 901, 906, 726 P.2d 439 (1986).

¶7 Courts construe insurance policies as contracts. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d 654, 665, 15 P.3d 115 (2000). When the court interprets an insurance policy, it considers the insurance policy as a whole, giving the policy " 'a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.' " Quadrant Corp. v. Am. States Ins. Co., 154 Wash.2d 165, 171, 110 P.3d 733 (2005) (quoting Weyerhaeuser, 142 Wash.2d at 666, 15 P.3d 115 ). "Undefined terms in an insurance contract must be given their 'plain, ordinary, and popular' meaning." Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wash.2d 869, 877, 784 P.2d 507 (1990) (quoting Farmers Ins. Co. of Wash. v. Miller, 87 Wash.2d 70, 73, 549 P.2d 9 (1976) ). "To determine the ordinary meaning of an undefined term, our courts look to standard English language dictionaries." Boeing, 113 Wash.2d at 877, 784 P.2d 507.

¶8 Here, McLaughlin's policy covers "reasonable expenses incurred for necessary medical and funeral services because of 'bodily injury': 1. Caused by an accident; and 2. Sustained by an 'insured.' " The policy defines an "insured" as:

1. You or any "resident relative":
a. While "occupying"; or
b. As a pedestrian when struck by;
a motor vehicle designed for use mainly on public roads or a trailer of any type.

¶9 The term "pedestrian" is not defined in the policy. Therefore, we look to the dictionary definition of "pedestrian" to determine its plain, ordinary, and popular meaning. Webster's Third New International Dictionary defines "pedestrian" as "a person who travels on foot: WALKER : as a : one who walks for pleasure, sport, or exercise : HIKER ... b : one walking as distinguished from one travelling by car or cycle." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1664 (2002).

¶10 The plain, ordinary meaning of "pedestrian," as defined by the dictionary, defeats McLaughlin's argument. Based on this definition, a pedestrian is distinct from a bicyclist, who travels by cycle. Therefore, the trial court did not err in concluding that McLaughlin was not an insured under the policy and that Travelers was entitled to summary judgment.

¶11 Both McLaughlin and Travelers agree that there is no conflict of law when the dictionary definition of "pedestrian" is used. But McLaughlin argues that the definition of "pedestrian" in RCW 48.22.005(11), which is part of Washington's Insurance Code, is automatically incorporated into the policy and includes a bicyclist. In its amicus curiae brief, United Policyholders also asserts that RCW 48.22.005(11) applies here. But none of the authority cited by McLaughlin mandates that the plain meaning of an undefined term in an insurance policy be displaced if there is a definition of the same term in an insurance statute. Rather, they stand for the general proposition that insurance policies cannot violate applicable statutes. See Ringstad v. Metro. Life Ins. Co., 182 Wash. 550, 553-55, 47 P.2d 1045 (1935) (merely holding that a life insurance policy could not discriminate against insureds who borrow against their policies because an insurance statute prohibited such discrimination); Mission Ins. Co. v. Guarantee Ins. Co., 37 Wash. App. 695, 699, 683 P.2d 215 (1984) (similarly holding that reformation of a policy after an injury was improper in part because a statute fixed the insurer's liability under the policy at the time the injury occurred). Nevertheless, even if RCW 48.22.005(11) is incorporated into the policy, we disagree with McLaughlin's narrow reading of that statute and hold that McLaughlin has not met his burden to show that a bicyclist is a pedestrian, even under RCW 48.22.005(11).

¶12 "The purpose of statutory interpretation is to determine the legislature's intent and to apply it." Segura v. Cabrera, 184 Wash.2d 587, 591, 362 P.3d 1278 (2015). "When possible, we derive the legislature's intent solely from the statute's plain language, considering the text of the provision at issue, the context of the statute, related provisions, and the statutory scheme as a whole." Segura, 184 Wash.2d at 591, 362 P.3d 1278.

¶13 RCW 48.22.005(11) states that " '[p]edestrian' means a natural person not occupying a motor vehicle as defined in RCW 46.04.320 ." (Emphasis added.) Title 46 RCW not only includes a definition of "motor vehicle," it also includes definitions for the terms "pedestrian" and "vehicle." See RCW 46.04.400 ("Pedestrian" is defined as "any person who is afoot or who is using a wheelchair, a power wheelchair, or a means of conveyance propelled by human power other than a bicycle."), .670 ("Vehicle" is defined as "every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles."). Under those related definitions, the legislature expressly determined that a bicyclist was not a pedestrian, but a vehicle. The definition of "pedestrian" in RCW 48.22.005(11) specifically refers the reader to Title 46 RCW. Therefore, we attempt to harmonize the definition of "pedestrian" in that statute with the definition of "pedestrian" found in RCW 46.04.400. Because RCW 48.22.005(11) does not explicitly refer to bicyclists, the statutes can be harmonized by excluding bicyclists from that definition of "pedestrian," in accordance with RCW 46.04.400.

¶14 McLaughlin argues that we must narrowly read RCW 48.22.005(11) to incorporate only the definition of "motor vehicle" from chapter 46.04 RCW. But doing so would violate the maxims of statutory construction that require us to determine the legislature's intent in part by reading a statute within the context of its related provisions and the statutory scheme as a whole. See Segura, 184 Wash.2d at 591, 362 P.3d 1278. Therefore, we do not read RCW 48.22.005(11) narrowly.

¶15 Citing a non-binding Maryland case, Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 517 A.2d 730 (1986), McLaughlin argues that the dictionary definition of "pedestrian" is not controlling because RCW 48.22.005(11) provides a broader definition of that term. As discussed, we disagree with his conclusion that the definition of "pedestrian" in RCW 48.22.005(11) includes a bicyclist. Furthermore, Tucker is not persuasive because that case involved statutory construction, not contract interpretation. See Tucker, 517 A.2d at 734 (giving the undefined term pedestrian in a PIP statute a broad interpretation consistent with the overall purpose of the statute). Tucker does not require reversal here.

¶16 McLaughlin argues that multiple cases have recognized that bicyclists are pedestrians for insurance purposes. He cites Mattson v. Stone, 32 Wash. App. 630, 648 P.2d 929 (1982), as an example. There, a passenger on a bicycle was struck by a car and obtained an insurance settlement from the driver's insurer. Mattson, 32 Wash. App. at 631-32, 648 P.2d 929. The issue on appeal was whether the driver's insurer had a valid subrogation claim against a later settlement between the bicycle passenger and driver. Mattson, 32 Wash. App. at 632, 648 P.2d 929. Although the court stated that the bicycle passenger was "a pedestrian injured in an accident" in its recitation of the facts of the case, it did not analyze whether the insurance policy defined a bicyclist as a "pedestrian." Mattson, 32 Wash. App. at 632-33, 648 P.2d 929. Therefore, Mattson is not applicable to our analysis.

¶17 In a statement of additional authorities, McLaughlin cites to Barriga Figueroa v. Prieto Mariscal, 193 Wash.2d 404, 441 P.3d 818 (2019), a recent Supreme Court case that considered whether an insurer owes a person injured under a tortfeasor's PIP policy the same quasi-fiduciary duties it would owe to the named insured. There, an eight-year-old boy was hit by a minivan. Barriga Figueroa, 193 Wash.2d at 407, 441 P.3d 818. The police report stated that the boy rode his bicycle into the roadway in front of the minivan. Barriga Figueroa, 193 Wash.2d at 407, 441 P.3d 818. The boy gave a number of statements about the accident, but his most detailed version was that his right shoelace got stuck in his bicycle spokes and the minivan ran over his leg when he leaned over to untangle the shoelace. Barriga Figueroa, 193 Wash.2d at 407, 441 P.3d 818. At the subsequent tort trial against the driver of the minivan, the trial court admitted a PIP application form signed by the boy's mother that mirrored the events reported in the police report. Barriga Figueroa, 193 Wash.2d at 410, 441 P.3d 818. The Supreme Court held that the PIP application was protected work product and should have been excluded. Barriga Figueroa, 193 Wash.2d at 415, 441 P.3d 818. In doing so, the court concluded, without extensive discussion, that the boy was an insured because under RCW 48.22.005(5)(b)(ii), "a pedestrian injured in an automobile accident is statutorily defined as an 'insured.' " Barriga Figueroa, 193 Wash.2d at 411, 441 P.3d 818. The court's statement does not help McLaughlin. The court did not specifically consider whether the definition of "pedestrian" includes a bicyclist. Furthermore, there was a factual dispute as to whether the boy was riding his bicycle in the road or was stopped to tie his shoelaces. For these reasons, Barriga Figueroa does not require reversal.

¶18 McLaughlin also cites authority from other jurisdictions that is similarly inapplicable in interpreting the undefined term "pedestrian" in his insurance policy. See Fireman's Fund Ins. Co. v. Kerger, 194 Ga. App. 20, 389 S.E.2d 541, 542 (1989) (issue on appeal was the meaning of "struck by" in the insurance policy even though "[t]he parties agree[d] that for the purposes of this case plaintiff must be considered a 'pedestrian' under Georgia law"); Harbold v. Olin, 287 N.J. Super. 35, 670 A.2d 117, 119 (App. Div. 1996) (acknowledging that the statutory definition of "pedestrian" under New Jersey PIP statutes includes a bicyclist); Pilotte v. Aetna Cas. & Sur. Co., 384 Mass. 805, 427 N.E.2d 746, 746-47 (1981) ("The defendant's insurance policy defines a pedestrian as 'a person who is walking or who is operating a bicycle, tricycle or similar vehicle, or a person on horseback or in a vehicle drawn by an animal.' ").

Furthermore, each of those other jurisdictions employ the reasonable expectation doctrine, which requires courts to interpret insurance policies from the standpoint of the insured's expectations. U.S. Life Title Ins. Co. of Dallas v. Hutsell, 164 Ga. App. 443, 296 S.E.2d 760, 763 (1982) ; Home Indem. Ins. Co. v. Merchants Distribs., Inc., 396 Mass. 103, 483 N.E.2d 1099, 1101 (1985) ; Zacarias v. Allstate Ins. Co., 168 N.J. 590, 775 A.2d 1262, 1271-72 (2001). But our Supreme Court "has on several occasions specifically declined to adopt the doctrine of reasonable expectations, under which the insured's subjective expectation of coverage determines the insurer's liability." Boeing, 113 Wash.2d at 894, 784 P.2d 507 ; see Quadrant, 154 Wash.2d at 172, 110 P.3d 733 ("[E]xpectations of the insured cannot override the plain language of the contract."). These cases are not relevant.

¶19 McLaughlin next argues that public policy concerns weigh in favor of defining a bicyclist as a "pedestrian" because bicyclists, like pedestrians, are "particularly vulnerable and susceptible to injury on the roadway." But as explained, an undefined term in an insurance policy must be given its plain, ordinary, and popular meaning. McLaughlin cites no authority for the proposition that the plain meaning of an undefined term can be set aside on policy grounds. Therefore, we assume that he found none.

DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 126, 372 P.2d 193 (1962) ("Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.").

¶20 McLaughlin argues that refusing to recognize a bicyclist as a pedestrian under the plain meaning of that word will lead to an absurd result. To illustrate this argument, he claims that a baby in a stroller would not be covered by the dictionary definition of "pedestrian." But to resolve this case, we need not determine whether such a baby would be an insured under McLaughlin's policy.

¶21 McLaughlin also argues that we should look to "the purpose of the laws at issue" when defining "pedestrian." As an example, he cites to Pudmaroff v. Allen, 138 Wash.2d 55, 977 P.2d 574 (1999), a Supreme Court case that examined whether a bicyclist was a "pedestrian" under former RCW 46.61.235(1) (1993), which required drivers to stop to allow pedestrians to cross the street in crosswalks. Pudmaroff, 138 Wash.2d at 60, 977 P.2d 574. The Supreme Court held that the definition of "pedestrian" in RCW 46.04.400 as a person "afoot" did not overrule prior case law establishing bicyclists would be treated the same as pedestrians when they were in a crosswalk. Pudmaroff, 138 Wash.2d at 64-65, 977 P.2d 574. The court explained that to hold otherwise would yield an absurd result because under such an interpretation, a driver would not be liable under RCW 46.61.235(1) for hitting a child riding his or her bicycle across a crosswalk. Pudmaroff, 138 Wash.2d at 64-65, 977 P.2d 574. But Pudmaroff is not controlling here. McLaughlin was not in a crosswalk when he was hit by Moore's car door-he was riding down a busy street in downtown Seattle. Furthermore, the term "pedestrian" in his insurance policy is not subject to principles of statutory interpretation, but to the principles of contract interpretation. The analysis of an undefined term in an insurance policy is straightforward and requires only that we determine the plain, ordinary, and popular meaning of "pedestrian." We need not look to the purpose of any laws regulating pedestrians or bicyclists for this conclusion. Therefore, McLaughlin's reliance on Pudmaroff is misplaced.

¶22 Finally, McLaughlin argues that to the extent the term "pedestrian" is ambiguous in the policy, the ambiguity should be construed against Travelers, who drafted the contract. He is correct that "[a]mbiguous policy language must be liberally construed in the insured's favor." Gull Indus., Inc. v. State Farm Fire & Cas. Co., 181 Wash. App. 463, 470-71, 326 P.3d 782 (2014). But here, "pedestrian" is not ambiguous under either the dictionary definition or RCW 48.22.005(11). Therefore, we are not required to construe "pedestrian" in McLaughlin's favor.

¶23 We affirm.

WE CONCUR:

Leach, J.

Schindler, J.