author: YU, J. GORDON McCLOUD, J. (concurring) FAIRHURST, C.J. (dissenting)

text:
    Christal FIELDS, Petitioner, v. State of Washington DEPARTMENT OF EARLY LEARNING Respondent.
    No. 95024-5
    Supreme Court of Washington.
    Oral Argument Date: May 8, 2018 Filed: FEBRUARY 21, 2019
    Prachi Vipinchandra Dave, Public Defender Association, 110 Prefontaine Place S, Suite 502, Seattle, WA 98104-2626, Toby James Marshall, Terrell Marshall Law Group PLLC, 936 N. 34th Street, Suite 300, Seattle, WA 98103-8869, for Petitioner.
    Patricia Lee Allen, Washington State Attorney General, 800 5th Avenue, Suite 2000, Seattle, WA 98104-3188, Alan D. Copsey, Office of the Attorney General, P.O. Box 40100, 1125 Washington Street SE, Olympia, WA 98504-0100, for Respondent.
    Sujatha Jagadeesh Branch, Northwest Justice Project, 401 2nd Avenue S, Suite 407, Seattle, WA 98104-3811, Nicholas Brian Allen, Attorney at Law, 101 Yesler Way, Suite 300, Seattle, WA 98104-2528, Candelaria Murillo, Anderson Law PLLC, 5861 W. Clearwater Avenue, Kennewick, WA 99336-1849, Sara Lyle Ainsworth, Legal Team, 1517 12th Avenue, Suite 101, Seattle, WA 98122-3956, for Amicus Curiae Civil Survival.
    Sara Lyle Ainsworth, SLA Legal Team, 1517 12th Avenue, Suite 101, Seattle, WA 98122-3956, Priya Walia, Surge Reproductive Justice, 1402 Third Avenue, Suite 201, Seattle, WA 98101, for Amicus Curiae Legal Voice, Surge, The Incarcerated Mothers Advocacy Project, The Public Defender Association.
    Rebecca A. Smith, National Employment Law Project, 317 17th Avenue S, Seattle, WA 98144-2147, for Amicus Curiae National Employment Law Project, Washington State Labor Council, AFL-CIO.
    Meagan J. MacKenzie, Northwest Justice Project, 711 Capitol Way S, Suite 704, Olympia, WA 98501-1237, Deborah Perluss, Northwest Justice Project, 401 2nd Avenue S, Suite 407, Seattle, WA 98104-3811, Sara Lyle Ainsworth, SLA Legal Team, 1517 12th Avenue, Suite 101, Seattle, WA 98122-3956, for Amicus Curiae Northwest Justice Project.
    Sara Lyle Ainsworth, Legal Team, 1517 12th Avenue, Suite 101, Seattle, WA 98122-3956, for Amicus Curiae SEIU 925.
   YU, J.

¶ 1 This case concerns the extent to which a criminal record may preclude a person from supporting herself through lawful employment in her chosen field. In 1988, petitioner Christal Fields pleaded guilty to attempted second degree robbery for trying to snatch a woman's purse. As a result, Fields was permanently disqualified from working at any licensed childcare facility in Washington pursuant to regulations promulgated by respondent Department of Early Learning (DEL). Fields raises state and federal constitutional challenges to these regulations, both facially and as applied to her. We decline to reach Fields's facial challenges and state constitutional arguments. However, we hold that DEL's regulations prohibiting any individualized consideration of Fields's qualifications at the administrative level violate Fields's federal right to procedural due process as applied. We therefore reverse the Court of Appeals and remand for further administrative proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 The relevant factual background as recounted by the Court of Appeals is undisputed:

Fields grew up in a dysfunctional home environment with rampant drug abuse. At the age of 16, she became homeless and turned to prostitution and drugs. In 1988[, at age 22], Fields attempted to snatch a purse to help pay for her drug habit. She pleaded guilty to attempted second degree robbery.
Fields continued to lead a troubled life until 2006 when she turned her life around by successfully completing a drug program. She has been clean and sober ever since. For two years she resided in group housing. During this time, she was promoted to resident manager because of her responsibility and commitment to working with others. Many support letters from employers and coworkers since then attest to Fields's character.
On February 6, 2013, Fields submitted a portable background check to DEL. Based on the information Fields provided, DEL cleared Fields to work at a childcare facility. She worked in that childcare facility for six months after she received her background clearance. Fields loves working with children and has taken advantage of every available training opportunity to improve her skills.
A local news report on childcare centers brought Fields's undisclosed criminal history to DEL's attention.

Fields v. Dep't of Early Learning , No. 75406-8-I, slip op. at 1-2, 2017 WL 3588960 (Wash. Ct. App. Aug. 21, 2017) (unpublished) (footnote omitted), http://www.courts.wa.gov/opinions/pdf/754068.pdf.

¶ 3 The licensing supervisor for DEL sent a notice of disqualification to Fields. The notice informed Fields that she was permanently disqualified, effective immediately, "meaning that you cannot work with or have unsupervised access to child care children." Clerk's Papers at 49. Fields appealed to the Office of Administrative Hearings (OAH). Fields also requested reconsideration by the licensing supervisor, pointing to both factual inaccuracies in the notice of disqualification and evidence of her rehabilitation. It does not appear from the record that Fields's request for reconsideration has been considered on its merits.

¶ 4 On appeal, DEL moved for summary judgment on the sole basis that in accordance with former WAC 170-06-0120(1) (2015), "the appellant must be disqualified from having unsupervised access to children or obtaining a [childcare] license under [former] WAC 170-06-0070(1) [ (2015) ] due to her 1988 conviction of attempted second degree robbery." Id. at 140. Fields did not challenge the fact of her 1988 conviction but contended that the disqualification regulations violate her constitutional right to due process of law, both facially and as applied. OAH determined that such questions were beyond the scope of its review and therefore granted summary judgment to DEL.

¶ 5 Fields petitioned for review in superior court, again arguing that the disqualification regulations violate her state and federal rights to procedural and substantive due process, both facially and as applied. DEL opposed Fields's arguments on the merits. The superior court dismissed the petition for review, determining that Fields had not met her burden of proving that the disqualification regulations are unconstitutional. The Court of Appeals affirmed in an unpublished opinion, and we granted Fields's petition for review. Fields v. Dep't of Early Learning , 189 Wash.2d 1031, 407 P.3d 1149 (2018).

ISSUE

¶ 6 Are DEL's permanent disqualification regulations unconstitutional, either facially or as applied to Fields?

ANALYSIS

¶ 7 Fields contends that she is entitled to relief because "[t]he order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied." RCW 34.05.570(3)(a). Specifically, she raises challenges based on the due process clauses of the state and federal constitutions, both facially and as applied. U.S. CONST . amend. XIV, § 1 ; WASH. CONST . art. I, § 3. We review the constitutionality of agency rules de novo, using the same standards that we use when reviewing the constitutionality of statutes. Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 215, 143 P.3d 571 (2006). "Statutes are presumed to be constitutional, and the burden to show unconstitutionality is on the challenger." Id. The challenger can meet this burden only "if argument and research show that there is no reasonable doubt that the statute violates the constitution." Id.

¶ 8 We hold that DEL's regulations do violate federal procedural due process as applied to Fields. We therefore reverse the Court of Appeals.

A. Background information regarding DEL

¶ 9 At the time of Fields's permanent disqualification, DEL was an administrative agency within the executive branch that the legislature created in response to "a shortage of high quality services and supports for children ages birth to three and their parents and caregivers." Former RCW 43.215.005(2)(c) (2010). In general, "[t]he primary duties of the department [were] to implement state early learning policy and to coordinate, consolidate, and integrate child care and early learning programs in order to administer programs and funding as efficiently as possible." Former RCW 43.215.020(2) (2016).

¶ 10 Effective July 1, 2018, DEL became part of the newly created Department of Children, Youth, and Families (DCYF). LAWS OF 2017, 3d Spec. Sess., ch. 6. However, Fields's disqualification was effected by DEL, based solely on the DEL regulations then in effect. Given this procedural history, we decline to speculate on how a factually similar case would (or should) be handled by DCYF in the future.

¶ 11 The legislature specifically tasked DEL with administering a licensing program for childcare facilities. Former RCW 43.215.200(3) - (4) (2015). In order to receive and maintain a license to operate, childcare facilities were required to comply with applicable statutes and DEL regulations and were subject to regular inspections and mandatory reporting requirements. Operating an unlicensed childcare facility is a misdemeanor. Former RCW 43.215.340 (2006), recodified as RCW 43.216.365.

¶ 12 As part of the licensing program, DEL is required to run background checks on anyone who wants to work in a childcare facility in order to determine whether the "individual is of appropriate character, suitability, and competence to provide child care and early learning services to children." Former RCW 43.215.215(1) (2011). Pursuant to its rule making authority, DEL adopted administrative regulations for running these background checks.

¶ 13 DEL's regulations provide that "[a] subject individual who has a background containing any of the permanent convictions on the director's list, [former] WAC 170-06-0120(1), will be permanently disqualified from providing licensed child care, caring for children or having unsupervised access to children in child care." Former WAC 170-06-0070(1), recodified as WAC 110-06-0070. This "director's list" includes 50 types of permanently disqualifying convictions, one of which is "[r]obbery." Former WAC 170-06-0120, recodified as WAC 110-06-0120. For purposes of the director's list, Fields's conviction for attempted second degree robbery is treated in the same manner as a completed offense and is therefore permanently disqualifying. Former WAC 170-06-0050(1)(c) (2015), recodified as WAC 110-06-0050.

¶ 14 A person with a permanently disqualifying conviction has no recourse at the administrative level. DEL regulations prohibit any administrative decision-maker from finding any regulation invalid or unenforceable and further prohibit reconsideration of permanent disqualifications on a case-by-case basis. WAC 170-03-0230(1) ; former WAC 170-06-0115(5) (2015), recodified as WAC 110-06-0115.

B. Fields does properly raise a procedural due process challenge

¶ 15 The due process clause of the Fourteenth Amendment provides that no state may "deprive any person of life, liberty, or property, without due process of law." U.S. CONST . amend. XIV, § 1. Fields's right to pursue the lawful career of her choice without arbitrary interference by the State is a well-established "liberty interest protected by the due process clause." Amunrud , 158 Wash.2d at 219, 143 P.3d 571. The right to due process has both procedural and substantive components. Id. at 216, 143 P.3d 571. DEL, however, contends that Fields's due process claim is substantive only, with no true procedural component. We disagree. While Fields does raise a substantive challenge, she also raises a procedural one.

¶ 16 "[P]rocedural due process requires that an individual receive notice of the deprivation and an opportunity to be heard to guard against erroneous deprivation" of a protected interest. Id. To determine whether a particular procedure for providing notice and an opportunity to be heard is constitutionally adequate, we must assess the risk of erroneous deprivation in light of the competing interests at stake. Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To do so, we must first recognize that there are different ways in which a deprivation might be "erroneous."

¶ 17 For instance, a deprivation might be "erroneous" based on a statutory or regulatory violation, where there is an error in applying the law as written to the facts presented. 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 14.6(a)(i), at 722 (5th ed. 2012). There is no question that Fields received sufficient procedures to guard against this type of error. The validity of her underlying conviction is unchallenged, and DEL's regulations, as written, require Fields's permanent disqualification on the sole basis of that conviction.

¶ 18 Nevertheless, a deprivation based on a constitutional violation is no less "erroneous" than a deprivation based on a statutory or regulatory violation. A deprivation thus might be "erroneous" even though the law as written was correctly applied to the facts presented because the law, as applied, is unconstitutional. This is the type of error Fields asserts, claiming that her permanent disqualification based solely on a 30-year-old attempted second degree robbery conviction constitutes an arbitrary deprivation of her protected interest in pursuing lawful employment in her chosen field. Fields has a procedural due process right to have this claim heard " 'at a meaningful time and in a meaningful manner,' appropriate to the case." Amunrud , 158 Wash.2d at 216, 143 P.3d 571 (internal quotation marks omitted) (quoting Mathews , 424 U.S. at 333, 96 S.Ct. 893 ).

¶ 19 DEL's regulations prohibit any consideration of Fields's claim at the administrative level. Therefore, the only procedural mechanism available to her is judicial review pursuant to the Administrative Procedure Act (APA), chapter 34.05 RCW. To resolve Fields's as-applied procedural due process claim, we must determine whether APA review is sufficient to protect against an erroneous deprivation of Fields's protected interest in light of the specific circumstances presented.

C. In light of Fields's particular circumstances, she has a procedural due process right to an individualized determination at the administrative level

¶ 20 Fields claims that as applied to her, DEL's regulations forbidding a case-by-case determination of whether she is qualified to work in licensed childcare created an unacceptably high risk of erroneous deprivation in violation of her federal right to procedural due process. In the particular circumstances presented by Fields's case, we agree.

¶ 21 Our analysis of Fields's federal procedural due process claim is guided by the Mathews test, which requires us to consider the following:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. 893. The parties do not dispute that Fields has a strong interest in pursuing her chosen profession without arbitrary interference by the State, while DEL has a strong interest in protecting children who are taught or cared for in licensed facilities without creating undue administrative burdens. It is the second Mathews factor that is primarily at issue: the risk of erroneous deprivation and the probable value of additional procedural safeguards.

¶ 22 In addressing this issue, we focus on the as-applied nature of Fields's challenge, which "is characterized by a party's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional." City of Redmond v. Moore , 151 Wash.2d 664, 669, 91 P.3d 875 (2004) (emphasis added). Furthermore, " '[d]ue process is flexible and calls for such procedural protections as the particular situation demands.' " Mathews , 424 U.S. at 334, 96 S.Ct. 893 (quoting Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). We therefore must consider the risk of erroneous deprivation and the competing interests at stake in light of Fields's particular circumstances.

1. Fields faces an unusually high risk of erroneous deprivation

¶ 23 Fields has a protected interest, but not a fundamental right, to pursue her chosen, lawful occupation. Amunrud , 158 Wash.2d at 222, 143 P.3d 571. Therefore, if DEL's regulations prevent her from pursuing her chosen occupation without a rational basis for doing so, she has been erroneously deprived of a protected interest. Id. Here, a number of factors combine to put Fields at an unusually high risk of erroneous deprivation.

¶ 24 First, Fields's conviction is over 30 years old, but DEL's regulations treat her identically to a person who has recently committed multiple acts of child abuse. DEL's regulations also give no weight to the fact that Fields was 22 years old at the time of her offense, while "psychological and neurological studies show[ ] that the 'parts of the brain involved in behavior control' continue to develop well into a person's 20s." State v. O'Dell , 183 Wash.2d 680, 691-92, 358 P.3d 359 (2015) (footnote omitted) (internal quotation marks omitted) (quoting Miller v. Alabama , 567 U.S. 460, 472, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ). And at the time of her offense, Fields was "addicted to drugs, in domestic violence relationships, [and] in and out of homelessness." Report of Proceedings (RP) at 9. It is undisputed that Fields has overcome these challenges. Nevertheless, DEL's regulations make her 30-year-old conviction a permanent barrier to pursuing employment in her chosen field. Because Fields's sole disqualifying conviction occurred long ago under circumstances that no longer exist, it is highly likely that her permanent disqualification is erroneously arbitrary.

¶ 25 In addition to the passage of time in Fields's particular case, DEL's regulations are unusually "onerous" as compared to other laws relating to disqualification for unsupervised contact with children based on prior convictions. Br. of Amicus Curiae Civil Survival in Supp. of Pet. for Review at 5. For instance, the federal government requires the State to permanently disqualify individuals from licensed childcare work based on certain violent and sexual crimes. 42 U.S.C. § 9858f(c)(1)(D)-(E). "Robbery is not one of those crimes ." Fields , No. 75406-8-I, slip op. at 9 (emphasis added). This inconsistency between state and federal law increases the risk of an arbitrary, erroneous deprivation based solely on Fields's attempted second degree robbery conviction.

¶ 26 Washington law creates another inconsistency by providing that Fields's conviction would not permanently bar her from obtaining a license as a foster care provider. In contrast to the limited role played by licensed childcare facilities, "[f]oster parents are responsible for the protection, care, supervision, and nurturing of the child in placement." RCW 74.13.330. Yet Washington law provides that a conviction of robbery results in only a five-year disqualification from foster care license eligibility. DSHS Secretary's List of Crimes and Negative Actions for Use by Children's Administration (Mar. 2017), https://www.dshs.wa.gov/sites/default/files/CA/pub/documents/secretaryslist.pdf [https://perma.cc/SJ7P-HG8J]; see also former WAC 388-06A-0170(1)(a)-(e) (2015), recodified as WAC 110-04-0100(1)(a)-(e). These inconsistent standards make it highly likely that a person convicted of attempted second degree robbery will be arbitrarily disqualified from working with children in licensed childcare even though the State would view that person as entirely fit to work with children as a foster parent.

¶ 27 Finally, the undisputed facts underlying Fields's 1988 conviction do not indicate that she was likely to pose a danger to children for the rest of her life. At the age of 22, Fields "tried to grab a woman's purse away from her in front of a Bartell[ ] Drugs." RP at 4. At the time, "[s]he was addicted to drugs, in domestic violence relationships, [and] in and out of homelessness." Id. at 9. There is no indication that any children were either victims of or witnesses to the attempted crime. And because Fields was not convicted of first degree robbery, we know that she was not armed with a deadly weapon, did not display anything that appeared to be a deadly weapon, and did not cause any bodily injury to the victim. Former RCW 9A.56.200(1) (1975). As the superior court judge in this case noted, Fields's actions "barely met perhaps the statutory elements of robbery in the second degree at the time." RP at 26. Indeed, she was not even successful in grabbing the purse. DEL's regulations, however, treat Fields's inchoate attempt identically to a completed crime.

¶ 28 Without question, prior criminal convictions are relevant considerations when evaluating a person's future ability to care for vulnerable populations such as children. However, Fields's conviction is based on an offense that was committed 30 years ago, when she was under 25 years old. Her attempted second degree robbery conviction does not permanently disqualify her from licensed childcare work as a matter of federal law and does not even permanently disqualify her from being a licensed foster care provider as a matter of state law. The offense itself did not involve any children in any way, did not involve any deadly weapons, and did not inflict any bodily injury. In light of these circumstances, and keeping in mind that DEL's designated task is to determine whether the individual is of appropriate character, suitability, and competence to provide childcare under former RCW 43.215.215(1), it is difficult to see how the fact of the single conviction at issue here should permanently disqualify Fields as unfit to work in a licensed childcare facility.

¶ 29 This is not to say that Fields is necessarily qualified for such work. The notice of disqualification sent by DEL's licensing supervisor raised a number of concerns that, taken together, may still lead to Fields's disqualification. However, using Fields's 1988 attempted second degree robbery conviction as the sole basis for her permanent disqualification with no opportunity for an individualized determination presents an unusually high risk of arbitrary, erroneous deprivation. In light of this unusually high risk, the additional procedure of an individualized determination at the administrative level would be extremely valuable.

2. An individualized administrative determination of Fields's qualifications is invaluable to mitigating the risk of erroneous deprivation

¶ 30 As noted above, DEL regulations explicitly prohibit any individualized consideration of the qualifications of a person with a permanently disqualifying conviction. WAC 170-03-0230(1) ; former WAC 170-06-0115(5). Fields's only recourse was therefore to seek judicial review of her disqualification pursuant to the APA. In these particular circumstances, APA review does not provide sufficient procedural protections given the high risk of erroneous deprivation.

¶ 31 To obtain judicial review, Fields was required to comply with the APA's strict requirements for filing and serving her petition. RCW 34.05.542. To prevail on the merits, she faced the extraordinarily high burden of showing beyond a reasonable doubt that DEL's regulations were unconstitutional. Amunrud , 158 Wash.2d at 215, 143 P.3d 571. The only relief Fields has ever asked for is an individualized determination of her qualifications at the administrative level. She has been challenging her disqualification in court since October 2015, going through three levels of judicial review, unable to work (much less advance) in her chosen field the entire time. The added time and expense involved in the judicial review process, in addition to the difficulty in obtaining relief, raises significant concerns about its adequacy in light of the high risk of erroneous deprivation presented here. Mathews , 424 U.S. at 341-42, 96 S.Ct. 893 ; see dissent at 1012-13.

¶ 32 Meanwhile, an individualized determination would drastically reduce the risk of erroneous deprivation in Fields's case. Properly and fairly conducted, an individualized determination will ensure that even if Fields is ultimately disqualified, it will not be arbitrary but, instead, based on her "character, suitability, and competence to provide child care and early learning services to children." Former RCW 43.215.215(1).

¶ 33 We recognize DEL's interests, but they are not compromised by this as-applied challenge. DEL's primary interest, protecting children, is not implicated at all. Whether Fields is qualified to work in licensed childcare facilities will still be decided with the paramount goal of protecting children. The procedure on remand need not be unusual or burdensome. DEL already has regulations governing individual determinations of those with troubling past behavior but without any disqualifying convictions. See former WAC 170-06-0070(4), (7) ; former WAC 170-06-0090(1) (2015), recodified as WAC 110-06-0090 ; former WAC 170-06-0100 (2015), recodified as WAC 110-06-0100 ; former WAC 170-06-0115(1)-(4). Fields is entitled only to be heard in accordance with existing procedures, where her attempted second degree robbery conviction is considered along with the rest of her history, both favorable and unfavorable. If there is a nonarbitrary basis to believe that Fields's qualification would present a danger to childcare children, she will remain disqualified, fully protecting DEL's primary interest in protecting children.

¶ 34 DEL also has a legitimate interest in easing the administrative burdens that would come with requiring a case-by-case evaluation of every person who seeks qualification to work in licensed childcare facilities. Weinberger v. Salfi , 422 U.S. 749, 784, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). However, that interest is extremely minimal given the as-applied nature of this challenge. We do not hold that every person with a permanently disqualifying conviction must be given an individualized administrative hearing. We hold only that in light of the unusually high risk of erroneous deprivation in Fields's particular case, the additional protection of an individualized determination of her qualifications is required as a matter of procedural due process.

CONCLUSION

¶ 35 We do not question the authority of administrative agencies to set generally applicable regulations governing the qualifications of people who work with vulnerable populations such as children. But that authority cannot preclude the possibility that the regulations may nevertheless be unconstitutional as applied to a particular case. As applied to this case, DEL's regulations created an intolerably high risk of erroneously depriving Fields of her protected interest in pursuing her chosen, lawful occupation. Addressing Fields's qualifications on an individualized basis at the administrative level is invaluable to reducing that risk, and in this as-applied challenge, the value of such a procedure is not outweighed by any countervailing government interest. We therefore reverse the Court of Appeals and remand for further administrative proceedings, at which Fields's entire history and the totality of her circumstances must be considered on an individualized basis.

WE CONCUR:

Madsen, J.

Stephens, J.

González, J.

GORDON McCLOUD, J. (concurring)

¶ 36 I agree with the dissent insofar as it concludes that the Department of Early Learning (DEL) did not violate Christal Fields' federal right to procedural due process. U.S. CONST . amend. XIV, § 1. But I disagree with the dissent's resolution of Fields' substantive due process claim. I believe that DEL violated Fields' federal right to substantive due process and would reverse the Court of Appeals on this ground. Id. Thus, while I disagree with the lead opinion's reasoning, I concur in its result. Should DEL want to disqualify Fields for other reasons, it must go through additional administrative proceedings and comply with procedural and substantive due process. But DEL may not permanently disqualify Fields based solely on her 1988 conviction because doing so violates substantive due process.

¶ 37 "Substantive due process protects against arbitrary and capricious government action even when the decision to take action is pursuant to constitutionally adequate procedures." Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 218-19, 143 P.3d 571 (2006) (citing Halverson v. Skagit County , 42 F.3d 1257, 1261 (9th Cir. 1994) ). "[P]ursuit of an occupation or profession is a liberty interest protected by the due process clause." Id. at 219, 143 P.3d 571 (citing Conn v. Gabbert , 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ; Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ). "Because the right to pursue a trade or profession is a protected right but not a fundamental right, we apply a rational basis test." Id. at 222, 143 P.3d 571. Under this test, we determine whether the challenged regulations are rationally related to a legitimate state interest. Id. Although rational basis review is "the most relaxed form of judicial scrutiny," id. at 223, 143 P.3d 571 (citing State v. Shawn P. , 122 Wash.2d 553, 859 P.2d 1220 (1993) ), it is not " ' "toothless," ' " Nielsen v. Dep't of Licensing , 177 Wash. App. 45, 53, 309 P.3d 1221 (2013) (quoting Mathews v. De Castro , 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976) (quoting Mathews v. Lucas , 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) )).

¶ 38 Fields argues that DEL's regulation violated her federal right to substantive due process, both facially and as applied. To succeed on her facial challenge, Fields must show that "no set of circumstances exists in which the [regulation], as currently written, can be constitutionally applied." City of Redmond v. Moore , 151 Wash.2d 664, 669, 91 P.3d 875 (2004) (citing Wash. State Republican Party v. Pub. Disclosure Comm'n , 141 Wash.2d 245, 282 n.14, 4 P.3d 808 (2000) (citing In re Det. of Turay , 139 Wash.2d 379, 417 n.27, 986 P.2d 790 (1999) )). To succeed on her as-applied challenge, Fields must show that the regulation is unconstitutional as applied to her, even if it could be constitutionally applied in a different circumstance. Id. at 668-69, 91 P.3d 875.

¶ 39 One can certainly imagine a set of circumstances in which DEL may apply the regulation at issue without offending the United States Constitution. DEL has a legitimate interest in "safeguard[ing] and promot[ing] the health, safety, and well-being of children receiving child care and early learning assistance, which is paramount over the right of any person to provide care." Former RCW 43.215.005(4)(c) (2010). DEL can advance this interest by, for example, preventing a person recently convicted of multiple attempted robberies from working at a licensed childcare facility. See dissent at 1014-15 (explaining that second degree robbery is a serious offense against another person). Thus, Fields' facial substantive due process claim must fail. But the challenged regulation, as applied to Fields , is not rationally related to any legitimate state interest.

¶ 40 While DEL undeniably has a legitimate interest in safeguarding and promoting the health, safety, and well-being of children, this legitimate interest is not at all fostered by permanently barring a person who was convicted of attempted second degree robbery over 30 years ago at the age of 22. The lead opinion aptly explains why:

Fields's conviction is based on an offense that was committed 30 years ago, when she was under 25 years old. Her attempted second degree robbery conviction does not permanently disqualify her from licensed childcare work as a matter of federal law and does not even permanently disqualify her from being a licensed foster care provider as a matter of state law. The offense itself did not involve any children in any way, did not involve any deadly weapons, and did not inflict any bodily injury.[ ] In light of the circumstances, and keeping in mind that DEL's designated task is to determine whether the individual is of appropriate character, suitability, and competence to provide childcare under former RCW 43.215.215(1), it is difficult to see how the fact of the single conviction at issue here should permanently disqualify Fields as unfit to work in a licensed childcare facility.

Lead opinion at 1006; see also id. at 1004-06.

¶ 41 But the lead opinion does so under its analysis of procedural due process. Id. As the dissent notes, the lead opinion "conflate[s] procedural and substantive due process." Dissent at 1009. "Procedural due process guarantees only that individuals have notice and the opportunity to be heard to contest whether the rule does apply to them, not whether it should." Id. at 1010. Everyone agrees that the regulation at issue bars Fields from working at a licensed childcare facility. Lead opinion at 1003-04; dissent at 1011. The issue here is whether barring Fields because of her conviction from 1988 is rationally related to a legitimate state interest. And that is a question of substantive due process. See dissent at 1011-12.

¶ 42 DEL also "has a legitimate interest in avoiding the administrative burden of holding an individualized inquiry in every case." Id. at 1014; see also lead opinion at 1007. But we do not allow constitutional violations merely because it would be burdensome to prevent them:

"The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones."

Olympic Forest Prods., Inc. v. Chaussee Corp. , 82 Wash.2d 418, 433, 511 P.2d 1002 (1973) (quoting Stanley v. Illinois , 405 U.S. 645, 656, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ). Regardless, in my view, DEL is not required to hold an individualized inquiry in every case. If DEL can write a bright-line regulation that seldom, if ever, violates substantive due process as applied, it can avoid individualized inquiries in most, if not all, cases. In drafting a rule that is less likely to violate a person's substantive due process rights, DEL might consider how old the person was when he or she committed the crime and the amount of time that has elapsed since the crime was committed.

¶ 43 In sum, the challenged regulation, as applied to Fields, is not rationally related to a legitimate state interest. The regulation therefore amounts to arbitrary and capricious government action and violates Fields' federal right to substantive due process. As such, I would reverse the Court of Appeals and hold that DEL may not bar Fields solely because of a conviction for attempted second degree robbery from 1988 when she was 22 years old. I therefore respectfully concur.

FAIRHURST, C.J. (dissenting)

¶ 44 I dissent because Christal Fields has failed to meet her burden of showing that the Department of Early Learning (DEL) violated her due process rights. In arguing that procedural due process requires DEL to give her an individualized hearing, both Fields and the lead opinion conflate procedural and substantive due process. Fields' claim is not that there is a risk that the rule permanently disqualifying people with certain criminal convictions on the director's list will be erroneously applied to her. She admits that she has a conviction for a crime on the director's list. Instead, her argument is that this rule is overinclusive and therefore there is a risk that she will be deprived the right to provide childcare even though she may not pose a risk to children. Because there was no risk that the rule would be erroneously applied to her in the proceedings below and because she was able to bring her constitutional challenge to the rule in court, her procedural due process rights were satisfied.

¶ 45 Fields' true claim is one of substantive due process. On that claim I would find that she has failed to meet the heavy burden of showing that the decision to permanently disqualify her from providing childcare services based on her conviction for the violent crime of attempted robbery is not rationally related to the legitimate government interest in protecting children. Accordingly, I would affirm the Court of Appeals.

I. ANALYSIS

A. Standard of review

¶ 46 Fields claims that former WAC 170-06-0070 (2015) violates her procedural and substantive due process rights under the Fourteenth Amendment to the United States Constitution. We review the Court of Appeals ruling on this issue de novo. Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 215, 143 P.3d 571 (2006).

B. Fields' procedural due process rights were not violated because there was no risk of the rule being erroneously applied to her

¶ 47 The due process clause of the Fourteenth Amendment to the United States Constitution has both substantive and procedural components. See 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 14.6(a)(i), (ii), at 722-25 (5th ed. 2012). Procedural due process sets limitations on the process the government must provide before depriving an individual of liberty or property interests. See Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Substantive due process, on the other hand, limits the rules that the government may adopt governing these deprivations. See Sintra, Inc. v. City of Seattle , 119 Wash. 2d 1, 21, 829 P.2d 765 (1992). Fields' right to practice her chosen profession is a liberty interest protected by due process. Amunrud , 158 Wash.2d at 219, 143 P.3d 571 (explaining that "pursuit of an occupation or profession is a liberty interest protected by the due process clause").

¶ 48 However, the hearings Fields has been given clearly satisfy the requirements of procedural due process. Procedural due process guarantees only that individuals have notice and the opportunity to be heard to contest whether the rule does apply to them, not whether it should. Fields had the opportunity to request reconsideration by the licensing supervisor, to appeal her disqualification to the Office of Administrative Hearings, and to challenge her disqualification in superior court as a violation of her substantive due process rights. The fact that she was not able to challenge the constitutionality of this rule within the administrative process itself is not a procedural due process violation.

¶ 49 Under Mathews , courts consider three factors in determining whether the process afforded to an individual was sufficient to satisfy the due process clause:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. 893 ; see also City of Bellevue v. Lee , 166 Wash.2d 581, 585, 210 P.3d 1011 (2009). These factors weigh against finding a procedural due process violation in this case.

1. Fields has a substantial private interest in her ability to work in childcare

¶ 50 Fields' interest in pursuing childcare as a profession is not in dispute here. Fields has demonstrated a passion for working in childcare and has invested heavily in the pursuit of her chosen occupation. See Am. Suppl. Br. of Appellant at 6. The fulfillment that she finds from this work is clear from the briefing and argument. See id.

¶ 51 The personal interest at stake here is particularly weighty because the decision made by DEL is not temporary and, instead, will permanently disqualify her from working in her chosen profession. See Amunrud , 158 Wash.2d at 217, 143 P.3d 571 (noting the length of deprivation has a factor in weighing the private interest at stake). Therefore, the first Mathews factor weighs in favor of affording her substantial process. However, the process she was given here was sufficient because there was no risk of erroneous deprivation.

2. There is no risk of erroneous deprivation because Fields has admitted that she has a permanently disqualifying conviction

¶ 52 The lead opinion claims that the inability of Fields to challenge her disqualification at the administrative level violated procedural due process. The lead opinion admits that "[t]here is no question that Fields received sufficient procedures" to ensure that the law as written was accurately applied to Fields. Lead opinion at 1003. This is because the rule is not that DEL prohibits anyone who poses a danger to children from working at a licensed childcare facility. The rule is that DEL prohibits anyone convicted of a permanently disqualifying crime from working at a licensed childcare facility, and Fields has admitted that she has been convicted of such a crime.

¶ 53 However, the lead opinion believes that there was a high risk that DEL would disqualify Fields from providing childcare services erroneously, i.e., that she would be disqualified despite not posing a danger to children. The lead opinion contends that because Fields may not pose a danger to children, procedural due process demands that she be able to challenge the application of this rule to her in the administrative process. But "if DEL's regulations prevent [Fields] from pursuing her chosen occupation without a rational basis for doing so," lead opinion at 1004-05, then the regulations violate substantive due process, not procedural due process. Whether or not this rule is arbitrary, advances the interests of the State, or is otherwise a good idea has no part in a procedural due process analysis:

Procedural due process guarantees only that there is a fair decision-making process before the government takes some action directly impairing a person's life, liberty or property. This aspect of the due process clauses does not protect against the use of arbitrary rules of law which are the basis of those proceedings. It is only necessary that a fair decision-making process be used; the ultimate rule to be enforced need not be a fair or just one.

ROTUNDA & NOWAK , supra , at 722 (emphasis added).

¶ 54 Procedural due process does not require an agency to hear a constitutional challenge within the administrative process. In Dixon v. Love , the United States Supreme Court held that the decision to suspend the license of a commercial truck driver before there was a full hearing did not violate procedural due process, explaining that

[u]nder the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Since appellee does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations. Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations.

431 U.S. 105, 113-14, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) (emphasis added) (footnote and citation omitted); cf. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 544 n.9, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (finding that an individualized hearing was required by due process when the reason for the employee's termination was arguable because it "turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form").

¶ 55 Like in Dixon , the decision to disqualify Fields is automatic under DEL rules once she admitted that she had a conviction for attempted robbery. Fields is arguing for the right to appear in person in the administrative process to argue that DEL should show leniency and depart from its own rules. The United States Supreme Court rejected the argument that procedural due process grants this right in Dixon , and I would reject it here as well.

¶ 56 Similarly, in Connecticut Department of Public Safety v. Doe , 538 U.S. 1, 6, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), an individual admitted that he had a conviction that would require him to be listed on the sex offender registry as a sexually dangerous person. He claimed that due process gave him a right to a hearing to establish that despite his conviction, he was not dangerous. Id. The Court unanimously rejected his due process claim because the law at issue did not allow for individualized considerations of dangerousness. Id. at 7-8, 123 S.Ct. 1160. The Court held that "[p]laintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme." Id. at 8, 123 S.Ct. 1160. Fields also admitted that she had a disqualifying conviction but claims that due process gives her the right to a hearing to establish that despite her conviction, she is not dangerous to children. Whether or not she is dangerous to children is not relevant under the current DEL rules, which expressly preclude any consideration of individual circumstances where a person is permanently disqualified due to a prior conviction for robbery. Former WAC 170-06-0070(1), - 0115(5), - 0120(1) (2015). Therefore, applying Doe , Fields is not entitled to an individualized hearing because she cannot show that the facts she seeks to establish in that hearing are relevant under the statutory scheme.

¶ 57 The lead opinion claims that procedural due process requires DEL to allow Fields to make the argument that the rule violates her substantive due process rights during the administrative process. Lead opinion at 1006. But Fields did have the opportunity to obtain review of her claim that the rule was unconstitutional as applied to her by filing in the superior court. The fact that she could not make this challenge, or any other constitutional challenge, during the administrative process does not violate her rights to procedural due process. Procedural due process does not require that administrative hearings consider all possible claims, such as whether a rule violates substantive due process as applied in a particular case. See Amunrud , 158 Wash.2d at 218, 143 P.3d 571 (explaining that the appellant was not denied meaningful review of his license suspension despite the fact that the State did not consider his unusual circumstances because he could file an appeal of the child support order that indirectly led to the suspension with the court that issued it). This is a well-established principle of law:

Although a state law might give an individual a right to some type of fair process or hearing, simply to complain about the effect of a law on the individual, the due process clause of the Fourteenth Amendment does not give an individual a right to a hearing if the person admits that the law applies to him. In other words, once an individual admits that a law applies to him, he has no basis for a procedural due process claim because any fair procedure would, by his own admission, result in a finding that the law applies to him. The individual in such circumstances may make a substantive claim against the law by challenging the rule of law created by the statute or regulation.

ROTUNDA & NOWAK , supra , at 732 ; see also Reno v. Flores , 507 U.S. 292, 308, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (holding that a claim that a procedural system is unconstitutional because it does not allow individualized determination "is just the 'substantive due process' argument recast in 'procedural due process' terms").

¶ 58 Because Fields had the opportunity to make her substantive due process claim in superior court, she was not denied procedural due process.

3. The State has a strong public interest in protecting children and the burden on the State to conduct individualized hearings would be great

¶ 59 The lead opinion admits and the parties do not dispute that the State has a strong interest in protecting children who are taught or cared for in licensed facilities and that the State has an interest in avoiding undue administrative burdens. The lead opinion fails to acknowledge the extent of the increase in the administrative burden on DEL based on its ruling today.

¶ 60 The burden of this decision on the government will be great. The lead opinion claims that because this is an as applied challenge, the result will be only that Fields is entitled to an individualized hearing. Lead opinion at 1007. However, DEL claims in oral argument that it receives 21,000 applications each year. Wash. Supreme Court oral argument, Fields v. Dep't of Early Learning , No. 95024-5 (May 8, 2018), at 22 min., 06 sec., video recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. It is inevitable with that number of applicants that others will also argue that they are rehabilitated despite their convictions for disqualifying crimes. As a consequence of the lead opinion's holding, DEL will have to make a choice each time a person claims to be rehabilitated. It can provide individualized hearings to everyone who makes this claim, including people with disqualifying convictions for child molestation and child rape, as Fields advocated for at oral argument. See id. at 8 min., 19 sec, 15 min., 27 sec. Or, it can deny individualized hearings to other applicants, in which case this court may decide that this denial violated procedural due process rights. By holding that Fields was denied procedural due process in this case, the lead opinion will require the agency to consider the argument that its own rule is unconstitutional as applied. DEL's regulations do not allow parties to make constitutional claims in the administrative process for good reason: questions of constitutionality are best left to the courts.

¶ 61 By expanding the bounds of procedural due process in this way, the lead opinion invites a flood of litigation. Some applicants who are undisputedly disqualified under the rules will file suit, and a superior court will have to determine whether or not the applicant is in the same situation as Fields, or a sufficiently similar situation, to demand the same relief. The court will have to decide whether this person's circumstances are so unique that a failure to consider them would create a great risk of erroneous deprivation of the ability to work in childcare, without ever holding that DEL's disqualification rule violates substantive due process. Even if these decisions could be easily made, having to hear these new challenges would impose a large burden on DEL and the court system. We are required to consider this burden under the third prong of the Mathews test. DEL currently provides a clear list of disqualifying offenses and provides certainty and a quick system of resolution for many cases. The director's list may be both under- and overinclusive in certain instances, but it provides the clear advantage of avoiding the time and expense of individualized hearings in each of these cases. This is why "procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews , 424 U.S. at 344, 96 S.Ct. 893.

¶ 62 I would find that Fields' procedural due process claim fails because as the lead opinion admits, there is no risk of erroneously applying the law at issue here, and the burden on the State of granting individualized hearings would be great.

¶ 63 The lead opinion believes that there is high risk that this rule violates substantive due process as applied to Fields. See lead opinion at 1004-06. I disagree. I now turn to a consideration of Fields' substantive due process claim.

C. Fields' substantive due process claim cannot overcome the heavy presumption of constitutionality inherent in rational basis review

¶ 64 When assessing a substantive due process claim in the context of the right to pursue a trade or profession, we apply a rational basis standard of review. See Amunrud , 158 Wash.2d at 222, 143 P.3d 571. "Under this test, the challenged law must be rationally related to a legitimate state interest." Id. "The rational basis test is the most relaxed form of judicial scrutiny." Id. at 223, 143 P.3d 571. When applying the rational basis test, "we do not require that the government's action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did." Wedges/Ledges of Cal., Inc. v. City of Phoenix , 24 F.3d 56, 66 (9th Cir. 1994). "If it is 'at least fairly debatable' that the [government]'s conduct is rationally related to a legitimate governmental interest, there has been no violation of substantive due process." Halverson v. Skagit County , 42 F.3d 1257, 1262 (9th Cir. 1994) (quoting Kawaoka v. City of Arroyo Grande , 17 F.3d 1227, 1234 (9th Cir. 1994) ).

¶ 65 The question in this case is whether there could be a rational basis for permanently disqualifying Fields based on her second degree robbery conviction without giving her an individualized hearing.

¶ 66 The legislature created DEL to "safeguard and promote the health, safety, and well-being of children receiving childcare and early learning assistance, which is paramount over the right of any person to provide care." Former RCW 43.215.005(4)(c) (2010). The parties do not dispute that this is a legitimate state interest. The lead opinion also concedes that the State has a legitimate interest in avoiding the administrative burden of holding an individualized inquiry in every case. Lead opinion at 1007.

¶ 67 The case then hinges on whether Fields can show that the decision to permanently disqualify her based solely on her conviction for attempted robbery, without an individualized hearing, is not rationally related to these legitimate state interests. Fields cannot show that it is not " 'at least fairly debatable' " that this decision was rational. See Halverson , 42 F.3d at 1262 (quoting Kawaoka , 17 F.3d at 1234 ).

¶ 68 The lead opinion makes several claims about this conviction that go beyond the evidence before us. First, the lead opinion claims that there is no indication that any children were either victims of or witnesses to the attempted robbery. But there is also no indication that children were not around when the attempted robbery took place. There simply is not evidence pointing in either direction on this issue, and this factor should not guide our decision. The lead opinion also states that "because Fields was not convicted of first degree robbery, we know that she was not armed with a deadly weapon, did not display anything that appeared to be a deadly weapon, and did not cause any bodily injury to the victim." Lead opinion at 1005. But this record does not show what Fields did not do. It goes too far to assume that just because Fields was convicted of only second degree robbery, her behavior could not have encompassed elements of more serious crimes.

¶ 69 Even if the lead opinion is correct as to the facts of this particular case, the legislature and this court have acknowledged that second degree "robbery is a most serious offense," State v. Witherspoon , 180 Wash.2d 875, 888, 329 P.3d 888 (2014) ; RCW 9.94A.030(33)(o). It is also on the list of crimes the legislature has designated as a crime against children or persons in RCW 43.43.830(7). An examination of the statute makes clear why. A conviction for robbery requires a finding that the defendant "use[d] or threatened use of immediate force, violence, or fear of injury" to his or her victim. RCW 9A.56.190. This court has held that " '[t]he nature of the crime of robbery includes the threat of violence against another person.' " Witherspoon , 180 Wash.2d at 888, 329 P.3d 888 (quoting State v. Rivers , 129 Wash.2d 697, 713, 921 P.2d 495 (1996) (addressing the claim that the punishment for second degree robbery was cruel and unusual)).

¶ 70 It is not a guarantee that a robbery conviction means a person will pose a danger to children. It may be true that Fields in fact does not pose a danger to children today. But under the rational basis test, we need find only that DEL could have had a rational reason for acting as it did. In general, the disqualification regulations are a reasonable means to advance the State's legitimate interest. The lead opinion argues, however, that Fields' circumstances are so unique that there is a risk that it is irrational to apply this general rule to her. But Fields' circumstances are no different from many other second degree robbery cases. Most second degree robbery cases do not involve children, do not involve a deadly weapon, and do not cause bodily injury to the victim. Nevertheless, in order to be convicted, a court had to be satisfied that Fields herself "use[d] or threatened use of immediate force, violence, or fear of injury" to her victim. RCW 9A.56.190. It is not irrational for DEL to conclude that because Fields has committed this kind of violent crime, she has demonstrated an impulsivity and a willingness to hurt another human such that she should be categorically barred from work in childcare facilities. Therefore, Fields has failed to meet her heavy burden under the rational basis test to show that DEL's decision to permanently disqualify her based on her robbery conviction is not even rationally related to the State's strong interest in protecting children and avoiding the administrative expense of holding an individualized hearing. I would hold that Fields has failed to show that this DEL rule is an unconstitutional violation of her substantive due process rights.

¶ 71 Because Fields had a meaningful opportunity to be heard in order to challenge the fact of her conviction, I would find that rights to procedural due process were satisfied. Because Fields is unable to show that her permanent disqualification based on her past conviction for robbery is not rationally related to the legitimate state interest in protecting children, her substantive due process claim must likewise fail. I respectfully dissent.

Owens, J.

Wiggins, J.

Johnson, J.

      Amici also raise the state equal protection clause and equal rights amendment. Wash. Const . art. I, § 12, art. XXXI. We decline to address these arguments because they are briefed only by amici and are unnecessary to the just resolution of this case.

      We decline to address Fields's state constitutional arguments because the briefing on those arguments is insufficient "to insure that ... our decision will be made for well founded legal reasons." State v. Gunwall , 106 Wash.2d 54, 62-63, 720 P.2d 808 (1986). We also decline to address her federal substantive and facial due process arguments because they are unnecessary to the resolution of this case.

      For the first time at oral argument, DEL contended that if Fields were to obtain a certificate of restoration of opportunity (CROP) pursuant to chapter 9.97 RCW, she would be entitled to an individualized determination by DCYF, making a decision on her constitutional arguments unnecessary. Wash. Supreme Court oral argument, Fields v. Dep't of Early Learning , No. 95024-5 (May 8, 2018), at 31 min., 48 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. After reviewing supplemental briefing from the parties on this issue, we decline to address its merits. Neither DCYF nor the CROP statute existed when Fields was permanently disqualified, and any effect a CROP might have on Fields's situation in the future is entirely hypothetical at this time.

      The federal statute requires permanent disqualification of anyone who has been convicted of the following felony offenses: "murder," "child abuse or neglect," "a crime against children, including child pornography," "spousal abuse," "a crime involving rape or sexual assault," "kidnapping," "arson," and "physical assault or battery." 42 U.S.C. § 9858f(c)(1)(D)(i)-(viii). It also requires permanent disqualification if the person "has been convicted of a violent misdemeanor committed as an adult against a child, including the following crimes: child abuse, child endangerment, sexual assault, or of a misdemeanor involving child pornography." 42 U.S.C. § 9858f(c)(1)(E).

      To the extent that there are other factual circumstances underlying Fields's conviction that are not in the record before us, such facts may be considered when Fields is provided with an individualized determination of her qualifications.

      We respectfully disagree with the dissent's suggestion that we should uphold DEL's procedural regulations as applied to Fields to avoid the added burdens that will result from others seeking relief pursuant to our decision today. See dissent at 1012-13. To the extent that DEL's procedures create a high likelihood of producing arbitrary results in other cases, these added burdens are constitutionally required.

      The Department of Early Learning is now known as the Department of Children, Youth, and Families. In the interests of clarity, I will refer to the Department as DEL, as it was known at the time of the events in this case.

      I agree that we should not address Fields' state constitutional arguments as she did not sufficiently argue or brief them below. See State v. Gunwall , 106 Wash.2d 54, 62, 720 P.2d 808 (1986). I also agree that we should decline to address the equal protection arguments raised by amici in the first instance. See City of Seattle v. Evans , 184 Wash.2d 856, 861 n.5, 366 P.3d 906 (2015).

      Because Fields admitted to the disqualifying robbery conviction and DEL elected to move for summary judgment on that ground, it is not clear from the record whether Fields' request for reconsideration has ever been considered on its merits. However, even in that request, Fields did not challenge the fact that she had a conviction for attempted second degree robbery.

      The Department of Early Learning is now part of the Department of Children, Youth, and Families, but I will refer to it as DEL in this concurrence.

      See John E. Nowak & Ronald D. Rotunda, Constitutional Law § 11.4, at 370, § 14.4, at 601 (4th ed. 1991), Washington v. Glucksberg , 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ; Seeley v. State , 132 Wash.2d 776, 795, 940 P.2d 604 (1997) ; In re Pers. Restraint of Metcalf , 92 Wash. App. 165, 963 P.2d 911 (1998).

      In response to the dissent's criticism of the lead opinion's logic on this point, dissent at 1014-16, I note that it is only the necessarily adjudicated facts of the crime that we can consider at this point, see Blakely v. Washington , 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and those necessarily adjudicated facts do not involve children, deadly weapons, or bodily injury.

      There was a discussion in oral argument and briefing about the possibility that Fields would be able to become qualified via the certificate of restoration of opportunity act (CROP), RCW 9.97.010 and .020. I agree with the lead opinion that this is pure speculation at this stage and is therefore not relevant to the decision we reach today. Fields does not currently have a CROP, and whether or not Fields would qualify for a CROP is an open question. CROP does not answer the question before us today because Fields is claiming that DEL violated her due process rights by failing to provide her with an individualized hearing based solely on her claim of rehabilitation. Whether or not the new Department of Children, Youth, and Families would provide her with an individualized hearing if she obtained a CROP does not resolve this question.

      At times Fields' argument appears to suggest the rule is not related to DEL's mission in protecting children. See Hi-Starr, Inc. v. Liquor Control Bd. , 106 Wash.2d 455, 459, 722 P.2d 808 (1986) ("An agency's rules must be encompassed within its statutory framework."). Whether DEL's adoption of the rule exceeded its delegated authority was not briefed by the parties and is not before the court.


source: Caselaw Access Project

author: MADSEN, J. GORDON McCLOUD, J. (concurring)

license: Public Domain

text:
    STATE of Washington, Respondent, v. Diana Joline MERRITT, Petitioner,
    Douglas Ross White, Defendant.
    No. 95115-2
    Supreme Court of Washington.
    Argued October 9, 2018 Filed February 21, 2019
    Casey Grannis, Nielsen Broman & Koch, PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, for Petitioner.
    David M. Seaver, Jennifer H.S. Atchison, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondent.
   MADSEN, J.

¶ 1 Diana Merritt was convicted of 10 counts of mortgage fraud in 2015. Although the crimes charged occurred between 2008 and 2009, the criminal activity was not actually discovered by law enforcement until 2014. Merritt argues the charging document did not sufficiently provide information that the alleged charges occurred within the statute of limitations as required by RCW 10.37.050(5). Merritt also argues that the State's alleged failure to comply with the statute of limitations constitutes a due process violation because the statute of limitations is an essential element of which Merritt must be given notice.

¶ 2 The Court of Appeals affirmed Merritt's convictions. We hold that the information is sufficient and affirm the Court of Appeals.

FACTS

¶ 3 In 2004, Tom Reed employed Douglas White as an appraiser trainee at his company, Washington Appraisal Reviews Inc. As a trainee, White was permitted to write appraisal reports, but he was not permitted to sign the reports. Instead, Reed reviewed White's reports, and if satisfactory, Reed would sign the report using password protected software that generated an electronic signature. White subsequently failed the licensing exam, and he did not retake it. He stopped working for Reed in 2008.

¶ 4 In 2010, Reed discovered that someone submitted appraisals using his electronic signature and license number. Reed contacted federal authorities in light of this discovery. Reed met with an agent of the United States Department of Housing and Urban Development's Office of Inspector General and identified White as one of only two people who could possibly have had access to Reed's electronic signature.

¶ 5 In late 2013 or early 2014, the agent obtained copies of White's bank records, which showed several financial transactions between White and Merritt. Merritt was White's girlfriend. The agent learned that Merritt operated a mortgage brokerage business, Merritt Home Finance, and subsequently obtained a search warrant for the corporation.

¶ 6 The search warrant was executed in June 2014, and the agent uncovered loan originations performed by Merritt that included appraisals bearing Reed's name and signature but were actually performed by White. A forensic search of White's and Merritt's computers revealed several e-mail exchanges between White and Merritt in which Merritt asked White to perform appraisals for her clients. E-mails with copies of Reed's license, which White sent to Merritt, were also uncovered.

¶ 7 In 2015, Merritt was charged by amended information with 9 counts of second degree identity theft and 11 counts of mortgage fraud. Clerk's Papers (CP) at 48-77. Merritt waived her right to a jury, and her case proceeded to a bench trial. Merritt was found guilty of 10 counts of mortgage fraud.

¶ 8 Prior to the entry of the trial court's written findings of fact and conclusions of law, Merritt's substitute counsel filed a motion for reconsideration and a supplemental memorandum supporting reconsideration, arguing, among other things, that Merritt should be acquitted of the mortgage fraud charges because "the State has failed to prove beyond a reasonable doubt when the alleged crimes were or could have been discovered, and has therefore failed to prove that any of them occurred within the statute of limitations." CP at 319. The trial court rejected this argument, holding that the statute of limitations was satisfied because Merritt's charging occurred within three years of discovery.

¶ 9 Merritt appealed, and the Court of Appeals affirmed the trial court, holding that the charging document was sufficient. State v. Merritt , 200 Wash. App. 398, 412-13, 402 P.3d 862 (2017). We granted review. State v. Merritt , 189 Wash.2d 1039, 409 P.3d 1069 (2018).

ANALYSIS

¶ 10 The mortgage fraud counts in the amended information, which are virtually identical to one another, state:

That the defendants DOUGLAS ROSS WHITE AND DIANA JOLINE MERRITT and each of them in King County, Washington, between June 12, 2008 and August 6, 2008, in connection with making, brokering, obtaining, or modifying a residential mortgage loan, did directly or indirectly: (1)(a) knowingly employ any scheme, device, or artifice to defraud or materially mislead a borrower, to-wit: Kirk Lakey, during the lending process; and (b) knowingly defraud or knowingly materially mislead a lender, or any person, to wit: Kirk Lakey, in the lending process, or knowingly engage in any unfair or deceptive practice toward any person, to-wit: Kirk Lakey, in the lending process; and (c) knowingly obtain property by fraud or material misrepresentation in the lending process; and (2) knowingly make any misstatement, misrepresentation, or omission during the mortgage lending process knowing that it might be relied on by a mortgage lender, borrower, or any other party to the mortgage lending process, to-wit: Kirk Lakey; and (3) knowingly use or facilitate the use of any misstatement, misrepresentation, or omission, knowing the same to contain a misstatement, misrepresentation, or omission, during the mortgage lending process with the intention that it be relied on by a mortgage lender, borrower, or any other party to the mortgage lending process, to-wit: Kirk Lakey; and (4) knowingly receive any proceeds or anything of value in connection with a residential mortgage closing that the defendant knew resulted from a violation of RCW 19.144.080 ;
Contrary to RCW 19.144.080 and 19.144.090, and against the peace and dignity of the State of Washington.
And further do allege the crime was a major economic offense or series of offenses, so identified by consideration of the following: multiple incidents per victim, monetary loss substantially greater than typical for the offense, occurred over a long period of time, and the defendants used their position of trust to facilitate the commission of the current offense, under the authority of RCW 9.94A.535(3)(d).

CP at 70-71.

Constitutional Sufficiency

¶ 11 Merritt first argues that the amended information is not constitutionally sufficient. Suppl. Br. of Pef'r (Corrected) at 9. Specifically, Merritt argues:

A charging document is constitutionally defective if it fails to include all "essential elements" of the crime. State v. Vangerpen , 125 Wn.2d 782, 787, 888 P.2d 1177 (1995) ; Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ; U.S. Const. Amend. VI ; Wash. Const. Art. I, § 22.

Id. " '[E]ssential elements' include only those facts that must be proved beyond a reasonable doubt to convict a defendant of the charged crime." State v. Powell , 167 Wash.2d 672, 683, 223 P.3d 493 (2009) (plurality opinion) (emphasis added) (citing State v. McCarty , 140 Wash.2d 420, 425, 998 P.2d 296 (2000) ), overruled on other grounds by State v. Siers , 174 Wash.2d 269, 274 P.3d 358 (2012). The primary reason for the inclusion of essential elements in a charging document is "to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik , 117 Wash.2d 93, 97, 812 P.2d 86 (1991). Such notice is important so that the defendant "will be able to prepare and mount a defense at trial." McCarty , 140 Wash.2d at 425, 998 P.2d 296.

¶ 12 The Court of Appeals rejected Merritt's constitutional sufficiency argument, holding that "[t]he statute of limitations is not an essential element of a crime." Merritt , 200 Wash. App. at 400, 402 P.3d 862. The information here clearly states each element of the mortgage fraud claims of which Merritt was accused, meaning the alleged defect in the amended information did not affect Merritt's notice of the charges brought against her or her ability to prepare and mount a defense.

¶ 13 Merritt relies on State v. Schaffer , where the court held, "It is essential ... to allege facts sufficient to show that the acts committed which constituted the crime were committed within the time limited by law for the commencement of an action therefor." 31 Wash. 305, 310, 71 P. 1088 (1903) (emphasis added). This reliance is misplaced. The Schaffer court was referencing the statute currently codified at RCW 10.37.050, not analyzing whether the statute of limitations was an essential element as it pertains to the Sixth Amendment to the United States Constitution or article I of the Washington State Constitution.

¶ 14 Merritt also suggests that the statute of limitations is an essential element of the crime charged because "[t]he facts necessary for conviction and the fact of compliance with the statute of limitations share other salient characteristics," and the jury must decide the underlying factual matters pertaining to the statute of limitations. Suppl. Br. of Pet'r (Corrected) at 14. In support for her contentions, Merritt cites State v. Newton , 39 Wash. 491, 493, 81 P. 1002 (1905), where the court held that determining whether the State was barred by the statute of limitations was a question for the jury. Newton presents a very limited circumstance in which the jury may be called to assess the facts underlying a statute of limitations issue. Specifically, in Newton, the timing of the incident giving rise to the lawsuit was disputed by both parties, making compliance with the statute of limitations impossible to assess. This court has held that "[w]hether the statute of limitations bars a suit is a legal question, but the jury must decide the underlying factual questions unless the facts are susceptible of but one reasonable interpretation." Goodman v. Goodman , 128 Wash.2d 366, 373, 907 P.2d 290 (1995).

¶ 15 Issues surrounding the statute of limitations concern the jury only in limited instances where factual determinations that are material to the commencement of the action are disputed. In most cases, the statute of limitations is a mixed question of law and fact that the court will be able to access as a part of its gatekeeping function. Washburn v. Beatt Equip. Co. , 120 Wash.2d 246, 263, 840 P.2d 860 (1992) ("The trial court correctly concluded that the jury should not be instructed about the statute of [limitations], as the question whether it bars suit is a legal matter for the court."). Merritt fails to show how a jury's involvement in issues concerning the statute of limitations requires this court to hold that the statute of limitations is an essential element of the crimes charged.

¶ 16 While the sufficiency of a charging document implicates due process concerns, the statute of limitations itself is a statutory issue that only "affects the authority of a court to sentence a defendant for a crime." State v. Peltier , 181 Wash.2d 290, 298, 332 P.3d 457 (2014). Including facts related to the statute of limitations in the information may put a defendant on notice of a defense based on the statute of limitations, but their omission does not render the amended information constitutionally deficient.

Statutory Requirements

¶ 17 Merritt also contends that the amended information filed against her does not comply with the requirements of RCW 10.37.050, which states:

The indictment or information is sufficient if it can be understood therefrom-
....
(5) That the crime was committed at some time previous to the finding of the indictment or filing of the information, and within the time limited by law for the commencement of an action therefor.

The relevant statute of limitations in this case, RCW 19.144.090(2), states:

No information may be returned more than (a) five years after the violation, or (b) three years after the actual discovery of the violation, whichever date of limitation is later.

Because the amended information was filed in 2015, Merritt argues that the amended information does not show on its face that it was filed within five years of Merritt's crimes or within three years of the actual discovery of Merritt's crimes. Suppl. Br. of Pet'r (Corrected) at 3. Merritt's crimes occurred between 2008 and 2009 but were discovered after a warrant issued in 2014 revealed the crimes. CP at 48-77; Verbatim Report of Proceeding (VRP) (Sept. 15, 2016) at 816.

¶ 18 Here, the State timely filed within the statutory period because discovery of Merritt's crimes occurred in 2014, which is within RCW 19.144.090 's three year limit. VRP (Sept. 15, 2016) at 846, 886-914. At any rate, the issue of whether the State timely filed the amended information is not before this court. Rather, the issue is whether the State's amended information complies with RCW 10.37.050 and RCW 19.144.090. Merritt appears to argue that to comply with the statute, the State must include RCW 19.144.090 's language and facts regarding the 2014 warrant and subsequent actual discovery of Merritt's crimes. Suppl. Br. of Pet'r (Corrected) at 11.

¶ 19 Notably, RCW 10.37.050 provides no remedy for the failure of an information to show compliance with the statute of limitations. RCW 10.37.050 's main purpose is "to inform the defendant of what crime he is charged, so that he may prepare his defense." State v. Womack , 4 Wash. 19, 24, 29 P. 939 (1892). To the extent the rule codifies due process requirements for notice, the information is sufficient as discussed above. But, even if the statute adds additional protection not required by the constitution, this court does not typically fashion remedies where one is not provided in the relevant statute, unless constitutional protections require a remedy. See State v. Breitung , 173 Wash.2d 393, 402, 267 P.3d 1012 (2011) (holding that a court's compliance with RCW 9.41.047(1) is necessary to ensure the Second Amendment rights of individuals and failure to provide a remedy for violation of the statute "ignores the statute's mandate and deprives the statute of any real bite").

¶ 20 Merritt argues, though, that Schaffer requires the State "to allege facts sufficient to show that the acts committed which constituted the crime were committed within the time limited by law for the commencement of an action therefor." 31 Wash. at 310, 71 P. 1088. Schaffer is distinguishable. Specifically, Schaffer involved a nuisance action where the information alleged "that the respondents did at some past time create and maintain a nuisance" but did not identify when the alleged nuisance commenced. Id. at 310-11, 71 P. 1088. The court found this omission to be fatal to the State's charge because "[t]he effect of the charge is that the respondents are now committing the acts complained of (that is, they were committing them at the time the complaint was filed), but whether they had committed them before that time, and within the statute of limitations, is not charged." Id. at 311-12, 71 P. 1088.

¶ 21 Considering the amended information here, it is unclear how Merritt, a defendant who is aware of all of the facts and circumstances surrounding the case, cannot sufficiently understand "[t]hat the crime was committed at some time previous to the finding of the indictment or filing of the information, and within the time limited by law" based on the information provided. RCW 10.37.050(5). Indeed, the information contains the dates of the alleged crimes and includes a reference to the statute of limitations, RCW 19.144.090, which was sufficient to alert the defendant to a possible statute of limitations issue.

¶ 22 To the extent the information does not mention the date of the warrant that led to discovery of the crimes, such a technical defect does not warrant reversal. Merritt was put on notice and could have objected to the information, moved to dismiss the charges as beyond the statute of limitations, or requested a bill of particulars to cure the alleged defect. This court has held, "If an information states each statutory element of a crime but is vague as to some other matter significant to the defense, a bill of particulars can correct the defect." State v. Noltie , 116 Wash.2d 831, 843, 809 P.2d 190 (1991). Merritt failed to object to the information or request a bill of particulars.

CONCLUSION

¶ 23 Compliance with the statute of limitations is a statutory requirement, not a constitutional requirement. The alleged information was sufficient to put Merritt on notice of the elements of the charged crimes and the possible statute of limitations defect. We affirm the Court of Appeals' decision.

WE CONCUR:

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

Yu, J.

GORDON McCLOUD, J. (concurring)

¶ 24 I agree that the amended information is constitutionally sufficient. But I disagree that Diana Merritt could have understood from the amended information that her violation was discovered within three years of commencement of this action.

¶ 25 Under RCW 10.37.050, a defendant must be able to look at the information and "under[stand] therefrom ... [t]hat the crime was committed ... within the time limited by law for the commencement of an action therefor." The law limits "commencement of an action" to "five years after the violation" or "three years after the actual discovery of the violation, whichever date of limitation is later." RCW 19.144.090(2). Here, as the majority notes, we are concerned with the latter limitation. Majority at 1020.

¶ 26 In interpreting a statute, we strive to "ascertain and carry out the legislature's intent." State v. Bigsby , 189 Wash.2d 210, 216, 399 P.3d 540 (2017) (citing Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002) ). If the legislature's intent is clear from the statute's plain language, then we give effect to that plain language. Id. According to RCW 10.37.050 's plain language, a defendant must be able to look at the face of the information and "under[stand] therefrom" whether it complies with the statute of limitations. There is no way Merritt, this court, or anyone else can look at the amended information and understand "therefrom" that the State commenced the action within three years of its discovery of the violation. As Merritt notes, the information "does not state the violation was discovered within that three-year period, and no facts are alleged by which one could arrive at the conclusion." Suppl. Br. of Pet'r (Corrected) at 8. All the State had to do was list the date of discovery of the violation, allowing Merritt to compare that date with the date of the filing. Because it failed to do so, it failed to comply with RCW 10.37.050, rendering the amended information statutorily deficient.

¶ 27 The majority states that "it is unclear how Merritt, a defendant who is aware of all of the facts and circumstances surrounding the case, cannot sufficiently understand '[t]hat the crime was committed at some time previous to the finding of the indictment or filing of the information, and within the time limited by law' based on the information provided." Majority at 1021 (alteration in original) (quoting RCW 10.37.050(5) ). The majority thus takes the position that because Merritt was charged, she must have known all about the business crime that she was charged with-despite the fact that at the time of charging she was entitled to a presumption of innocence, not guilt. I disagree. According to the statute, a defendant must be able to look at the information and understand "therefrom" that the State alleges the crime occurred within the statute of limitations. It does not matter that Merritt may have known when her violation was discovered; the statute requires that fact to be clear on the face of the information. And the legislature must have adopted that rule for a purpose, i.e., to put the burden of showing timeliness on the State and not replace it with a presumption of guilt.

¶ 28 The majority also claims that the information sufficiently alerted Merritt to "a possible statute of limitations issue" because it "contains the dates of the alleged crimes and includes a reference to the statute of limitations, RCW 19.144.090." Majority at 1021. It is unclear how knowing the dates of the alleged crimes helps Merritt here, where the relevant date is the date of actual discovery of the violation. It is likewise unclear how a reference to the statute of limitations satisfies RCW 10.37.050, which requires the State to allege facts, not legal conclusions. Merritt could certainly have researched the cited statute. She would have learned that the State should have brought the action no more than "five years after the violation" or "three years after the actual discovery of the violation, whichever date of limitation is later." RCW 19.144.090(2). But she still would have been clueless as to the relevant date in her case: the date of actual discovery of the violation.

¶ 29 As to remedy, the majority notes that RCW 10.37.050 fails to provide one and claims that "this court does not typically fashion remedies where one is not provided in the relevant statute, unless constitutional protections require a remedy ."

Majority at 1020-21 (emphasis added) (citing State v. Breitung , 173 Wash.2d 393, 402, 267 P.3d 1012 (2011) ). This is incorrect.

¶ 30 For example, in In re Personal Restraint of Vega , we fashioned a statutory remedy in the absence of underlying constitutional concerns. 118 Wash.2d 449, 450-51, 823 P.2d 1111 (1992) (per curiam). There, we analyzed the statute that required the Department of Corrections to "attempt to advise" convicted criminal defendants of the new one-year time bar for filing personal restraint petitions but failed to provide a remedy for failure to do so. Id. at 450, 823 P.2d 1111 (emphasis omitted) (quoting RCW 10.73.120 ). It was undisputed that the department failed even to attempt to advise Vega of the new time bar. Id. Despite the absence of a statutory remedy, we treated Vega's otherwise untimely personal restraint petition as timely. Id. at 451, 823 P.2d 1111.

¶ 31 In Breitung , the only case the majority relies on to support its point, we broadly held that " '[r]elief consistent with the purpose of the statutory requirement must be available where the statute has been violated.' " 173 Wash.2d at 403, 267 P.3d 1012 (quoting State v. Minor , 162 Wash.2d 796, 803-04, 174 P.3d 1162 (2008) ); majority at 1020-21. This broad holding was premised on the observation that "failure to provide a remedy for what is a clear statutory violation ... ignores the statute's mandate and deprives the statute of any real bite." Id. at 402, 267 P.3d 1012. Although underlying constitutional concerns undoubtedly reinforce the need for a remedy, it does not follow that a lack of constitutional concerns means that the courts should not provide a remedy. See Vega , 118 Wash.2d at 450-51, 823 P.2d 1111. Either way, relief consistent with the statute's purpose must be available, and we hesitate to deprive a statute of any real bite.

¶ 32 In fact, we have fashioned a remedy for violation of the very statute at issue here . State v. Schaffer , 31 Wash. 305, 71 P. 1088 (1903). The defendants in Schaffer were arrested and charged with "creating and maintaining a nuisance." Id. at 305, 71 P. 1088. The defendants demurred, arguing that the charging document failed to state the time when the offense was committed and thus did not comply with the statute. Id. at 305-06, 310, 71 P. 1088. The trial court rejected this argument, and the case proceeded to trial, where the defendants lost. Id. at 306, 71 P. 1088. The appellate court reversed and dismissed the proceedings. Id. We affirmed this dismissal-despite the absence of a statutory remedy-and held that the charging document was insufficient under the statute because it failed to show that the alleged wrongdoing occurred prior to the filing of the complaint "and within the statute of limitations." Id. at 311-12, 71 P. 1088.

¶ 33 So a remedy for violation of the statute does exist. Nevertheless, Merritt is not entitled to dismissal. She did not demur before trial, as the defendants in Schaffer did. Nor did she request a bill of particulars. See State v. Noltie , 116 Wash.2d 831, 843-44, 809 P.2d 190 (1991) (noting that if the information is constitutionally sufficient but "vague as to some other matter significant to the defense, ... a defendant is not entitled to challenge the information on appeal if he or she has failed to timely request a bill of particulars"). In fact, Merritt did not challenge the information until after the case was tried and she was found guilty. Majority at 1017-18. This challenge came too late.

¶ 34 In sum, the State failed to comply with RCW 10.37.050. And we do provide a remedy for such a violation, as long as the defendant timely objects. But here, Merritt failed to timely object to the statutorily deficient information. For this reason, I concur.

González, J.

Fairhurst, C.J.

      White, who was charged with 55 counts involving identity theft and mortgage fraud, pleaded guilty before the start of Merritt's trial. CP at 48-77; Verbatim Report of Proceedings (Sept. 2, 2016) at 101.

      The names of the borrowers and alleged dates of the particular crimes are the only distinguishing factors.

      Merritt also cites an appellate case, State v. Dash , 163 Wash. App. 63, 259 P.3d 319 (2011). Like Schaffer , this case also does not discuss the statute of limitations with respect to the Sixth Amendment to the United States Constitution or article I of the Washington State Constitution, nor does it address whether the statute of limitations is an essential element of the crime charged.

      The concurrence also argues the date of discovery must be explicitly stated on the face of the charging document. Concurrence at 1022. However, the statute at issue is simply a notice statute that requires it be sufficiently understood the alleged offense occurred prior to the charging information and within the time prescribed by law. The information here sufficiently provides the defendant that notice. If there were any concerns that the statute of limitations had been violated, the charging information should have been challenged at that time.

      Merritt also cites an appellate case, State v. Glover , 25 Wash. App. 58, 61-62, 604 P.2d 1015 (1979), which held, "An indictment or information which indicates that the offense is barred by the statute of limitation fails to state a public offense." However, Merritt misconstrues this holding to mean "that a charging document fails to state a public offense when it does not show the charges were filed within the limitation period." Suppl. Br. of Pet'r (Corrected) at 16. Indeed, this proposition in not stated in Glover .

      Although the concurrence asserts we have created a remedy for violations of RCW 10.37.050 in Schaffer , concurrence at 1023, that dismissal was based on a lower court's decision to reverse a trial court's decision after a timely objection to the charging document. See Schaffer , 31 Wash. at 306, 71 P. 1088. It is within our authority to review the decisions of lower courts. But a review of a trial court's decision is not a remedy for a statutory violation.

      At that time, what is now codified at RCW 10.37.050(5) was codified at Bal. Code § 6850(5).