author: González, J. STEPHENS, J. (dissenting)

text:
    CITY OF SHORELINE, Respondent, v. Solomon Dion MCLEMORE, Petitioner.
    No. 95707-0
    Supreme Court of Washington.
    Argued October 18, 2018 Filed April 18, 2019 As Amended April 19, 2019
    David Christopher lannotti, Stewaid Macnichols Harmell Inc. PS, 655 W. Smith Street, Suite 210, Kent, WA 98032-4477, for Petitioner.
    Carmen Marie Mcdonald, City Prosecutors Office, 17553 15th Avenue NE, Shoreline, WA 98155-3801, for Respondent.
    Nancy Lynn Talner, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, Erin Irene Moody, Attorney at Law, P.O. Box 22673, Seattle, WA 98122-0673, Nicole Lea Beges, Attorney at Law, 9601 Steilacoom Blvd. SW, Building 25, Lakewood, WA 98498-7213, for Amicus Curiae (American Civil Liberties Union of Washington).
    Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers)
    Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place South, #610, Seattle, WA 98104-2626, for Amicus Curiae (Washington Defender Association).
   González, J.

¶ 1 This case involves a clash of deeply significant public policies. As a modem society, we condemn domestic violence and have vested police with the power and duty to investigate and to intervene. As a society governed by our constitutions, there are limits on the State's power to punish speech, to demand an individual's active cooperation, or to intrude into a home.

¶ 2 Our homes hold a special place in our constitutional jurisprudence. It is the first place specifically called out in our constitution, and it is called out to give it special protection. Under our constitution, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." CONST. art. I, § 7 (emphasis added). "In no area is a citizen more entitled to his privacy than in his or her home. For this reason, 'the closer officers come to intrusion into a dwelling, the greater the constitutional protection'." State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994) (citation omitted) (quoting State v. Chrisman, 100 Wash.2d 814, 820, 676 P.2d 419 (1984) ). Officers must have a warrant or a well-established exception to the warrant requirement before intruding into a home. Id. at 181, 867 P.2d 593. Our constitutions also rigorously protect speech, even obnoxious speech. State v. E.J.J., 183 Wash.2d 497, 501, 354 P.3d 815 (2015).

¶ 3 Here, a bystander called 911 about a loud, late-night argument in a home. Police officers, appropriately concerned about domestic violence, went to that home to investigate. They heard an argument and demanded entry.

Solomon McLemore and his girlfriend, Lisa, lived in that home, refused to open their door, and told the officers to go away. Instead, the officers broke down that door under a well-established exception to the warrant requirement: community caretaking. However, when the officers found that no one was injured and that there was no evidence of any other crime, they arrested McLemore for obstruction of a law enforcement officer. This arrest appeared to be mostly based on McLemore's belligerent refusal to open his door. He was subsequently convicted of the charge. We must decide whether, under the obstruction statute as properly limited to its constitutional scope and the facts of this case, the conviction may stand. It may not.

FACTS

¶ 4 Late one night, a bystander heard a disturbance and called 911. Three Shoreline police officers responded and heard the sounds of an argument coming from an apartment above a dry cleaner's shop. Police heard a woman shouting, " '[Y]ou can't leave me out here,' " " 'I'm going to call the police,' " and "something along the lines of 'I'm reconsidering our relationship'." Clerk's Papers (CP) at 149. The officers knocked on the door of the apartment, rang the doorbell, announced they were Shoreline police, and demanded to be let in. No one in the apartment replied, but the sounds of the argument stopped. Using amplification and much profanity, the officers insisted they would break down the door if they were not let in. McLemore told them to leave. After several minutes of this, police heard the sound of breaking glass. The officers started to break down the door.

¶ 5 McLemore and Lisa lived together with their six month old son in that apartment. The couple had had a difficult night. McLemore had accidentally broken a window, and Lisa was upset about having to repair it. McLemore had told Lisa he would clean up the glass but instead went to play pool with a friend. When he came home at about one o'clock in the morning, he and Lisa argued. Since their child was asleep, they took their argument outside to a balcony. McLemore claimed he accidentally locked Lisa outside on that balcony when he came in. Minutes after he let Lisa back in, the police started banging on their door. McLemore told the officers that they were okay, that he was recording the incident, and that they should leave. At McLemore's insistence, Lisa confirmed that she was fine and that she also wanted the officers to leave. Instead, rightfully concerned about domestic violence, the officers broke down her door.

¶ 6 After the door was "completely destroyed," CP at 152, the officers entered with their guns drawn, handcuffed McLemore, and put Lisa and McLemore into separate police cars. Officers determined Lisa was not injured. Lisa told the officers that the couple had not opened the door because they were afraid one of them would be arrested if they did. Officers arrested McLemore for obstruction of a law enforcement officer under RCW 9A.76.020. No other charges were filed.

¶ 7 Before trial, McLemore moved to dismiss the charge on the grounds the city had offered "no evidence that McLemore willfully hindered or delayed an officer's lawful investigation as the law does not require any duty of a person to act in a warrantless search of their residence." CP at 139. The judge denied the motion, concluding that the charges were sustainable under State v. Steen, 164 Wash.App. 789, 265 P.3d 901 (2011). The judge also excluded any defense related to McLemore's assertion that the officers did not have the right to enter without a warrant.

¶ 8 In closing argument, the city stressed that most of the elements were not in dispute. Instead, the "element that gets the bulk of the argument ... and the bulk of the scrutiny in this testimony was did the defendant willfully hinder or delay or obstruct the discharge of [officers'] duties." CP at 468. The city characterized McLemore's refusal to open the door as a willful obstruction. Defense counsel argued that "[it is] not McLemore's job to help" the police and that "he did nothing. He simply sat in his house." Id. at 478.

¶ 9 During deliberations, the jury sent out one question: "Does a person have the legal obligation to follow the police instructions, in this case?"Id. at 43. The court responded, "[Y]ou have been provided with the law in this case in the jury instructions." Id. The instructions, including the to-convict instruction, mirrored the pattern jury instructions, and no specific instruction on a citizen's obligation to open a door to a warrantless entry was included. See, e.g., id. at 59; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 120.02, at 519 (4th ed. 2016). McLemore was convicted.

¶ 10 McLemore appealed, first to the superior court, then to the Court of Appeals, and finally here. We granted review. City of Shoreline v. McLemore, 191 Wash.2d 1001, 422 P.3d 916 (2018).

ANALYSIS

¶ 11 We stress that we are not asked to determine whether the officers' forced entry in McLemore's home was lawful. McLemore, wisely, does not challenge the trial court's conclusion that the officers were exercising their community caretaking function at the time. Based on this record, the officers had the lawful power to enter McLemore's home to assess whether domestic violence had occurred and to take appropriate action if it had. See Danny v. Laidlaw Transit Servs., Inc., 165 Wash.2d 200, 208-19, 193 P.3d 128 (2008) (plurality opinion) (surveying Washington's public policy of combating domestic violence); ch. 10.99 RCW (establishing that domestic violence is a serious crime and setting forth minimum standards for official responses). Analogously, officers have the statutory authority to break into a home to make an arrest "if, after notice of [their] office and purpose, [they] be refused admittance." RCW 10.31.040. It is undisputed that the officers here responded appropriately and lawfully to a potential domestic violence situation in which both Lisa and the child reasonably appeared in immediate danger.

¶ 12 But McLemore was not charged with a crime of domestic violence. Instead, he was charged with violating RCW 9A.76.020(1), which provides in relevant part that "[a] person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties." In effect, McLemore contends that this statute cannot be constitutionally applied to his inaction. "We review such constitutional challenges de novo. In the context of the First Amendment, this requires a review of the record to determine that the conviction could not have been based only on constitutionally protected speech." E.J.J., 183 Wash.2d at 501, 354 P.3d 815 (citation omitted) (citing State v. Abrams , 163 Wash.2d 277, 282, 178 P.3d 1021 (2008) ); U.S. CONST. amend. I.

¶ 13 This court has long "noted that [obstruction] statutes can 'result in disturbing intrusions into an individual's right to privacy and can implicate other rights specifically enumerated in the Bill of Rights.' " State v. Williams, 171 Wash.2d 474, 481, 251 P.3d 877 (2011) (quoting State v. White, 97 Wash.2d 92, 97, 640 P.2d 1061 (1982) ). "To save the obstruction statute from being unconstitutionally overbroad in a First Amendment setting, we have construed the statute narrowly. Our cases have consistently required conduct in order to establish obstruction of an officer." E.J.J., 183 Wash.2d at 501-02, 354 P.3d 815 (citing Williams, 171 Wash.2d at 485, 251 P.3d 877 ). We narrowly construe the obstruction statute even when the parties are not directly raising a constitutional challenge. Williams, 171 Wash.2d at 477-78, 251 P.3d 877.

¶ 14 We use this narrow construction for two reasons. First, we are required to interpret statutes as constitutional, if possible, and our narrowing construction accomplishes this task. See In re Pers. Restraint of Matteson, 142 Wash.2d 298, 307, 12 P.3d 585 (2000) (quoting Addleman v. Bd. of Prison Terms & Paroles, 107 Wash.2d 503, 510, 730 P.2d 1327 (1986) ). We also limit the scope of this statute to avoid chilling the exercise of constitutional rights. See State v. Rupe, 101 Wash.2d 664, 705, 683 P.2d 571 (1984) (plurality opinion) (citing State v. Frampton, 95 Wash.2d 469, 627 P.2d 922 (1981) ); see also E.J.J., 183 Wash.2d at 501-02, 354 P.3d 815.

¶ 15 Criminalizing the refusal to open one's own door to a warrantless entry would be enormously chilling and inconsistent with our deeply held constitutional values. As the United States Supreme Court observed:

From earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle. As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man's house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle:
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter-all his force dares not cross the threshold of the ruined tenement!"

Miller v. United States, 357 U.S. 301, 306-07, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (footnotes omitted) (quoting THE OXFORD DICTIONARY OF QUOTATIONS 379 (2d ed. 1953)). Even under the more limited protections afforded by the Fourth Amendment than our own constitution, "[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak." Kentucky v. King, 563 U.S. 452, 469-70, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion)); U.S. CONST. amend. IV ; see also United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir. 1978) (holding the right to refuse a warrantless entry is not a crime or evidence of a crime (citing Camara v. Mun. Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ; District of Columbia v. Little, 339 U.S. 1, 7, 70 S.Ct. 468, 94 L.Ed. 599 (1950) )). Similarly, our Court of Appeals found the refusal to allow an officer into a home without a warrant was not sufficient to sustain an obstruction conviction. State v. Bessette, 105 Wash.App. 793, 799, 21 P.3d 318 (2001). The officer had been pursuing a juvenile who was spotted holding a beer bottle. Id.

¶ 16 Under the limited construction of the statute required by our constitution, a defendant's conduct that amounts to passive delay will not sustain an obstruction charge. As we ruled recently in a case where a juvenile defendant refused to retreat into his home while police were arresting his sister in the front yard:

That E.J.J.'s behavior may have caused a minor delay is of no import. Although the officer's request that E.J.J. return to his home and close both doors might have been an attempt for a more convenient resolution of the situation, "[s]tates cannot consistent[ ] with our Constitution abridge those freedoms to obviate slight inconveniences or annoyances."

E.J.J., 183 Wash.2d at 506, 354 P.3d 815 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 501-02, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ). Lack of cooperation does not become obstruction of justice merely because it causes the police delay. "As a general proposition, there is no obligation to cooperate with the police." State v. D.E.D., 200 Wash.App. 484, 494, 402 P.3d 851 (2017) (citing State v. Budik, 173 Wash.2d 727, 272 P.3d 816 (2012) ). "The duty imposed by the obstructing statute is not to hinder or delay the police investigation; there is no duty to cooperate." Id. at 495, 402 P.3d 851 (citing State v. Holeman, 103 Wash.2d 426, 693 P.2d 89 (1985) ). While cooperation with the police might have been wise, the failure to do so was not criminal under these circumstances.

¶ 17 The city analogizes this to cases where officers had a warrant or other court order. But the officers here did not have a warrant or other court order. No impartial magistrate authorized the intrusion. These cases are not helpful to the city. See, e.g., State v. Miller, 74 Wash.App. 334, 873 P.2d 1197 (1994). The city also analogizes to cases where a defendant actively resisted officers' warrantless entry. In State v. Line, the defendant physically struggled with officers, ripping their clothing. 121 Haw. 74, 81, 214 P.3d 613 (2009). In Dolson v. United States, the court stressed that "one has a Fourth Amendment right to deny police officers and other government officials a warrantless entry into one's home, and thus one's assertion of this right cannot serve as the basis for a criminal conviction or evidence of a crime." 948 A.2d 1193, 1201 (D.C. 2008) (citing Camara, 387 U.S. at 540, 87 S.Ct. 1727 ; Little, 339 U.S. at 7, 70 S.Ct. 468 ; Prescott, 581 F.2d at 1350-51 ). The court declined to extend that principle to locking and holding a gate closed against an officer in pursuit. Id. at 1202. There was no evidence here that McLemore locked the door to exclude officers, held it closed, or physically resisted. These cases are not helpful to the city either.

¶ 18 In contrast, in the vast majority of cases called to our attention, courts have held that there is no obligation to open a home to an officer's warrantless demand for entry. The city of Columbus, for example, prosecuted a man who refused to open the door to allow officers responding to a potential domestic violence call to enter his home. City of Columbus v. Michel , 55 Ohio App.2d 46, 47-48, 378 N.E.2d 1077 (1978). Officers spoke with the person who made the call, saw broken glass, knocked for 7 to 10 minutes, and told the occupants to either let them in or have their door broken down. Id. at 46-47, 378 N.E.2d 1077. The court noted that the officers were "justified in breaking open the door of the apartment to determine whether anyone was injured in the apartment." Id. at 48, 378 N.E.2d 1077. But the "defendant's failure to open the door to the apartment is not made a crime" under the ordinance. Id. ;

see also Beckom v. State , 286 Ga.App. 38, 41, 648 S.E.2d 656 (2007) (refusing to open the door or answer the phone, "without more, does not constitute obstruction of the police, even if it is the police doing the knocking and ringing"); State v. Berlow, 284 N.J.Super. 356, 364, 665 A.2d 404 (Law Div. 1995) (purpose of both the Fourth Amendment and the parallel provision of the New Jersey Constitution "is to stop governmental intrusion at the door. One cannot be penalized for passively asserting that right").

Recently, the New Jersey Supreme Court, on almost identical facts, unanimously held failure to act was not obstruction. State v. Fede , 202 A.3d 1281 (N.J.2019).

¶ 19 The one exception to these cases brought to our attention by the city is Steen, 164 Wash.App. 789, 265 P.3d 901. Over a vigorous dissent, Steen held that the failure to open the door and leave a travel trailer when commanded to by an officer exercising community caretaking functions can constitute obstruction. Id. at 800, 265 P.3d 901.

¶ 20 But the Steen court relied heavily on case law that involved motor vehicles, not homes. See id. at 800-02, 265 P.3d 901 (discussing State v. Contreras, 92 Wash.App. 307, 966 P.2d 915 (1998) ). In Contreras, police responded to a report of a possible vehicle prowl and found Contreras sitting in the car. Contreras, who seemed " 'out of it,' " did not raise his hands, did not exit the vehicle, and gave only a first name. 92 Wash.App. at 309-10, 966 P.2d 915. Contreras was arrested for (though not charged with) obstruction of a law enforcement officer. Id. at 309, 966 P.2d 915. Contreras argued there was insufficient grounds for the arrest because he merely refused to speak to the officer. The court noted that mere refusal to talk to an officer is insufficient grounds to support an arrest for obstruction. But "Contreras did more than merely refuse to talk. He also disobeyed the officer's orders to put his hands up in view of [the officer], to exit the car, to keep his hands on top of the car, and to provide his name." Id. at 316, 966 P.2d 915.

¶ 21 Not surprisingly, Contreras itself also relied largely on cases involving motor vehicles. See Contreras , 92 Wash.App. at 316-17, 966 P.2d 915 (citing State v. Hudson, 56 Wash.App. 490, 497-98, 784 P.2d 533 (1990) ; State v. Little, 116 Wash.2d 488, 497, 806 P.2d 749 (1991) (plurality opinion); State v. Mendez, 88 Wash.App. 785, 792-93, 947 P.2d 256 (1997), rev'd, 137 Wash.2d 208, 970 P.2d 722 (1999) ; City of Sunnyside v. Wendt, 51 Wash.App. 846, 851-52, 755 P.2d 847 (1988) ). Hudson, Mendez, and Wendt all implicated statutes that require drivers to cooperate with law enforcement. Little was brought under a former version of the obstruction statute that was significantly revised after being repeatedly held unconstitutional. See S.B. REP. ON S.B. 6138, 53d Leg., Reg. Sess. (Wash. 1994); White, 97 Wash.2d at 103, 640 P.2d 1061 (describing the previous version of the statute as "flagrantly unconstitutional"). Washington law imposes on drivers and witnesses to traffic accidents a duty to cooperate with officers in many circumstances. E.g., RCW 46.61.020, .021. While Washington law vests officers with the statutory authority to break into a house under certain circumstances, see, e.g., RCW 10.31.040, there is no law requiring people to open their own doors to officers seeking warrantless entry.

¶ 22 Location matters. A home is entitled to constitutional protections that a moving vehicle is not. See State v. Ferrier, 136 Wash.2d 103, 112, 960 P.2d 927 (1998). " '[T]he closer officers come to intrusion into a dwelling, the greater the constitutional protection.' " Id. (internal quotation marks omitted) (quoting Young, 123 Wash.2d at 185, 867 P.2d 593 ). To the extent Steen suggests it is obstruction to not open the door to a home in response to a warrantless knock, it is inconsistent with Washington law and is overruled. See Williams, 171 Wash.2d at 485, 251 P.3d 877 ; White, 97 Wash.2d at 97, 640 P.2d 1061.

¶ 23 Under the limited construction we are required to give the obstruction statute to render it constitutional, the city presented insufficient evidence to sustain this conviction. Taken in the light most favorable to the city, McLemore refused to open the door, loudly insisted he had no obligation to do so, and told Lisa to tell the officers she was okay. None of this is punishable "conduct" under our limiting construction of the obstruction statute. Further, our review of the record leaves us with an abiding concern the jury could have convicted on speech alone.

See E.J.J., 183 Wash.2d at 501, 354 P.3d 815 (citing Abrams, 163 Wash.2d at 282, 178 P.3d 1021 ). Much of the evidence focused on what McLemore and the officers shouted at one another. There was no evidence presented that McLemore closed his door to prevent the officers' entry or prevented Lisa from opening it. Accordingly, we reverse.

CONCLUSION

¶ 24 We in the lead opinion would hold the city presented insufficient evidence to sustain McLemore's conviction and remand to the trial court for further proceedings consistent with this opinion. However, we recognize this opinion has garnered only four signatures. "Therefore, there being no majority for the reversal of the judgment of the trial court, it necessarily stands affirmed, and the order of this court is that the judgment appealed from be and it is hereby affirmed." Peterson v. City of Tacoma ,139 Wash. 313, 313, 246 P. 944 (1926).

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Gordon McCloud, J.

STEPHENS, J. (dissenting)

¶ 25 In asking this court to overturn his conviction, Solomon McLemore appeals broadly to privacy rights, free speech rights, and the fact that individuals owe no duty to assist law enforcement. These appeals obscure the fact that everyone, including McLemore, agrees the officers responding to the domestic violence call had the constitutional authority to demand entry pursuant to the community caretaking exception to the warrant requirement. And, settled precedent makes clear that refusing to obey lawful commands to take a specific action is conduct sufficient to support an obstruction conviction. I disagree with the lead opinion that McLemore's conviction rests "mostly" on speech and involves only passive "inaction" while inside his home. Lead opinion at 1162, 1163-64, 1166-67.

¶ 26 I would continue our long tradition of holding that individuals cannot willfully disobey law enforcement orders without facing legal consequences. Though no one owes an affirmative obligation to assist the police, obstruction in violation of RCW 9A.76.020 involves more than the mere refusal to assist. On the night in question, McLemore's right to privacy in his home yielded to the officers' authority to demand entry in order to verify the safety of the occupants inside. His obstruction conviction rests not on pure speech or mere inaction but on his willful conduct that hindered, delayed, or obstructed law enforcement in the discharge of their official duties. I would affirm the Court of Appeals and uphold McLemore's conviction.

ANALYSIS

¶ 27 This case arises in the context of officers responding to a late-night domestic disturbance call. Upon arriving outside McLemore's building, officers heard shouting and then the sound of glass breaking. When they loudly knocked on the door, all went silent. Clerk's Papers (CP) at 304, 324, 362, 365. Despite being given several explanations as to why officers were at his door and several chances to comply, McLemore refused to open the door to allow officers to verify the safety of McLemore's girlfriend, Lisa, and the couple's child. Deputy Ben Emmons testified:

[I gave v]ery basic commands, clear and concise. This is Shoreline Police Department, please open the door. Shoreline Police Department, come and talk to us. Shoreline Police Department, let me see your face. Shoreline Police Department, call 911. I want to give as many options as possible. I know some people are antsy about contacting the police face to face so I took that into account. If they wanted to call 911 that was fine. If they want to peek over the balcony that was fine too. I just wanted to establish some kind of back and forth and I was getting none.

CP at 364-65. When officers finally did get a response, they once again clearly explained that their intention was to verify the safety of all occupants in the home:

So as we continued kind of in this repetitive loop of conversation, at some point a female comes to the door and he said tell them you're okay. We had been telling him we need to make sure that everyone is okay. We need to know that everyone is okay because of what is going on here. So the female at some point comes to the door and he says, tell them you're okay. The female said I'm okay. A[t] this point they both said something like we're scared or something of that nature. But we tell them, we can't just take your word for it. You telling her to tell us you're okay isn't enough for us to verify that you're okay. He could be forcing you to say this. We have no idea. You're behind a door and we have no idea what's going on. We need to investigate.

CP at 330-31 (Test, of Deputy Jeremy Dallon). The record continues to detail repeated instances where the officers make clear that they are giving a lawful order to open the door so they can verify the safety of the occupants inside. See CP at 302, 304-05, 314-15, 324-31, 361-80. McLemore acknowledged this fact in his testimony:

They said we're coming in. We need to come in. We need to make sure everybody is okay. And I asked them all the relevant questions as to why-legal entry. Do you have anything to show me that shows me you can come in?
....
... They tell me they don't have to. They don't need to show me anything to get in. And then I tell them, well then in that case you need to go away.

CP at 414. McLemore acknowledged that the officers even gave him the option to call 911 to verify that they were the police. CP at 438; see also CP at 329 ("You can call the police, 911. They'll tell you that we're the police, let us in.") (Test, of Deputy Dallon).

¶ 28 Though the lead opinion describes the issue in this case as whether an individual has the duty to assist a warrantless search or seizure, the officers made no demand to search the home. See CP at 294-381. The record makes clear that the officers wanted to fulfill their statutory duty to verify Lisa's safety as part of their community caretaking responsibility.

¶ 29 McLemore's conduct falls squarely within the ambit of the obstruction statute, and his conviction is fully consistent with constitutional guaranties of privacy and free speech. Because there is no constitutional infirmity in McLemore's conviction, I believe our judicial role requires us to apply the statute the legislature has seen fit to adopt and the executive branch has seen fit to enforce, and to respect the jury's verdict. To explain why, I first address the statute, RCW 9A.76.020, and then consider the privacy and free speech rights asserted to excuse McLemore's violation of the statute.

I. Sufficient Evidence Supported the Jury's Finding That McLemore Committed Obstruction under RCW 9A.76.020

¶ 30 The statute under which McLemore was convicted provides, "A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties." RCW 9A.76.020(1). It is undisputed that the officers responding to the 911 call were discharging their official powers or duties. Mot. for Discr. Review at 3; lead opinion at 1163. Absent a constitutional privilege, McLemore had a statutory duty not to willfully hinder, delay, or obstruct law enforcement.

¶ 31 The lead opinion frames this case in terms of a "duty to cooperate" with law enforcement and invokes the general rule that no such duty exists. See lead opinion at 1164-65. In so doing, it characterizes McLemore's conduct as involving only "passive delay" and observes that behavior causing minor delay or inconvenience does not amount to obstruction. Id. at 1164-65 (quoting State v. E.J.J., 183 Wash.2d 497, 506, 354 P.3d 815 (2015) ). I believe this misstates both the facts of this case and the valid reach of the obstruction statute. While individuals interacting with the police owe no affirmative duty to cooperate, it is well recognized they may not engage in conduct that interferes in specific ways with law enforcement officers' discharge of their powers or duties. See State v. D.E.D., 200 Wash.App. 484, 494-95, 402 P.3d 851 (2017) (recognizing valid reach of obstruction statute despite no general obligation to cooperate with a police investigation); State v. Steen, 164 Wash.App. 789, 802 n.8, 265 P.3d 901 (2011) (recognizing obstruction statute does not criminalize a "citizen's mere refusal to assist police officers performing their community caretaking duties"). Hindering or causing material delay in lawful police efforts is punishable as obstruction. See D.E.D., 200 Wash.App. at 495, 402 P.3d 851 (describing examples of obstruction: interfering in the arrest of another, refusing to obey commands designed to control the scene, and failing to obey commands to exit a car and keep hands in sight).

¶ 32 In D.E.D., the Court of Appeals overturned an obstruction conviction because the charged conduct involved only "[p]assive resistance" to an unlawful arrest. 200 Wash.App. at 496, 402 P.3d 851. Central to the reasoning in D.E.D. was the fact that a separate resisting arrest statute ( RCW 9A.76.040(1) ) imposed a duty not to resist only in situations of a lawful arrest and the defendant's arrest was plainly unlawful. Id. Under the obstruction statute, the court held that D.E.D. did not "hinder or obstruct the officer since he had no obligation to cooperate with the officer." Id. The court cautioned against extending its narrow holding beyond the context of "[p]assive resistance consistent with the lack of a duty to cooperate." Id.

¶ 33 Unlike the juvenile in D.E.D., McLemore did have the duty to comply with lawful police orders to open the door and allow officers to verify Lisa's safety. Describing his refusal to open the door in this context as akin to D.E.D.'s "passive resistance" requires ignoring that McLemore testified he made an intentional-found to be willful-decision to disobey a direct, lawful order. I recognize that it may be difficult in some situations to distinguish between an affirmative duty to cooperate and a duty not to hinder or delay police, but this is not one of them.

¶ 34 Indeed, the facts of this case align with the cases the court in D.E.D. was careful to distinguish. 200 Wash.App. at 495, 402 P.3d 851 ; see State v. Little, 116 Wash.2d 488, 498, 806 P.2d 749 (1991) (plurality opinion) (flight from officers and refusal to stop when ordered to do so constituted obstruction of a public servant); Steen, 164 Wash.App. at 802, 265 P.3d 901 (refusal to open trailer door and exit with hands up held punishable under the obstruction statute); State v. Contreras, 92 Wash.App. 307, 316-17, 966 P.2d 915 (1998) (refusal to comply with orders to keep hands in view, exit the vehicle, and keep hands on top of the car supported obstruction conviction). The lead opinion recognizes the affinity between this case and these prior authorities, and its only response is to overrule Steen and to distinguish any case involving a car or a prior version of the obstruction statute. Lead opinion at 1165-66. This approach does not withstand scrutiny.

¶ 35 The lead opinion's dismissal of Steen appears to rest solely on the fact that Steen "relied heavily on case law that involved motor vehicles, not homes." Id. at 1166 (citing Contreras, 92 Wash.App. 307, 966 P.2d 915 ). This undeveloped analysis misapprehends the key distinction in Washington law that is explained in Steen -between the duty to follow lawful orders given by law enforcement as opposed to no duty to assist with an unlawful arrest. Compare Steen, 164 Wash.App. at 801, 265 P.3d 901 (duty to obey officer's commands), with D.E.D., 200 Wash.App. at 496, 402 P.3d 851 (no duty to cooperate in unlawful arrest). Far from supporting an automobile/home distinction, Steen explicitly states that it is following the precedent set in Contreras that "an individual's failure to follow police officers' lawful orders authorized the individual's warrantless arrest for obstruction." Steen , 164 Wash.App. at 801, 265 P.3d 901. Just as failure to comply with officer's demands to keep his hands in view and exit the vehicle constituted conduct for the purposes of the obstruction statute under Contreras, so too "refusal to open the trailer door and exit the trailer with his hands up" constituted conduct in Steen sufficient to support an obstruction conviction. Id. at 801-02, 265 P.3d 901. The decision in Steen is not an outlier but instead a correct application of our precedent recognizing that failure to obey a lawful order constitutes conduct sufficient for an obstruction conviction.

¶ 36 That precedent includes this court's decisions in Williams and Little. See State v. Williams, 171 Wash.2d 474, 251 P.3d 877 (2011) ; Little, 116 Wash.2d at 488, 806 P.2d 749. In Williams, we traced the development of obstruction statutes and free speech protections and narrowly construed RCW 9A.76.020 to require some conduct in addition to making false statements in order to support a conviction. 171 Wash.2d at 481-82, 251 P.3d 877. In the course of our analysis, we cited Contreras ("refusal to put hands up in view, to exit the car, and to keep hands on top of car as instructed and providing a false name") as an example of what constitutes conduct as opposed to pure speech. Id. at 483, 251 P.3d 877. In Little, which involved a Terry stop at an apartment complex, we recognized that the willful refusal to obey direct police orders violated the obstruction statute. 116 Wash.2d at 498, 806 P.2d 749 ("flight from the officers and refusal to stop when ordered to do so constituted an obstruction of a public servant").

¶ 37 The lead opinion attempts to minimize Little as having been decided under a former version of the obstruction statute, which we later declared unconstitutional. Lead opinion at 1166. The aspect of the statute we invalidated, however, involved a requirement that individuals stop and identify themselves when directed by law enforcement. See State v. White, 97 Wash.2d 92, 96-97, 640 P.2d 1061 (1982). As recently explained in E.J.J., the constitutional problem with the former statute was a provision that forced individuals to speak up and provide information to law enforcement, i.e., it punished pure speech. 183 Wash.2d at 502, 354 P.3d 815. But, we recognized that our decision in White "left intact subsection (3) [of former RCW 9A.76.020 (1975) ], which made it a misdemeanor to ' "knowingly hinder, delay, or obstruct" ' a public servant." Id. (quoting White, 97 Wash.2d at 96, 640 P.2d 1061 (quoting former RCW 9A.76.020) ). While the wording of the obstruction statute has evolved to recognize that speech alone cannot support an obstruction conviction, see Williams, 171 Wash.2d at 481-83, 251 P.3d 877, the refusal to obey lawful orders of law enforcement has always been deemed sufficient conduct to support an obstruction conviction when it hinders, delays, or obstructs the performance of official duties. See id. ; Little, 116 Wash.2d at 498, 806 P.2d 749 ; Contreras, 92 Wash.App. at 317, 966 P.2d 915 ; Steen, 164 Wash.App. at 802, 265 P.3d 901. As a result, the relevant question in this case is not whether McLemore was in his home or in a vehicle, as the lead opinion would suggest. Instead, the relevant question, according to precedent, is whether McLemore's refusal to obey lawful police orders hindered, delayed, or obstructed the officers in the performance of their duties.

¶ 38 Sufficient evidence exists to support McLemore's conviction for obstruction based on his willful failure to obey a lawful police order to open the door (or to allow Lisa to open the door) in order for officers to verify the safety of the occupants inside the home. It cannot be denied that McLemore's actions had specific consequences that both hindered and delayed the officers from performing their community caretaking duties. Officers spent several minutes trying to convince McLemore or Lisa to open the door; then, after hearing glass shattering, they attempted unsuccessfully to break the door or lock with a pickax, before finally having the Shoreline Fire Department arrive with breaching tools to help police forcibly enter the home. All essential elements of the obstruction statute are supported by evidence sufficient to sustain McLemore's conviction, and we should not disturb it unless McLemore can demonstrate that his conduct was constitutionally privileged. As discussed below, he has not demonstrated that his conviction violates either his privacy rights or his free speech rights.

II. McLemore's Obstruction Conviction Does Not Offend His Privacy Rights under the Fourth Amendment and Article I, Section 7 Because the Officers Acted with Authority of Law

¶ 39 Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." While the gold standard for authority of law is a judicially issued warrant, "there are a few ' "jealously and carefully drawn" exceptions' to the warrant requirement which 'provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.' " State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) ). Relevant here, the community caretaking exception "allows for the limited invasion of constitutionally protected privacy rights when it is necessary for police officers to render aid or assistance or when making routine checks on health and safety." State v. Thompson, 151 Wash.2d 793, 802, 92 P.3d 228 (2004). Once the community caretaking exception applies, police officers are allowed to conduct a noncriminal investigation, "so long as it is necessary and strictly relevant to performance of the community caretaking function." State v. Kinzy, 141 Wash.2d 373, 388, 5 P.3d 668 (2000).

¶ 40 Both McLemore and the lead opinion acknowledge that the officers responding to the 911 call had authority of law under the community caretaking warrant exception. See Mot. for Discr. Review 8-16; lead opinion at 1163 ("McLemore, wisely, does not challenge the trial court's conclusion that the officers were exercising their community caretaking function at the time."). "Police officers responding to a domestic violence report have a duty to ensure the present and continued safety and well-being of the occupants" of a home. State v. Raines, 55 Wash.App. 459, 465, 778 P.2d 538 (1989), review denied, 113 Wash.2d 1036, 785 P.2d 825 (1990). This duty is recognized in statute. RCW 10.99.030(5) provides that "[t]he primary duty of peace officers, when responding to a domestic violence situation, is to enforce the laws allegedly violated and to protect the complaining party." In addition, the legislature has decided that it is not enough for a police officer to simply observe the safety of a potential victim; even in cases where the officer has "not exercised arrest powers or decided to initiate criminal proceedings by citation or otherwise," officers are still required to "notify the victim of the victim's right to initiate a criminal proceeding" and advise all parties of the importance of preserving evidence. RCW 10.99.030(6)(a). Bearing these requirements in mind, the lead opinion concedes that "[i]t is undisputed that the officers here responded appropriately and lawfully to a potential domestic violence situation in which both Lisa and the child reasonably appeared in immediate danger." Lead opinion at 1163.

¶ 41 One is left to wonder why, then, the lead opinion embarks on a detailed privacy analysis under the Fourth Amendment of the United States and article I, section 7. Its eloquent exposition of an individual's right to keep the government from crossing the threshold to his home presupposes a different set of facts-officers seeking a warrantless entry without constitutional authority of law. See lead opinion at 1164-65. Here, the officers correctly explained to McLemore that they did not need a warrant to justify the limited intrusion they were seeking. The lead opinion seems to suggest that McLemore's refusal to open the door would be viewed differently had the officers held an actual warrant instead of authority of law under a warrant exception. Lead opinion at 1165. But, it does not explain why. Certainly, from the perspective of a person refusing an officer's command to open a door, there is no reason why the officer's assertion that he has a warrant would be any more persuasive than his assertion that he has other authority of law. Moreover, neither the chilling of privacy rights that the lead opinion is concerned about nor the constitutional authority of law the officers possess varies between the warrant scenario and the warrant exception scenario. The case law the lead opinion cites speaks to a privacy right McLemore did not possess here-the right to refuse entry to officers acting entirely without authority of law under either a warrant or a recognized warrant exception.

¶ 42 In attempting to create legal justification for McLemore's actions, the lead opinion misreads Dolson v. United States, 948 A.2d 1193, 1201 (D.C. 2008). Lead opinion at 1165. While Dolson explains that individuals have a Fourth Amendment right to deny police officers warrantless entry into a home, Dolson makes clear that "[t]his right to deny entry to a warrantless officer is not unlimited, however, despite the constitutional right involved." Dolson, 948 A.2d at 1201. It provides no solace in McLemore's case because, even absent authority of law under an exception to the warrant requirement, Dolson concludes that "just as no one has the right to resist an unlawful arrest, no one has the right to resist an unlawful entry to make an arrest." Id. (footnote omitted). This holding is consistent with the precedent noted previously, recognizing that a person's recourse to unlawful police activity is through a court action, not self-help.

¶ 43 Simply stated, McLemore's conduct cannot be excused on the basis of a nonexistent privacy right. His right to deny the officers entry to his home necessarily yields to valid authority of law, under a warrant exception just as surely as under a warrant. While the lead opinion is correct that McLemore's privacy in his home is entitled to greater constitutional protection than a person's privacy in a vehicle or on the street, the greater weight of the privacy interest has no bearing on the question before us. Heightened privacy protections in the home affect the court's determination as to when authority of law exists to justify an intrusion. But regardless of whether individuals are in a home, in a vehicle, or on the street, once they receive a lawful order from law enforcement, they have a statutory duty to comply. Because all parties agree that McLemore received a lawful order from the officers, we cannot excuse his willful refusal to comply with this order simply because it involved opening the door to his home.

III. McLemore's Obstruction Conviction Is Consistent with Free Speech Protections Because It Does Not Rest on "Speech Alone"

¶ 44 Having established that McLemore had no privacy-based right to disobey lawful police commands and that his refusal to open the door is punishable under the obstruction statute, I turn to the remaining proposition: that McLemore's conviction rests purely on speech rather than conduct. To avoid constitutional infirmities, Washington law requires "conduct in addition to pure speech in order to establish obstruction of an officer." Williams , 171 Wash.2d at 485-86, 251 P.3d 877 ; see also E.J.J., 183 Wash.2d at 502, 354 P.3d 815 ("a conviction for obstruction may not be based solely on an individual's speech because the speech itself is constitutionally protected").

¶ 45 Consistent with prior case law, McLemore's actions constituted punishable conduct and his conviction did not rest on "speech alone." E.J.J ., 183 Wash.2d at 503, 354 P.3d 815. His conduct included willfully and repeatedly refusing to open the door, as well as directing Lisa's response to the officers' commands, supporting a jury inference that he prevented her from opening the door. Contrary to the lead opinion's view, it is not enough to observe that "[m]uch of the evidence focused on what McLemore and the officers shouted at one another." Lead opinion at 1167. The cases that have invalidated obstruction convictions on free speech grounds all involve speech alone without sufficient evidence of accompanying conduct. In State v. Williamson, for example, the defendant was charged with obstruction for falsely telling police his name was " 'Christopher Columbus.' " 84 Wash.App. 37, 45, 924 P.2d 960 (1996). Similarly, in Williams, the defendant was convicted for giving a false name to police during a traffic stop. 171 Wash.2d at 476, 251 P.3d 877. In E.J.J., we reviewed our state and related federal precedent imposing free speech limits on obstruction convictions and vacated a juvenile adjudication where there was "insufficient evidence of conduct," 183 Wash.2d at 506, 354 P.3d 815, and where we could not "be certain that E.J.J.'s conviction was not based on his speech alone," Id. at 508, 354 P.3d 815. Here, in contrast, McLemore plainly engaged in conduct in addition to speech, and there is no constitutional infirmity when both speech and conduct are present. See Williams, 171 Wash.2d at 477-78, 251 P.3d 877 ; Little, 116 Wash.2d at 498, 806 P.2d 749 ; E.J.J., 183 Wash.2d at 502, 354 P.3d 815.

¶ 46 Without doubt, our precedent confirms that obstruction statutes may be constitutionally applied to punish individuals for willful conduct in refusing to obey law enforcement directives when such conduct hinders, delays, or obstructs the performance of official duties-even when speech is also involved. Such punishment under the obstruction statute is wholly consistent with constitutional constraints because it does not rest on "speech alone." E.J.J., 183 Wash.2d at 503, 354 P.3d 815 ; see also Williams, 171 Wash.2d at 485, 251 P.3d 877 ("We hew to our jurisprudential history of requiring conduct in addition to pure speech in order to establish obstruction of an officer."). As discussed above, the metaphysical distinction the lead opinion draws between action and inaction is nowhere to be found in our precedent. When a law enforcement officer tells a person to "put your hands up" or "open the door," the willful refusal to obey this command constitutes conduct-and such conduct violates RCW 9A.76.020.

CONCLUSION

¶ 47 Thankfully, in this case there was no physical harm to any of the parties involved. But recognizing the sort of "privilege to obstruct" that McLemore seeks will encourage individuals to "make their own snap judgments about the legality of official demands," Pryor, 32 F.3d at 1195, and "violence is not only invited but can be expected." Hatton, 116 Ariz. at 148, 568 P.2d 1040. There is no precedent that supports recognizing this privilege and no constitutional privacy or free speech rights at issue here that justify it. While reasonable minds might disagree about whether the officers or the prosecutor were overzealous in charging McLemore with obstruction or even whether the legislature should criminalize the refusal to obey police orders to open one's door, courts must leave those decisions to other branches of government. Our judicial role is constrained to invalidating arrest and prosecution decisions only when they result in constitutional violations. Because McLemore's conviction does not violate his constitutional rights, I would affirm the Court of Appeals and uphold his conviction.

Owens, J.

Yu, J.

Wiggins, J.

      We use only Lisa's first name to avoid subjecting her to unwanted publicity. No disrespect is intended.

      The dissent states that "everyone, including McLemore, agrees that the officers responding to the domestic violence call had the constitutional authority to demand entry pursuant to the community caretaking exception to the warrant requirement" and that "McLemore did have a duty to comply with lawful police orders to open the door." Dissent at 1, 8. We respectfully disagree with this characterization of the case. We agree that the officers had the constitutional authority to enter the home pursuant to the community caretaking exception to the warrant requirement. We do not agree that McLemore had a duty to comply with the police's demand to open the door.

      The dissent claims that "refusal to obey lawful orders of law enforcement has always been deemed sufficient conduct to support an obstruction conviction." Dissent at 11. We have never so held, and, under our limiting construction of the obstruction statute, it cannot be.

      Indeed, the jury's question during deliberation, "Does a person have the legal obligation to follow the police instructions, in this case?" touches on this vital principle. CP at 43. We do not fault the judge for not answering it during deliberations. But this case does turn on when a person has a legal obligation to follow an officer's directions.

      This, of course, is what distinguishes Dolson's conduct from McLemore's. Dolson shut his gate, locked it, and held it shut to keep out the police. Dolson, 948 A.2d at 1197. McLemore refused to open an already-locked door. Because of Dolson's active resistance, he was not entitled to a passive resistance instruction. Id. at 1201. McLemore did not resist, he simply did not open the door. But see dissent at 16 (treating Dolson's active resistance as analogous).

      Given our disposition, we do not reach the remaining arguments. We note in passing that it is questionable whether a defendant can appeal the denial of a Knapstad motion after the case has gone to trial. State v. Zakel, 61 Wash.App. 805, 811 n.3, 812 P.2d 512 (1991) (declining to review a denial of a Knapstad motion after trial); State v. Knapstad, 107 Wash.2d 346, 729 P.2d 48 (1986) ; CrR 8.3(c)(3) ("A decision denying a motion to dismiss under this rule is not subject to appeal under RAP 2.2.").

      Consistent with the lead opinion, and to avoid subjecting her to unwanted publicity, I refer to McLemore's girlfriend solely by her first name. No disrespect is intended.

      The lead opinion downplays the fact that McLemore told Lisa how to respond, see lead opinion at 1162 ("At McLemore's insistence, Lisa confirmed that she was fine and that she also wanted the officers to leave."), ultimately concluding there is "no evidence" he did anything to prevent her from opening the door. Id. at 1166-67. The testimony and a recording of the incident support a different conclusion. Deputy Dallon testified that Lisa "sounded like she had been crying. ... [I]t didn't sound like a calm, normal individual." CP at 331. He explained, "[McLemore] saying tell them you're okay seemed very coercive"; officers "have the legal obligation to investigate to make sure that someone who needs help isn't being prevented from getting help because of various reasons." Id. On cross-examination, McLemore grudgingly acknowledged that he told Lisa she needed to talk to the police and she needed to act mad. CP at 440. He also told her that if she opened the door and went outside, he was going to jail. CP at 441. Given this evidence, even if McLemore's own refusal to open the door might be characterized as mere "inaction"-a dubious characterization under our case law-evidence that he directed Lisa's response to the officers' commands plainly supports the jury's finding of obstruction.

      RCW 10.99.030 imposes specific requirements on law enforcement when responding to a domestic violence report. For example, officers are required to "take a complete offense report including the officer's disposition of the case" and "advise victims of all reasonable means to prevent further abuse, including advising each person of the availability of a shelter or other services in the community, and giving each person immediate notice of the legal rights and remedies available." RCW 10.99.030(6)(b) -(7). The responding officers testified that it would have been difficult to fulfill their statutory duties in this instance without a visual verification of Lisa's safety and the ability to speak with her separate from McLemore. CP at 330-31, 363, 371.

      This is not to say that individuals may violate unlawful police commands without legal consequences. The court in D.E.D. surveyed precedent recognizing that a person "cannot respond to police illegality by performing a criminal act in return." 200 Wash.App. at 492, 402 P.3d 851 ; see also State v. Holeman, 103 Wash.2d 426, 693 P.2d 89 (1985) (illegality of arrest did not justify hindering officers). The main rationale for this rule is public safety: the right to be free from illegal police conduct "can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom." State v. Westlund, 13 Wash.App. 460,467, 536 P.2d 20 (1975) ; see also United States v. Pryor, 32 F.3d 1192, 1195 (7th Cir. 1994) (stating the "indignity and inconvenience" of an improper arrest is less serious than injuries "engendered by encouraging suspects to make their own snap judgments about the legality of official demands"); State v. Hatton, 116 Ariz. 142,147-48, 568 P.2d 1040 (1977) ("If resistance to an arrest or a search made under the color of law is allowed, violence is not only invited but can be expected.").

      Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


source: Caselaw Access Project

author: MADSEN, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. Jason Michael CATLING, Petitioner.
    No. 95794-1
    Supreme Court of Washington.
    Argued October 23, 2018 Filed April 18, 2019
    Thomas Michael Kummerow, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Avenue, Suite 610 Seattle, WA 98101-1683, for Petitioner
    Brian Clayton O'Brien, Gretchen Eileen Verhoef, Spokane County Prosecuting Attorney, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, for Respondent
    Heather Lynn McKimmie, Disability Rights Washington, 315 5th Avenue S, Suite 850, Seattle, WA 98104-2691, Attorney(s) for Amicus Curiae (Disability Rights Washington)
    Karla Elizabeth Mary Carlisle, The Northwest Justice Project, 1313 N. Young Street, Suite D, Kennewick, WA 99336-7662, Tyler William Graber, Northwest Justice Project, 38 E. Main Street, Suite 207, Walla Walla, WA 99362-1939, Attorney(s) for Amicus Curiae (Northwest Justice Project)
   MADSEN, J.

¶1 This case concerns application of the Social Security Act's antiattachment statute, 42 U.S.C. § 407(a), in the context of mandatory legal financial obligations imposed on a convicted felon. Specifically, the issue is whether under the circumstances of this case, the trial court's imposition of mandatory legal financial obligations violates the antiattachment statute. The Court of Appeals held that the particular financial obligations imposed here did not violate the federal antiattachment statute but remanded for clarification of the payment order. For the reasons discussed below, we affirm in part, reverse in part, and remand with instructions.

FACTS

¶2 The facts precipitating this case are as follows. On February 1, 2016, the State charged Jason Michael Catling with two counts of delivery of heroin, a controlled substance. On August 18, 2016, pursuant to a plea deal, Catling pleaded guilty to one count of delivery of heroin in exchange for the State's agreement to dismiss the other drug delivery charge and to recommend a residential drug offender sentencing alternative (DOSA).

¶3 Catling was sentenced on September 23, 2016. During the sentencing hearing, Catling's attorney argued that because Catling's sole source of income was Social Security disability benefits, the trial court should not impose any legal financial obligations (LFOs), including mandatory obligations, based on this court's decision in City of Richland v. Wakefield , 186 Wash.2d 596, 380 P.3d 459 (2016), which had just issued the day before Catling's sentencing hearing.

¶4 The sentencing court had not yet reviewed Wakefield, took the LFO matter under advisement, and ascertained that Catling's sole source of income was Social Security disability benefits in the amount of $ 753 per month. Catling had been receiving these benefits for approximately 10 years because of chronic pain and multiple corrective surgeries regarding his congenital bladder condition.

¶5 On September 26, 2016, the trial court issued a written order imposing mandatory LFOs totaling $ 800 ($ 500 for crime victims' compensation assessment (per RCW 7.68.035(l)(a) ), $ 200 for criminal filing fee (per RCW 36.18.020(2)(h) ), and $ 100 DNA (deoxyribonucleic acid) collection fee (per RCW 43.43.7541 )). The order stated, "[T]he mandatory legal financial obligations can be ordered when a person is indigent and whose only source of income is social security disability." Clerk's Papers (CP) at 35. The order directed Catling to pay $ 25 per month starting January 5, 2017.

¶6 On October 5, 2016, Catling moved the trial court to reconsider its imposition of LFOs, again citing Wakefield and 42 U.S.C. § 407(a). The court denied the motion on October 19, 2016, and Catling timely filed a notice of appeal on October 26, 2016.

¶7 On appeal, the State conceded that the sentencing court erred in setting a payment schedule obligating Catling to begin payment of his mandatory LFOs when the information presented at sentencing indicated that Catling's only source of income was Social Security disability benefits. The State argued, however, that the appropriate remedy was not to strike the LFOs as Catling requested, but rather to strike the payment schedule and require the defendant to periodically present proof to the trial court that he continued to have no source of income except for Social Security disability benefits.

¶8 In a split decision, a panel of Division Three of the Court of Appeals held that although the sentencing court may impose mandatory LFOs on a recipient of Social Security disability benefits, it may not order such a defendant to pay those obligations without first determining the defendant has another source of income. State v. Catling, 2 Wash. App. 2d 819, 820-26, 413 P.3d 27 (2018). The Court of Appeals' dissent expressed concern about the burden on the defendant of continuing court appearances, questioned whether the defendant would ever be able to pay off the LFOs, and opined that such circumstance would ultimately coerce the defendant to invade his sheltered income to pay off the obligations. Id. at 845-47, 413 P.3d 27 (Fearing, C.J., dissenting). The dissent would have remanded the matter to the sentencing court to determine whether Catling "will likely receive other income in the indefinite future." Id. at 846, 413 P.3d 27.

¶9 The Court of Appeals' majority decision affirmed the imposition of the noted mandatory LFOs but remanded to the trial court to amend the judgment and sentence to specify that LFOs may not be satisfied out of funds protected by 42 U.S.C. § 407(a). Id. at 821, 826, 413 P.3d 27. Catling petitioned for review. This court granted review "only on the issue whether the imposition of mandatory [LFOs] on the Petitioner violates the Social Security Act's antiattachment provision." Order Granting Review, State v. Catling , No. 95794-1, 191 Wash.2d 1001, 422 P.3d 915 (Wash. Aug. 8, 2018).

ANALYSIS

I. Ramirez controls portions of this case

¶10 As a threshold matter, this case is partially resolved by this court's recent decision in Ramirez. In Ramirez, this court held that the legislature's overhaul of Washington's LFO provisions in House Bill (HB) 1783, which became effective on June 7, 2018, applied to a pending appeal concerning LFOs. This court explained:

House Bill 1783's amendments modify Washington's system of LFOs, addressing some of the worst facets of the system that prevent offenders from rebuilding their lives after conviction. For example, House Bill 1783 eliminates interest accrual on the nonrestitution portions of LFOs, it establishes that the DNA database fee is no longer mandatory if the offender's DNA has been collected because of a prior conviction, and it provides that a court may not sanction an offender for failure to pay LFOs unless the failure to pay is willful. LAWS OF 2018, ch. 269, §§ 1, 18, 7.... It also prohibits imposing the $ 200 filing fee on indigent defendants. Id. § 17.... We hold that House Bill 1783 applies prospectively to Ramirez because the statutory amendments pertain to [financial obligations] imposed on criminal defendants following conviction, and Ramirez's case was pending on direct review and thus not final when the amendments were enacted.

Ramirez, 191 Wash.2d at 747, 426 P.3d 714. "Because House Bill 1783's amendments pertain to costs imposed upon conviction and Ramirez's case was not yet final when the amendments were enacted, Ramirez is entitled to benefit from this statutory change." Id. at 749, 426 P.3d 714.

¶11 Here, no restitution was imposed; as noted, the trial court imposed only three LFOs: the criminal filing fee, the DNA collection fee, and the crime victim fund assessment. As for the filing fee, the Ramirez decision explained, "House Bill 1783 ... amends the criminal filing fee statute, former RCW 36.18.020(2)(h) [ (2015) ], to prohibit charging the $ 200 criminal filing fee to defendants who are indigent at the time of sentencing. LAWS OF 2018, ch. 269, § 17." Id. at 748, 426 P.3d 714. RCW 36.18.020(2)(h) now provides, in pertinent part, "Upon conviction or plea of guilty ... an adult defendant in a criminal case shall be liable for a fee of two hundred dollars, except this fee shall not be imposed on a defendant who is indigent as defined in RCW 10.101.010(3) (a) through (c)." (Emphasis added.) Here, the record indicates that Catling was indigent at the time of sentencing. He received public assistance in the form of Social Security disability benefits and food stamps, thus meeting the criteria for indigency. See RCW 10.101.010(3)(a) (food stamps); CP at 84 (Catling received food stamps); see also CP at 86-88 (order permitting appeal at public expense). Thus, as in Ramirez, "the trial court improperly imposed ... the criminal filing fee." Ramirez, 191 Wash.2d at 748, 426 P.3d 714. The appropriate remedy is to "remand for the trial court to amend the judgment and sentence to strike the improperly imposed LFOs." Id. at 750, 426 P.3d 714.

¶12 As for the trial court's imposition of the DNA collection fee, that LFO may also be improper. Under HB 1783, the DNA collection fee is no longer mandatory if a DNA sample has been collected from a defendant based on a prior conviction. RCW 43.43.7541 now provides, in relevant part, "Every sentence imposed for a crime specified in RCW 43.43.754 [i.e., any felony] must include a fee of one hundred dollars unless the state has previously collected the offender's DNA as a result of a prior conviction." LAWS OF 2018, ch. 269, § 18. Since 2002, a felony conviction triggers the mandatory taking of a DNA sample. See RCW 43.43.754 ; see also LAWS OF 2002, ch. 289, § 2. Here, Catling has three prior adult felony convictions, two of which occurred after 2002. The record does not indicate whether his DNA has been previously collected. If such collection has occurred, the trial court's imposition of the DNA collection fee here is improper. See LAWS OF 2018, ch. 269, § 18; Ramirez, 191 Wash.2d at 747, 426 P.3d 714. We remand to the trial court with direction to determine whether Catling has previously had a DNA sample collected and, if the court so finds, to strike the $ 100 DNA collection fee. Ramirez, 191 Wash.2d at 747-48, 750, 426 P.3d 714.

¶13 As for the $ 500 crime victim fund assessment, HB 1783 retains this mandatory LFO. RCW 7.68.035(1)(a) still provides in relevant part:

When any person is found guilty in any superior court of having committed a crime, ... there shall be imposed by the court upon such convicted person a penalty assessment. The assessment shall be in addition to any other penalty or fine imposed by law and shall be five hundred dollars for each case or cause of action that includes one or more convictions of a felony.

LAWS OF 2018, ch. 269, § 19. Elsewhere, HB 1783 specifically and repeatedly adds that "The crime victim penalty assessment under RCW 7.68.035 may not be reduced, revoked, or converted to community restitution hours," LAWS OF 2018, ch. 269, §§ 8(5), 13(3)(f), 15(4)(f), and further adds, "An offender being indigent ... is not grounds for failing to impose ... the crime victim penalty assessment under RCW 7.68.035." LAWS OF 2018, ch. 269, § 14(1). Concerning the crime victim fund assessment, we now turn to the petitioner's arguments.

II. The imposition of the mandatory LFO here does not violate 42 U.S.C. § 407(a)

¶14 Catling relies on Wakefield and Washington State Department of Social & Health Services v. Guardianship Estate of Keffeler , 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003), arguing that "a court may not impose LFOs on a person whose sole source of income derives from social security." Pet'r's Suppl. Br. at 2 (emphasis added) (boldface omitted). We disagree.

¶15 The Social Security Act's anti attachment statute at issue here provides:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

42 U.S.C. § 407(a). As can be seen, this provision requires that Social Security moneys cannot be reached to satisfy a debt. Notable for present purposes is what this statute does not provide. It does not forgive a debt, it does not address use of other assets to retire a debt, and it does not prohibit a debt; it only prohibits any use of Social Security moneys for debt retirement.

¶16 In Wakefield , this court addressed a petitioner's motion, pursuant to RCW 10.01.160(4), to remit costs (discretionary LFOs), specifically noting that petitioner "is not challenging ... nondiscretionary LFOs." Wakefield, 186 Wash.2d at 601, 380 P.3d 459 ; see also id. at 601 n.1, 380 P.3d 459 (noting "only discretionary costs are at issue"). This court found that the district court erred at the remission hearing on several bases, particularly in imposing a repayment schedule of $ 15 per month for the discretionary LFOs without regard to whether such payments created a manifest hardship for the petitioner. Relevant here, concerning 42 U.S.C. § 407(a), the Wakefield court also held "federal law prohibits courts from ordering defendants to pay LFOs if the person's only source of income is social security disability." Id. at 609, 380 P.3d 459 (emphasis added). Again, the context of the Wakefield decision concerned a motion for remittitur under RCW 10.01.160(4) for discretionary LFOs and focused on the district court's imposition of a payment schedule in that context without first properly determining petitioner's ability to pay. Wakefield does not address the trial court's ability to impose mandatory LFOs. Thus, contrary to Catling's assertions, Wakefield does not stand for the proposition that mandatory LFOs cannot be imposed on Catling.

¶17 As for Keffeler, Catling relies on this case for its discussion concerning the parameters of "other legal process" as used in § 407(a). But Keffeler really does not assist Catling. In Keffeler, the Supreme Court addressed a challenge by foster children to DSHS's (Department of Social and Health Services) practice of reimbursing its expenses for the foster children's care from Social Security benefits that the agency had received directly as the foster children's representative payee. The Supreme Court held that DSHS's reimbursement from the foster children's Social Security benefits "does not violate § 407(a)." Keffeler, 537 U.S. at 392, 123 S.Ct. 1017. The Court explained that "the case boils down to whether the department's manner of gaining control of the federal funds involves 'other legal process,' as [ § 407(a) ] uses that term." Id. at 383, 123 S.Ct. 1017. Applying statutory construction principles, the Court explained that

"other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.

Id. at 385, 123 S.Ct. 1017. The Court further opined, "[A]lthough execution, levy, attachment, and garnishment typically involve the exercise of some sort of judicial or quasi-judicial authority to gain control over another's property, the department's reimbursement scheme operates on funds already in the department's possession and control, held on terms that allow the reimbursement." Id. at 386, 123 S.Ct. 1017. The Court held that because DSHS's use of the foster children's benefits in its capacity as representative payee did not involve the transfer of Social Security moneys by way of a judicial process, there was no violation of the anti attachment statute. Id. at 386, 392, 123 S.Ct. 1017.

¶18 Catling relies on Keffeler 's discussion of "other legal process" as including a judicial action transferring funds from one person to another. Such transfer indeed occurred here as regards the trial court's order setting a $ 25 per month payment schedule. The payment schedule order was issued as part of the sentencing hearing-a judicial proceeding transferring property, thus meeting the "other legal process" prong of § 407(a). This does not advance Catling's position, however. Here, in its supplemental briefing, the State concedes, as it did in the Court of Appeals, that the trial court erred in ordering the defendant to pay the LFOs at a rate of $ 25 per month where the defendant's only income was Social Security disability benefits. See Suppl. Br. of Resp't at 13, 20. The State urges this court to affirm the remedy applied by the Court of Appeals, which recognized the error and remanded to correct it.

¶19 The Court of Appeals, consistent with Wakefield, acknowledged that the trial court's payment order-that Catling pay $ 25 per month-"cannot be enforced against his disability income per § 407(a)."

Catling, 2 Wash. App. 2d at 826, 413 P.3d 27. In formulating an appropriate remedy, the Court of Appeals found persuasive a Michigan appellate court decision addressing 42 U.S.C. § 407(a), In re Lampart, 306 Mich. App. 226, 856 N.W.2d 192 (2014).

¶20 In Lampart, a supervisory parent was ordered to pay restitution for her minor son's admitted arson. The parent subsequently became disabled, after which her only income was her Social Security disability benefits. Id. at 229, 856 N.W.2d 192. On appeal from the trial court's denial of the parent's motion to modify or cancel her restitution obligation, the Michigan appellate court opined as follows:

If it were determined that [the parent's] only asset, or source of income, is and remains from SSDI [ (Social Security disability insurance) ] benefits, 42 USC § 407(a) prohibits the use of legal process-including by a finding of contempt-from reaching those benefits to satisfy the restitution order. If, however, [the parent] is found to have income aside from her SSDI benefits, or other assets that are derived from other sources, that income or those assets could be used to satisfy the restitution award. The restitution order itself remains valid. Indeed, [the parent's] receipt of SSDI benefits does not immunize her from the restitution order; rather, it merely prohibits the trial court from using legal process to compel satisfaction of the restitution order from those benefits. Because it is possible that [the parent] may have assets or may receive income from other sources in the future, we affirm the trial court's refusal to cancel or modify [the parent's] restitution obligation.
The trial court's contempt powers similarly remain a valid tool in enforcing the restitution order, and our decision today should not be read otherwise. Again, a contempt hearing can be an appropriate vehicle for determining income and assets from which the restitution order may properly be enforced. However, the trial court may not compel [the parent] to satisfy her restitution obligation out of her SSDI benefits, by a contempt finding or other legal process, because [the parent] is entitled to the protections of 42 USC § 407(a).

Id. at 245-46, 856 N.W.2d 192 (citations omitted). Finding Lampart persuasive, Division Three in the present case opined, "[A]s in Lampart, there is nothing in § 407(a) that invalidates the underlying financial obligation. The antiattachment provision prevents levying against Social Security disability proceeds, but it does not address the debt itself." Catling, 2 Wash. App. 2d at 826, 413 P.3d 27. Accordingly, the Court of Appeals remanded the case to the sentencing court "to amend its judgment and sentence to indicate that the LFOs may not be satisfied out of any funds subject to 42 U.S.C. § 407(a)." Id.

¶21 As noted, the only remaining mandatory LFO that is not resolved by HB 1783, as applied by Ramirez, is the $ 500 crime victim fund assessment. We affirm the Court of Appeals' remand as to this remaining mandatory LFO.

¶22 The Court of Appeals' approach, comporting with both Wakefield and Lampart, appropriately applies the plain language of 42 U.S.C. § 407(a). The remedy employed adheres to § 407(a)'s mandate that no Social Security disability benefits are available to satisfy a debt, while at the same time recognizes that nothing in § 407(a) immunizes criminal defendants receiving Social Security benefits from the imposition of mandatory LFOs-here, the crime victim fund assessment. Catling does not convincingly argue that the above remedy is in error. As discussed, neither Wakefield nor Keffeler, on which Catling relies, requires a different result.

¶23 Similarly, Catling's assertion that Washington's statutes requiring courts to impose mandatory LFOs conflict with 42 U.S.C. § 407(a) and therefore violate the supremacy clause fails. As noted, only the crime victim fund assessment remains at issue here; and, in any event, as discussed above, nothing in § 407(a) prohibits the imposition of a financial obligation- § 407(a) prohibits only any use of Social Security moneys for debt retirement. While the trial court's payment order indeed violated § 407(a), the Court of Appeals' remand and directive that no Social Security funds may be used to satisfy the LFOs resolves any § 407(a) violation.

¶24 Finally, the Court of Appeals' remand order does not leave Catling in legal limbo, that is, with a mandatory LFO imposed but with no directive from the court on how to properly resolve it. Washington's LFO provisions address this possibility, authorizing the county clerk to monitor a defendant's changing circumstances and to alter the defendant's payment schedule as needed. RCW 9.94A.760(8)(b) (recodified in HB 1783; see LAWS OF 2018, ch. 269, § 14(8)(b)), provides:

Subsequent to any period of supervision, or if the department is not authorized to supervise the offender in the community, the county clerk may make a recommendation to the court that the offender's monthly payment schedule be modified so as to reflect a change in financial circumstances. If the county clerk sets the monthly payment amount, or if the department set the monthly payment amount and the department has subsequently turned the collection of the legal financial obligation over to the county clerk, the clerk may modify the monthly payment amount without the matter being returned to the court. During the period of repayment, the county clerk may require the offender to report to the clerk for the purpose of reviewing the appropriateness of the collection schedule for the legal financial obligation. During this reporting, the offender is required under oath to respond truthfully and honestly to all questions concerning earning capabilities and the location and nature of all property or financial assets. The offender shall bring all documents requested by the county clerk in order to prepare the collection schedule.

(Emphasis added.) This provision authorizes the clerk of the court to require the defendant to report to the clerk's office to provide periodic updates regarding his financial status, and here, that would include whether the defendant has any assets other than his Social Security disability benefits. The statute also authorizes the clerk to set or alter a fee schedule in response to defendant's changing circumstances. See also RCW 9.94A.760(1) ; LAWS OF 2018, ch. 269, § 14(1) (authorizing the county clerk to "set the amount" of the defendant's LFO payment schedule where the trial court has not done so).

¶25 In sum, only the crime victim fund assessment remains viable when HB 1783 is applied under Ramirez. We affirm the Court of Appeals' remedy as to the remaining LFO only.

CONCLUSION

¶26 We reverse the Court of Appeals in part, holding that under Ramirez, because HB 1783 applies, the trial court erred in imposing a $ 200 criminal filing fee on Catling, who is indigent. Also, we remand to the sentencing court for a determination of whether Catling has previously provided a DNA sample; if he has, the trial court's imposition of the $ 100 DNA collection fee is error. Also, we affirm the imposition of the $ 500 crime victim fund assessment but remand to the trial court to revise the judgment and sentence and repayment order to comport with HB 1783 and to indicate that this LFO may not be satisfied out of any funds subject to the Social Security Act's antiattachment statute, 42 U.S.C. § 407(a). Accordingly, we affirm in part and reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J. (dissenting)

¶27 As a result of Jason Catling's debilitating condition, he cannot work and relies on Social Security disability income (SSDI) to meet his most basic needs. Catling qualified for disability income more than 10 years ago and, given his medical condition, will likely remain on it for the rest of his life. As the majority properly recognizes, a court may not order someone to pay legal financial obligations (LFOs) out of SSDI. Majority at 1178; City of Richland v. Wakefield, 186 Wash.2d 596, 609, 380 P.3d 459 (2016) ; 42 U.S.C. § 407(a). The majority nonetheless concludes that a court may order that same individual to pay those same LFOs in a judgment and sentence. But a judgment and sentence is an order of the court, and when that order imposes an LFO on a person who has only SSDI, that order is unlawful. See Wakefield, 186 Wash.2d at 609, 380 P.3d 459. I respectfully dissent.

¶28 Plainly, it violates the antiattachment provision of the Social Security Act to order someone who has only SSDI to pay LFOs. Wakefield, 186 Wash.2d at 609, 380 P.3d 459 ; 42 U.S.C. § 407(a). I see no distinction between imposing such an LFO in a judgment and sentence and directing payment by separate order.

¶29 For individuals whose sole income is SSDI, the burdensome and coercive effects of LFOs will all too often result in SSDI being used to satisfy them. Individuals with LFOs are subject to the varying demands of the courts and clerks' offices for check-ins in order to determine the individuals' ability to pay their outstanding debts. RCW 9.94A.760(8)(b) ; see also State v. Nason, 168 Wash.2d 936, 942, 233 P.3d 848 (2010) (requiring person to pay LFOs or automatically report to jail). We can no longer ignore the fact that unpaid and unpayable LFOs can impose significant burdens on people with LFOs and their families. Tarra Simmons, Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations, 128 YALE L.J. FORUM 759, 761 (2019). This can have a lifetime effect. As recognized by the dissenting judge below, "[B]ecause of his disability, [Catling] abides trapped in an enduring legal process and he suffers other coercive consequences." See State v. Catling, 2 Wash. App. 2d 819, 845, 413 P.3d 27 (2018) (Fearing, C.J., dissenting).

¶30 Court clerks are often charged with collecting LFOs. These clerks have the authority to summon individuals with LFOs to report before them and share their financial situation, including responding under oath to questions of the clerk and providing sufficient documentation. RCW 9.94A.760(5), (8)(b). As Catling stresses, "Nothing in this statute limits the number of times the clerk can summon the debtor to the clerk's office." Pet'r's Suppl. Br. at 11. This imposition is particularly burdensome for Catling, who has a debilitating condition that leaves him in chronic pain.

¶31 We should not ignore the heavy collateral consequences imposed by LFOs. LFOs act as "a lien on Catling's civil rights." Catling, 2 Wash. App. 2d at 845, 413 P.3d 27 (Fearing, C.J., dissenting). An individual cannot vacate their record until their LFO debt is satisfied and they receive a certificate of discharge, among other requirements. Collateral consequences "appear in a variety of contexts and take a variety of forms, including time-limited or lifetime bans on employment opportunities, professional licenses, public benefits, public or private housing, and financial aid or educational opportunities." Simmons, 128 YALE L.J. FORUM at 761.

¶32 Our citizens have a constitutional right to vote. See Brower v. State, 137 Wash.2d 44, 68, 969 P.2d 42 (1998) (finding a fundamental right to vote under article I, section 19 of the Washington Constitution ); see also Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (finding a fundamental right to vote under the United States Constitution). This right is limited as long as an order to pay LFOs is outstanding. RCW 29A.08.520. For those with a felony conviction, the right to vote cannot be permanently restored without a certificate of discharge or a certificate of restoration issued by the governor. Compromising the constitutional right to vote "leav[es] the most vulnerable without a voice to change the system in which they are entangled." Simmons, 128 YALE L.J. FORUM at 760.

¶33 LFOs disproportionately affect disabled people who rely on SSDI. Without the ability to work, their LFOs will likely persist and continue to negatively affect their lives. See id. Individuals with lifelong disabilities that prevent them from working may never be able to pay off their LFOs, resulting in a lifetime of hearings about ability to pay LFOs and the negative consequences of having a criminal record. See RCW 9.94A.760(8)(b). "Moreover, while many people with disabilities already face barriers to employment, stable housing, and other necessary elements of economic security, adding a criminal record into the mix can pose additional obstacles that make living with a disability an even greater challenge." REBECCA VALLAS, CTR. FOR AM. PROGRESS, DISABLED BEHIND BARS: THE MASS INCARCERATION OF PEOPLE WITH DISABILITIES IN AMERICA'S JAILS AND PRISONS 3 (2016), https://www.americanprogress.org/wp-content/uploads/2016/07/18000151/2CriminalJusticeDisability-report.pdf [https://perma.cc/GJ89-T7M8].

¶34 "[A] debt must be capable of being paid, if it is not instead a lifetime [yoke] of servitude." Loretta E. Lynch, U.S. Attorney General, Remarks at White House Convening on Incarceration and Poverty (Dec. 3, 2015) (https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-white-house-convening-incarceration-and [https://perma.cc/XQ3T-49PK] ). The majority ignores the reality that an imposition of LFOs is an order to pay LFOs. I respectfully dissent.

      After Catling filed his appeal, the trial court revoked his DOSA sentence in an order filed on January 20, 2017. The trial court also reset Catling's LFO payment schedule to commence on January 15, 2018.

      The Court of Appeals also declined to reach Catling's argument concerning LFOs for defendants with mental health conditions (based on RCW 9.94A.777 ) because that issue was not raised below.

      Amici Disability Rights Washington and Northwest Justice Project filed briefs urging that review be granted.

      Our unanimous decision in State v. Ramirez, 191 Wash.2d 732, 426 P.3d 714 (2018), issued after the parties filed their supplemental briefs in the present case.

      As noted, HB 1783 also eliminated interest accrual on all LFOs except restitution. See Laws of 2018, ch. 269, § 1(1). Accordingly, on remand, the trial court is directed to revise the judgment and sentence to eliminate such interest on any qualifying remaining LFOs.

      The concern expressed by the dissent below, that such reporting may become burdensome to the defendant, has yet to materialize in this case. See Catling, 2 Wash. App. 2d at 835, 413 P.3d 27 (Fearing, C.J., dissenting) (noting the "disruption in the offender's schedule" attendant with court monitoring and reports to the clerk concerning outstanding LFOs); id. at 845, 413 P.3d 27 (expressing concern that Catling "abides trapped in an enduring legal process" and "remains stuck in an ongoing, burdensome court process"). Should such reporting indeed become overly burdensome at some future date, such circumstance may be addressed by local court rule or by rule of this court. Cf. Title 15 Rules of Appellate Procedure (addressing indigency determinations and the rights of indigent parties).

      As noted, the clerk can also make modification recommendations to the court based on the defendant's changed financial circumstances. RCW 9.94.760(8)(b); Laws of 2018, ch. 269, § 14(8)(b). Similarly, if the defendant is under supervision by the Department of Corrections, the department may monitor and make recommendations to the court reflecting the defendant's changed financial circumstances. RCW 9.94.760(8)(a); Laws of 2018, ch. 269, § 14(8)(a). And finally, if the defendant fails to pay an LFO, the court "may ... modify the terms of payment" of the LFO (and "shall" so modify, if the defendant is indigent) if the court finds that the violation was not willful. RCW 9.94B.040(4)(f) ; Laws of 2018, ch. 269, § 15(4)(f).

      RCW 9.94A.640(1) (allowing anyone discharged under RCW 9.94A.637 to apply to vacate their record of conviction), .637(1) (requiring payment of LFOs as a condition of receiving a certificate of discharge).

      RCW 29A.08.520(1) (provisional restoration of right to vote for those with felony conviction if not under authority of Department of Corrections), (2) (the provisional restoration of the right to vote can be revoked), (6) (right to vote may be permanently restored with, in relevant part, a certificate of discharge under RCW 9.94A.637 or a certificate of restoration by the governor under RCW 9.96.020 ).