# FlLE lil CLERI<S OFFICE**IUPREM~;** C

,-:,**'~ii.T,** STATEOFWASHIHG'fCN 

### DAr;:;JAN 

## 09 

## 2014

# -~

INTHE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,



### v. STEPHENCHRISS JOHNSON, Petitioner

. ) ) ) ) ) ) ) ) ) )

. 

# ____ ) No. 86885-9 ENBANC Filed: 

### JAN 09**~914**

FAIRHURST, J.-The Washington State Department ofLicensing (DOL) ·suspended petitioner Stephen Chriss Johnson's driver's license after receiving

notice that.he had failed to pay a traffic fine. Johnson was later arrested and convictedfor drivingwhile license suspended inthethird degree (DWLS 3rd). Johnson appeals his DWLS 3rd conviction on two grounds. First, he argues former RCW 46.20.342(1)(c)(iv) (2008), the statute defining DWLS 3rd, did not proscribe his continuing to drive after the suspension ofhis license for failing to pay a traffic fine. Alternatively, he argues that because he is indigent, the suspension is invalid under the Fourteenth Amendment to the United StatesStatev. Johnson, No. 86885-9 Constitution's due process and equal protection clauses, which Johnson argues required the State to inquire into his ability to pay the fine before suspending his license, and the State apparently did not do so. Johnson also argues that his indigence entitledhimto appointedcounsel forhis appeal andthatthe district court erred by denying him this counsel. Consequently, he seeks reimbursement for attorney fees spentinhis defense. We reject Johnson's challenges to his conviction but remand for further proceedings to determine Johnson's right to reimbursement for attorney fees. We holdthatthe plainmeaning offormer RCW46.20.342(1)(c)(iv) allows the State to convict a driver for DWLS 3rd where the underlying license suspension occurred for failure to pay a fine. We further hold that Johnson is not constitutionally indigent, and so we decline to address Johnson's constitutional challenge to the suspension ofhis license becausehe lacks standingto raise thatchallenge. Finally,

we hold that Johnson is statutorily indigent, and we remand Johnson's case to the district court with instructions to enter an order designating him either as (1) indigent or (2) indigent and able to contribute. Ifhe is able to contribute, the district court must enter an order determining the costs he should bear for his appeal.

2

### Statev. Johnson, No. 86885-9 I. FACTUALBACKGROUNDANDPROCEDURALHISTORY Johnson's driver's license expired in 2001, and a dispute with DOL about the validity ofhis mailing addresspreventedhimfrom renewing it. In2007,police stoppedJohnson and issuedtohim anotice ofinfractionfor driving withoutavalid license. Johnsonrequested and appearedfor ahearingto contestthenotice, butthe district court found he committed the infraction and imposed a fine of $260. Johnson did not pay the fine, and DOL suspended his license after the infraction trial courtnotifiedDOL ofhis failure topay. In September 2008, nearly 11 months after the effective date of the suspension ofJohnson's license, a Lewis County deputy sheriffwitnessed a truck driving without arear bumper or mud flaps. The deputy ran a check ofthe truck's plates and discovered that DOL had suspended the driver's license ofthe truck's registered owner-Johnson. The deputy then stopped Johnson and arrested him for DWLS 3rd. Johnson proceeded to trial, where the Lewis County District Court found him guilty ofDWLS 3rd, imposed an $805.50 fine, and sentenced him to 90 days injail, but suspended all jail time except for the four days Johnson had already served. The court offeredJohnson apaymentplan for the fine, buthe refused and asked the courtto sendthe fine to collections.

3State v. Johnson, No. 86885-9 Johnson appealed his conviction to the Lewis County Superior Court. During the pendency of this appeal, Johnson moved to replace his appointed counsel. Considering this motion, the district court noted that Johnson had filled out the forms for determining his status as indigent incompletely and examined Johnson under oath to determine whether he had a right to appointed counsel. Johnson testified that he had no income, had not worked in nearly 30 years, and received state aid in the form offood stamps and energy assistance. However, he also testified that he owned his $300,000 home free ofliens and had obtained a nearly $3 millionjudgment against his neighbor in a tort suit, although he stated the neighbor appeared judgment proof. After this hearing, the district court determinedthatJohnsonwas notindigent andremovedhis appointedcounsel. The superior court affirmed Johnson's conviction. Johnson then moved for discretionary review from the Court ofAppeals. The court commissioner denied review by order, and a panel ofthe court denied Johnson's motion to modify this order. Johnson then moved for discretionary review by this court, which we granted. II. ISSUES PRESENTED A. Do the reasons for license suspension codified in former RCW 46.20.342(1)(c)(iv) encompass the failure to pay the fine for a traffic infraction? B. Does Johnson have standing to raise his constitutional challenge to the suspensionofhis license? 4State v. Johnson, 

### No. 86885-9

C. Didthetrial courterrindenyingJohnson appointed counsel forhis appeal? III. ANALYSIS A. The State provedJohnson violated former RCW 46.20.342(1)(c)(iv) because afailure to payis afailure to complywiththeterms ofanotice ofinfraction Johnson first contends thathis conviction is invalid because while he admits he did not pay his fine, he argues that is not one ofthe enumeratedbases onwhich the State may support aDWLS 3rd charge under former RCW46.20.342(1)(c)(iv). We review de novo the meaning ofa statute. State v. Siers, 

### 174 Wn.2d 269, 274, 274 P.3d 358 (2012). "In interpreting a statute, our fundamental objective is to ascertain and carry out the legislature's intent." State v. Gray, 

### 174 Wn.2d 920, 926, 280 P.3d 1110 (2012). "To properly understand this statute, we look for its plain meaning, 'discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question."' Dissent at 2 (quotingDep'tof Ecologyv. Campbell & Gwinn, LLC, 

### 146 Wn.2d 1, 11, 43 P.3d4 (2002)). Where a statute is ambiguous after the plain meaning analysis, "we 'may look to the legislative history ofthe statute and the circumstances surrounding its enactment."' State v. Sweany, 

### 174 Wn.2d 909, 915,281 P.3d 305 (2012) (quoting Rest. Dev., Inc. v. Cananwill, Inc., 

### 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). The statute in questionhere is not ambiguous.

5

### Statev. Johnson, No. 86885-9 1. FormerRCW 46.20.342 We begin withthetext ofthe DWLS statute, former RCW 46.20.342, which provides, inrelevantpart: (1) It

### is unlawful for any person to drive a motor vehicle in this state while that person is in a suspended or revoked status or when his or her privilege to drive is suspended or revoked in this or any other state. (c) A person who violates this section when his or her driver's license or driving privilege is, at the time ofthe violation, suspended orrevoked solelybecause

... (iv)the personhas failed to respondto a notice of traffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms ofa notice oftraffic infraction or citation, as provided in [former] RCW 46.20.289 [(2005)]

... is guilty of driving while license suspendedorrevokedinthe third degree, amisdemeanor.[!] The reason for the underlying license suspension is an essential element of any DWLS charge. 

### State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005). Consequently, a conviction under former RCW 46.20.342(1)(c)(iv) requires the State to prove both (1) that the defendant drove with a suspended license and (2) that the license suspension occurred because ofone ofthe enumerated reasonsthat is, thatthe defendant (a) failedto respondto anotice ofinfraction, (b) failedto appear in court, (c) violated a written promise to appear in court, or (d) failed to complywiththetenus ofanotice ofinfraction.

1The legislature amended former RCW 46.20.289, effective June 7, 2012, to address the concernsvoicedbymany ofthe amici inthis case. LAws OF 2012, ch. 82, § 3. 6State v. Johnson, 

### No. 86885-9 Johnson did not fail to respondto anotice ofinfraction-}ohnsonresponded by contesting the citation and requesting a hearing, as provided by former RCW 46.63.070(3) (2006). Johnson also did not fail to appear in court or violate a writtenpromise to appear in court, as providedby former RCW 46.63.070(6)(b)- it is undisputed Johnson appeared for the hearing he requested to contesthis notice ofinfraction. However, in failing to pay the fine imposed when the infraction trial court rejected Johnson's challenge, Johnson failed to comply with the notice of infraction. Former RCW 46.20.342(1)(c)(iv) includes, as an underlying basis for suspension supporting a DWLS 3rd charge, suspension imposed because an individual did not "comply with the terms of a notice of traffic infraction or citation, as provided in [former] RCW 46.20.289." 

### (Emphasis added.) "To be reasonable, an interpretation must, at a minimum, account for all the words in a statute." Five Corners FamilyFarmers v. State, 

### 173 Wn.2d 296, 312, 268 P.3d 892 (2011). We thus cannot ignore that final clause referring to former RCW 46.20.289; we must instead assumethat clause was intendedto serve some purpose "because we presume the legislature says what it means and means what it says." State v. Costich, 

### 152 Wn.2d 463, 470, 98 P.3d 795 (2004). Our task is to determine, as amatter oflaw, whatthatpurposewas.

7State v. Johnson, 

### No. 86885-9 In the context offormer RCW 46.20.342(1)(c)(iv), the reference to former RCW 46.20.289 is clearly intended to serve the purpose of adding clarity and definitionto the terms precedingit. CfCuylerv. Adams, 

### 449 U.S. 433, 446, 101 S. Ct. 703, 66 L. 

### Ed. 2d 641 (1981) (a reference to a prisoner's rights to resist interstate extradition under a detainer agreement, "as provided in" another source oflaw, must be "construed as securing something more" than the rights already explicitly provided in the detainer agreement; otherwise, the "as provided in" languagewouldbe rendered superfluous); State v. Richardson, 

### 81 Wn.2d 111, 116, 499 P.2d 1264 (1972) (A statutoryreference following '"asprovidedin'" language in the implied consent statute "does elucidate in some detail the meaning ofthe words 'qualified person' and a reference to it is logical." (quoting former RCW 46.61.506 (1975))); see also State v. Bunker, 

### 169 Wn.2d 571, 578, 238 P.3d 487 (2010) ("Related to this [last antecedent] rule is the corollary principle that 'the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one."' (internal quotation marks omitted) (quoting City ofSpokane v. Spokane County, 

### 158 Wn.2d 661, 673, 146 P.3d 893 (2006))). The legislature intended to clarify and addmeaningto former RCW46.20.342(1)(c)(iv)by referenceto former RCW46.20.289.

8

### Statev. Johnson, No. 86885-9 FormerRCW46.20.289provides, inrelevantpart, [DOL] shall suspend all driving privileges ofa person when [DOL] receives notice from a court under [former] RCW 46.63.070(6) [(2006)], [former] 46.63.110(6) [(2007)], or [former] 46.64.025 [(2006)] that the person has failed to respond to a notice oftraffic infraction, failed to appear at a requested hearing, violated a written promiseto appear in court, orhas failed to comply withthe terms ofa notice oftraffic infraction or citation. Former RCW 46.20.289 thus incorporates further statutes by reference, and, as in the case of former RCW 46.20.342(1)(c)(iv), we may not ignore those references-we must presume the legislature included them for a purpose, and determine, as amatteroflaw, whatthatpurpose was. FormerRCW 46.20.289 plainly requires DOLto suspend aperson's driving privileges under certain circumstances-specifically, where DOL receives notice from a courtpursuantto one ofthe enumerated statutes. We therefore mustlookto thethree statutesreferencedinformer RCW46.20.289. Former RCW 46.63.070(6) requires the relevant court to notify DOL ifan individual fails to respond to a notice oftraffic infraction or failed to appear at a requested hearing. This statute is not relevant to Johnson's situation because, as noted above, he did respond to his citation, and he did appear in court for his requested hearing. Former RCW 46.64.025 requires the relevant court to notify DOL "[w]henever any person served with atraffic citationwillfully fails to appear

9

### State v. 

### Johnson, No. 86885-9 for a scheduled court hearing." Again, because Johnson did appear for his scheduledhearing, this statute is inapplicable. FormerRCW46.63.110(6), however, addresses situations inwhich aperson fails to pay a fine imposed by a court, and is directly applicable to Johnson's situation. Thatstatuteprovides, inrelevant2part: Whenever a monetary penalty, fee, cost, assessment, or other monetary obligation is imposed by a court under this chapter it is immediatelypayable. (b) If a person has not entered into a payment plan with the court andhas notpaidthe monetary obligation in full on orbeforethe time established for payment, the court shall notify [DOL] of the delinquency. [DOL] shall suspend the person's driver's license or driving privilege until all monetary obligations have been paid, includingthose imposedunder subsections (3) and (4) ofthis section, oruntilthepersonhas enteredinto apaymentplan underthis section. RCW 46.63.110(6). Iffailure to pay the monetary penalty assessed by a court following an unsuccessful challenge to a notice of traffic infraction was not intended to qualify as failure to comply with the notice's terms, the legislature's reference to former RCW 46.63.110(6) in former RCW 46.20.289 wouldbe either entirely superfluous or utterly nonsensical-every single part of former RCW 46.63.110(6) applies only to situations where "a monetary penalty, fee, cost, assessment, orothermonetary obligation is imposed by

### a courtunderthis chapter"

20therparts offormer RCW 46.63.110(6) applyto situations involvingpaymentplans for monetary fines imposed due to a traffic infraction. The face ofJolmson's ticket allowed him to avail himselfofthe trial court's ability to offer paymentplans or reduce the fine by responding within 15 days and seeking amitigationhearing. He didnotdo so. 10Statev. Johnson, 

### No. 86885-9 (emphasis added); and former RCW 46.20.289 does not reference any other sections of former RCW 46.63.110. We do not interpret statutes in a way that would render any statutory language superfluous or nonsensical and will not do so here. Bunker, 

### 169 Wn.2d at 578. The dissent's discussion ofthis final, failure-to-comply prong focuses on the statute's plain language, as did the dissent's discussion of the other prongs in former RCW 46.20.342(1)(c)(iv). However, the dissent apparently alters its methodology in analyzingthe final prong-inits analyses ofthe first three prongs, the dissent rightfully considers, both explicitly and implicitly, related statutes to discernplainmeaning. However, the dissent's discussion ofthe final prong focuses solely on a single clause, read in isolation-'"failed to comply with the terms ofa notice of traffic infraction or citation"'-rather than considering "'all that the legislature has said in the statute and related statutes."' Dissent at 2 (quoting former RCW 46.20.342(1)(c)(iv) and Campbell & Gwinn, 

### 146 Wn.2d at 11). Contrary to the dissent's characterization, we do not "string[ ] an additional statuteto the tail offormer RCW46.20.342(1)(c)(iv)." Dissentat4. The legislature is the body that wrote the statute, and the legislature is the body that explicitly incorporated former RCW 46.20.289 in the plain language of RCW 46.20.342(l)(c)(iv). We do nothave the option ofignoring that explicit legislative directive.

11Statev. Johnson, 

### No. 86885-9

2. Theterms ofthenotice oftraffic infraction Johnson argues thatthe terms ofthe notice ofinfractionrequired onlythathe respond and appear and that he had no duty to pay any fine ordered after the hearing contestingthe infraction. Johnson's argument assumesthatthe terms ofthe notice ofinfraction were frozen in time when he initially received the citation. He is incorrect. The face ofhis notice ofinfraction allowedthe infraction trial courtto impose a penalty after any hearing held to contest the notice ofinfraction or to explain mitigating circumstances. In other words, according to the plain language

onthe face ofthe notice ofinfraction, aperson who contests a notice ofinfraction may eliminate the duty to pay the fine imposed only if he or she succeeds in contesting the infraction. Johnson did not succeed, and the trial court recorded his failure onthe face oftheticketin opencourt. Johnsonwaspresentin courtand also received notice ofthe change to the face ofthe notice ofinfraction by order. See 

### former RCW 46.63.120 (1979). Johnson also claims that the related statutes providing meanmg for the phrase "failedto complywiththeterms ofanotice oftraffic infraction or citation," former RCW 46.20.342(1)(c)(iv), are the code provisions implementing the "Nonresident Violator Compact" (NVC), chapter 46.23 RCW. Under the NVC, '"[ c]itation' means any summons, ticket, notice of infraction, or other official

12

### State v. Johnson, No. 86885-9 document issuedby apolice officer for atraffic offense containing an orderwhich requires the motoristto respond" and "'[ t]erms ofthe citation' meansthose options expressly stated upon the citation." RCW 46.23.010 art. II(1), (11). Johnson thus contends that because the notice ofinfraction did not expressly require him to pay
afine, he has notviolated itsterms. Johnson correctly notes that we derive the legislature's intent from related statutes. However, he incorrectly determines that the relevant related statute is the NYC, rather than the statutes explicitly referenced in former RCW 46.20.342(1)(c)(iv). While the NYC defines the phrase "'[t]erms ofthe citation,"' RCW 46.23.010 art. II(11), it does not define the circumstances under which one has "failed to comply with the terms ofa notice oftraffic infraction or citation," which is the critical phrase for the DWLS 3rd scheme, former RCW 46.20.342(1)(c)(iv). The legislature did, however, define a failure to comply with the terms of a notice of infraction through former RCW 46.20.342(1)(c)(iv)'s incorporation of former RCW 46.20.289 and former RCW 46.63.110(6), as discussed above. These are the relevant related statutes, and they demonstrate that the legislature considered a failure to pay a fine a failure to comply with the terms ofanotice ofinfraction.

13Statev. Johnson, No. 86885-9 3. The ordinary citizen andobscuritybycross-reference The dissent contends that "[i]t strains credulity to imagine that an ordinary citizen would read into former RCW 46.20.342(1)(c)(iv) the double incorporation the majority reads into the statutory scheme." Dissent at 6. However, it would strain credulity even further to imagine that a reasonable ordinary citizen would adoptthe dissent's interpretation. Under the dissent's interpretation, where an individual's license is suspended because he or she simply fails to pay the fine indicated on a notice of traffic infraction, and where that individual continues to drive following the resulting suspension, he or she is guilty of DWLS 3rd under former RCW 46.20.342(1)(c)(iv). However, where an individual instead chooses to raise a challengeto thenotice oftraffic infraction, appears in courtto arguethatchallenge, loses in court, does not pay the fine assessed, and consequently has his or her license suspended, that individual may continue to drive without violating former RCW46.20.342(l)(c)(iv). We cannot acceptthat an ordinary citizenwouldbelieve he or she would be rewarded in this way for expendingjudicial resources on an unsuccessful challengeto anotice ofinfraction. The dissent further takes issue with the "obscure language" offormer RCW 46.20.342(1)(c)(iv), andthe fact thatwe must "follow a trail ofstatutes to pile one unclear reference upon another to arrive at the definition ofthe crime." Dissent at

14

### Statev. Johnson, No. 86885-9 8. Former RCW 46.20.342(1)(c)(iv), however, is hardly unique in its requirement that one look to multiple other statutes to discern its meaning, and the fact that it does so neither renders the statute ambiguous nor gives us license to ignore portions ofits text. By way of comparative example, RCW 46.61.520 defines vehicular homicide, inpart, as follows: (1) When the death ofany person ensues within three years as a proximate result ofinjury proximately caused by the driving ofany vehicleby anyperson ...ifthe driverwas operating amotorvehicle: (a) Whileunderthe influence ofintoxicatingliquor orany drug, as definedbyRCW46.61.502. RCW 46.61.502(1 ), meanwhile, defines drivingunderthe influence ofintoxicating liquoror any drug as the situationpresentedwhen a person drives avehicle withinthis state: (a) And the person has, within two hours after driving, an alcohol concentration of0.08 or higher as shown by analysis ofthe person'sbreath orbloodmadeunderRCW46.61.506; or (b) The person has, within two hours after driving, a THC concentration of5.00 or higher as shown by analysis ofthe person's bloodmadeunderRCW46.61.506; or (c) While the person is under the influence of or affected by intoxicatingliquor, marijuana, orany drug; or (d) While the person is under the combined influence of or affectedby intoxicatingliquor, marijuana, and any drug. RCW46.61.506, inturn, provides, among otherthings: 15Statev. Johnson, 

### No. 86885-9 (3) Analysis ofthe person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permitissuedbythe statetoxicologistforthispurpose. Thus, to determine whether one has committed vehicular homicide pursuant to RCW 46.61.520(1)(a), an individual must first look at that statute, then look to RCW 46.61.502 to determine whether he or she might meet the legal definition of "driving while under the influence," and then look to RCW 46.61.506(3) to determine whether the analysis ofthat individual's blood or breath was legally sufficient. Using the analytical framework employed by the dissent here, a defendant charged with vehicular homicide could admit that he or she drove a motor vehicle with an alcohol concentration of 0.09 and admit that he or she injured another person while driving, proximately causing that person's death. Nevertheless, the defendant would still be able to argue that based on his or her own unique physiology and alcohol tolerance, the defendant was not "under the influence" of alcohol. It

### would not matterthatRCW 46.61.502(l)(a) plainly defines any alcohol concentration above 0.08 asperse sufficientto establish an individual was driving "under the influence" because the meaning of that term, as used in RCW 46.61.520(l)(a), is obscured by cross-references, and so must be interpreted

16

### Statev. Johnson, No. 86885-9 literally and read in isolation. We will not employ an analytic framework that could leadto such absurdresults. The plain meaning of former RCW 46.20.342(1)(c)(iv) unambiguously supports the State's contention that "fail[ure] to comply with the terms ofanotice oftraffic infraction" includes the failure to pay monetary penalties imposed by a court following an unsuccessful challenge to the notice oftraffic infraction. We reject the interpretations offormer RCW 46.20.342(1)(c)(iv) proffered by Johnson andbythe dissent. B. Johnson is not constitutionally indigent and lacks standing to make his constitutional challengeto the suspensionofhis license Johnson also challenges his conviction on constitutional grounds. He argues that the underlying suspension of his license was invalid under the Fourteenth Amendment to the United States Constitution and that an invalid suspension cannot support his DWLS 3rd conviction, citing 

### State v. Dolson, 138 Wn.2d 773, 777, 982 P2d 100 (1999).3 

### The State contends that Johnson lacks standing to contesttheunderlying suspensionofhis license onthis basis, andwe agree. To prove he has standing, Johnson must satisfy both prongs of our two pronged test. 

### Branson v. Portof Seattle, 152 Wn.2d 862, 876, 101 P.3d 67 (2004).

3The Fourteenth Amendmentto the United States Constitutionprovides, in relevant part, "No state shall

... deprive any person oflife, liberty, or property, without due process oflaw; nor deny to any person within its jurisdiction the equal protection ofthe laws." U.S. CONST. amend. XIV, § 1. 17State v. Johnson, 

### No. 86885-9 First, Johnson must show "a personal injury fairly traceable to the challenged conduct and likely to be redressed by the requested relief." High Tide Seafoods v. State, 

### 106 Wn.2d 695, 702, 725 P.2d 411 (1986). Second, Johnson must show that his claim falls withinthe zone ofinterests protectedby the statute or constitutional provision at issue. Branson, 

### 152 Wn.2d at 875. Where aparty lacks standing for a claim, we refrain from reaching the merits ofthat claim. Org. to PreserveAgric. Lands v. Adams County, 

### 128 Wn.2d 869, 896, 913 P.2d 793 (1996). TheFourteenthAmendment's equal protection and dueprocess clauses work together to restrict a state's ability to imprison indigent defendants for failure to pay fines. Bearden v. Georgia, 

### 461 U.S. 660, 665, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); Tate v. Short, 

### 401 U.S. 395, 396, 91 S. Ct. 668, 28 L. 

### Ed. 2d 130 (1971); Williams v. Illinois, 

### 399 U.S. 235, 236, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970). The Supreme Court ofthe United States has held that the due process and equal protection clauses prevent a state from invidiously discriminating against, or arbitrarily punishing, indigent defendants for their failure to pay fines they cannot pay. Bearden, 

### 461 U.S. at 665. Therefore, a trial court must inquire as to a defendant's ability to pay before imprisoning the defendant in order to ensure the failure topayis contumacious-thatis, stubbornly disobedient-andnotdue solely to alackofmeans.Jd. at 668-69.

18Statev. Johnson, No. 86885-9 Johnson contends that our decision in State v. Blank, 131 Wn.2d 230, 239, 245, 930 P.2d 1213 (1997), extended Bearden, Tate, and Williams beyond an indigent's physical liberty, and that any State sanction imposed for failure to pay a fine without a showing that the nonpayment was contumacious is a constitutional violation. He therefore contends the suspension of his license for nonpayment, which apparently occurred without inquiry into his ability to pay, was a constitutional violation. If he is indigent and correctly reading Blank, such a constitutional violation would satisfy both the injury-in-fact and the zone of interests standing tests. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW446 (3ded. 2000). However, a constitutional violation underBlankoccurs only wherethe State sanctions an indigent individual without demonstrating contumacious failure to pay. Tate, 401 U.S. at400 ("Weemphasizethatourholdingtoday does not suggest any constitutional infirmity in imprisonment ofa defendant with the means to pay

a fine who refuses or neglects to do so."); People v. Lewis, 19 Cal. App. 3d 1019, 97 Cal. Rptr. 419, 421 (Dist. Ct. App. 1971). IfJohnson is not indigent within the meaning ofBearden and Blank-constitutionally indigent-then no constitutional violation has occurred and Johnson lacks standing because he has not suffered an InJury.

19Statev. Johnson, No. 86885-9 No precise definition of "constitutional indigence exists." In Williams, the Supreme Court spoke ofindigence as meaning "without funds." 399 U.S. at 242. Nonetheless, courts have recognized that constitutional indigence cannot mean absolute destitution. Lewis, 97 Cal. Rptr. at421. Atthe same time, a constitutional distinction exists between poverty and indigence, and constitutional protection attaches only to indigence. See, e.g., Fuller v. Oregon, 417 U.S. 40, 53, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974).4Bearden essentially mandates thatwe examine the totality ofthe defendant's financial circumstances to determine whether he or she is constitutionally indigent in the face ofaparticular fine. 461 U.S. at 661-62, 666 n.8 ("The more appropriate question is whether consideration of a defendant's financial background in setting orresetting a sentence is so arbitrary orunfair as to be adenial ofdue process."). At least one court has stated that whatever the definition of"constitutional indigence," those claiming indigence in the face oftraffic fines cannot satisfy the definition. "In traffic cases, it is difficult to find an inability to pay when a defendant owns an automobile and seeminglyhas moneyto buy gasoline orhas the ability to borrow." State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 295, 201

4 We live in a society where the distribution of legal assistance, like the distribution ofall goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call uponhis family orfriends in orderto hire alawyer. Fuller, 417 U.S. at 53. 20

### State v. Johnson, No. 86885-9 N.W.2d 778 (1972). We find no need to make such a categorical statement here because we find Johnson's assets leave him unable to claim he is constitutionally indigent. Ownership of, or equity in, property indicates that a defendant is not constitutionally indigent and that his or her failure to pay a fine is contumacious. See, e.g., Bearden, 461 U.S. 662 (Bearden was indigentbecause he lacked assets); Lewis, 97 Cal. Rptr. at 421 (making ownership oftangible or intangible property

one measure ofthe defendant's abilityto pay); People v. McArdle, 55 N.Y.2d 639, 430 N.E.2d 1309, 1310, 446 N.Y.S.2d 256 (1981) ("There is no constitutional infirmity in defendant's imprisonment for failure to pay the fine, for her equity in the property establishes that she has the means to pay it though she has so far refused to do so."); State v. Williams, 562 So. 2d 965, 969 (La. Ct. App. 1990) ("[T]here is evidence in the recordthatthe defendant owns immovable property in Breaux Bridge, La. We find the record does not support defendant's claim of indigency."). Property ownership allows the defendant to "borrow money or otherwise legally acquire resources in order to pay his court-ordered financial obligation" to pay his or her debt to society. State v. Bowers, 64 Wn. App. 227, 231-32, 823 p.2d 1171 (1992). While Johnson claims standing based on his statutory indigence, his statutory indigence does not answer the question ofwhether he is constitutionally

21Statev. Johnson, No. 86885-9 indigent within the meaning ofBearden and Blank. See In re Smith, 323 F. Supp. 1082, 1091 (D. Colo. 1971) (noting that statutory indigence is different from constitutional indigence). The trial record shows that Johnson is not. During an exchange with the district court, Johnson acknowledged he owned both tangible and intangible property. Lewis, 19 Cal. Rptr. at 422. He stated that he owned, among otherthings (such as his car), his home, free ofany liens. He statedthat he valued the property at $300,000. He also acknowledged possessing a $3 million judgmentagainsthis neighbor. We agreewith Johnsonthatunderthetotality ofthe circumstances, it is unreasonable to consider the $3 millionjudgment as an asset given the unlikelihood that he would ever collect any part of it. However, his equity in his home would have allowed Johnson to "borrow or otherwise legally acquireresources" necessaryto paythe $260 fine. Bowers, 64 Wn. App. at 231-32. Considering the totality ofthe circumstances, we holdthat Johnson was not constitutionally indigent. While we do not question that the State may not punish

an indigent defendant for the fact of his or her indigence, these constitutional considerations protect only the constitutionally indigent. Johnson had substantial assets in comparison to the $260 fine the district court ordered him to pay. Requiringpaymentofthe fine mayhaveimposedahardship onhim, butnot such a hardship that the constitution forbids it. Lewis, 19 Cal. Rptr. at 422 (the constitution does notrequire the trial courtto allow a defendantthe same standard
22State v. Johnson, No. 86885-9 oflivingthathe had become accustomed). Johnson is not constitutionally indigent and lacks standingfor his claim. We declineto reachit. C. The district court improperly determined that Johnson was not entitled to appointed counsel Finally, Johnson argues his constitutional right to counsel was violated because the district court refused to appoint counsel for his appeal. The right to counsel requires courts to appoint counsel for indigent defendants for criminal trials as well as for appeals ofright. Gideon v. Wainwright, 372U.S. 335, 83 S. Ct. 792, 9L. Ed. 2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). There is no constitutional right to appointed counsel for discretionary appeals. Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). Washington State has, however, expanded by statute the right to appointed appellate counsel beyondthe minimumrequired by the United States Constitution. A defendant defined as statutorily indigent may receive appointed counsel for criminal trials and appointed appellate counsel under certain circumstances, such

as when an appellate court accepts a motion for discretionary review, as happened here. RCW 10.73.150(6). A person may avail himselfor herselfofthis statutory right to appointed appellate counsel ifhe or she is (1) indigent or (2) indigent and ableto contribute. RCW 10.73.150.

23Statev. Johnson, 

### No. 86885-9 RCW 10.101.010(3) defines a person as '"[i]ndigent"' for the purposes of receiving appointed counsel ifhe or she satisfies at least one offour disjunctive criteria at any stage ofa legal proceeding. Receipt offood stamps satisfies one of these criteria; earning less than 125 percent ofthe federal poverty level in income satisfies another. RCW 10.101.010(3)(a), (c). By the plainterms ofRCW 10.101.010(3), Johnson was statutorily indigent. Johnson satisfied two of the criteria for statutory indigence under RCW 10.101.010(3)-thereis no dispute thathe received food stamps andthathe earned less than 125 percent ofthe federal poverty level. Either was sufficient to require the district court to find him indigent within the meaning of Washington's appointed counsel statute. State v. Hecht, 

### 173 Wn.2d 92, 94-95, 264 P.3d 801 (2011). The district-court-erredwhenit found Johnson notindigent. However, the district court appears to have determined that Johnson was indigent and able to contribute. Aperson is '"[i]ndigent and able to contribute"' if he or she is "unableto paythe anticipated cost ofcounsel for the matter before the courtbecausehis orher available funds are less thanthe anticipated costofcounsel but sufficient for the person to pay a portion ofthat cost." RCW 10.101.010(4). The district court denied Johnson status as an indigent after Johnson admitted to owning a house free ofliens. Equity in real estate makes up part of a person's available funds. RCW 10.101.010(2). To the extent that his equity in his home

24Statev. Johnson, No. 86885-9 enabledJohnson to pay for some ofthe costs ofhis defense, itmakes him indigent and able to contribute. RCW 10.101.010(4). Johnsonchallengesthe districtcourt's abilityto inquire as to his indigence at all, claiming it had already determined he was indigent. Johnson cites RCW 1

0.101.020(3), which requires the trial court to determine his indigence "uponthe defendant's initial contact with the court, or at the earliest time circumstances permit," and claims that this provision does not allow the trial court to reexamine

an order of indigency. However, RCW 10.101.020(3) merely requires the trial courtto make an initial determination ofindigency; it does notpreclude the court from laterreevaluating its initial determination. Indeed, both statute and courtrule provide the court with the implicit or explicit authority to perform this reevaluation. RAP 15.2(b) provides, "The determination [of indigency] shall be made in written findings after a hearing, if circumstances warrant, or by reevaluating any order of indigency previously entered by the trial court"; and RCW 10.10l.020(4) provides, "If the court subsequently determines that the person receiving services is ineligible," then the court should terminate the appointment ofcounsel. The district court had the power to inquire ofJohnson's financial status to evaluate if the initial determination of indigency remained appropriate laterintheproceedings.

25State v. Johnson, No. 86885-9 Johnson also argues the district court deprived him ofdue process when it reconsidered his indigent status, contending he had no "meaningful notice or opportunitytobeheard." Pet'r's Opening Br. at 43. Johnson does not elaborate on this sentence at all. Where a petitioner makes a due process challenge, "'[N]aked castings into the constitutional seas are not sufficient to command judicial consideration and discussion."' State v. Blilie, 132 Wn.2d 484, 493 n.2, 939 P.2d 691 (1997) (alteration in original) (internal quotationmarks omitted) (quotingIn re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)). Johnson's lack ofargument waives considerationofhis due process argument. We remand to the district court for clarification as to whether Johnson is indigent or indigent and able to contribute. Ifthe district court determines that Johnsonwas indigent and ableto contribute, it must enter an order determiningthe portions ofJohnson's defense for whichhe mustpay. See 1-lecht, 173 Wn.2d at 95, 96; RAP 15.4. IV. CONCLUSION We reject Johnson's argument that the State failed to prove that his license suspension occurred for one of the reasons listed in former RCW 46.20.342(1)(c)(iv). The plain meaning ofthe statute contemplates a DWLS 3rd charge where the underlying suspension occurs for failure to pay atraffic fine. We reject Johnson's contention that he is constitutionally indigent, and therefore
26

### State v. Johnson, No. 86885-9 decline to reach the merits ofhis constitutional challenge to the suspension ofhis license. We do, however, agree that Johnson is statutorily indigent because he receives food stamps andhis income is less than 125 percent ofthe federal poverty level. The district court erred in finding otherwise. We remand to the district court to determine whether Johnson is indigent or indigent and able to contribute, and directitto enterthe appropriate order.

27Statev. Johnson, No. 86885-9

WE CONCUR:


## (

28State v. Johnson (Stephen Chriss)

No. 86885-9 WIGGINS, J. (dissenting)-! agree with the majority's holdings that (1) petitioner Stephen Chriss Johnson is statutorily indigent, but not constitutionally indigent; (2) Johnson lacks standing to challenge the constitutionally of his license suspension; and (3) the case should be remanded to decide whether he should bear any or all costs and attorney fees for his appeal. But, I respectfully disagree with the finding that Johnson was guilty of driving with license suspended in the third degree (OWLS 3d) and, accordingly, must dissent. To place this case in context, in 1979, the legislature decriminalized moving traffic violations, making them civil infractions. LAWS OF 1979, 1st Ex. Sess., ch. 136. Accordingly, "[a]n order entered after the receipt of a response which does not contest the determination, or after it has been established at a hearing that the infraction was committed, or after a hearing for the purpose of explaining mitigating circumstances is civil in nature." RCW 46.63.120(1). In other words, an order determining there has been an infraction is a civil order. As the majority explains, the legislature has decided to criminalize certain aspects of traffic infractions. Former RCW 46.20.342(1) (2008) makes it "unlawful for any person to drive a motor vehicle in this state while that person is in a suspended or revoked status or when his or her privilege to drive is suspended or revoked in this or any other state." OWLS 1st, 2d, and 3d each arise under very specific conditions. Former RCW 46.20.342(1)(a), (b), (c). OWLS 3d is committed under circumstances defined in seven subsections. Former RCW46.20.342(1)(c)(i)-

1State v. Johnson (Stephen Chriss) Wiggins, J., dissenting (vii) (2008). Johnson was convicted under section .342(1)(c)(iv), which defines OWLS 3d to include driving with license suspended or revoked because the person has failed to respond to a notice oftraffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms of a notice of traffic infraction or citation, as provided in [former] RCW 46.20.289 [(2005)]

.... To properly understand this statute, we look for its plain meaning, "discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." Oep't ofEcology v. Campbell & Gwinn, LLC, 146Wn.2d 1, 11, 43 P.3d 4 (2002). Johnson is not guilty of the first prong of former RCW 46.20.342(1)(c)(iv) because he did not "fail[ ] to respond to a notice of traffic infraction

...." The legislature has defined what it means to fail to respond to a notice of infraction: "A notice of traffic infraction represents a determination that an infraction has been committed. The determination will be final unless contested as provided in this chapter." RCW 46.63.060(1). The notice must conform to the form prescribed by this court and must include "[a] statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these 

### t. " op 1ons

.... RCW 46.63.060(2)(e). A cited person may respond in one of three ways:

o The cited person may respond to the court named on the notice of infraction that it is not contested and pay the fine stated on the citation. RCW46.63.070(2).

2State v. Johnson (Stephen Chriss) Wiggins, J., dissenting

o The cited person may contest the infraction by notifying the court and requesting a hearing. /d. at .070(3).

o The cited person may notify the court of a request for a hearing to present mitigating circumstances. /d. at .070(4). These are the only three permissible responses to the notice of infraction. The notice of infraction to Johnson clearly listed these three options. Ex. 2. Johnson chose the second option and requested a hearing to contest the infraction. He is not guilty underthe first prong. Nor is Johnson guilty ofthe second prong offormer RCW 46.20.342(1)(c)(iv) because he did not "fail[ ] to appear at a requested hearing " Rather, he appeared at the hearing. Nor is Johnson guilty of the third prong of former RCW 46.20.342(1)(c)(iv) because he did not "violate[ ] a written promise to appear in court

...." He indisputably appeared in court. Failing to find a violation of any of these three prongs, the majority seizes upon the fourth prong of former RCW 46.20.342(1)(c)(iv), concluding that Johnson "failed to comply with the terms of a notice oftraffic infraction or citation as provided in [former] RCW 46.20.289

...." The majority writes, "[l]n failing to pay the fine imposed when the infraction trial court rejected Johnson's challenge, Johnson failed to comply with the notice of infraction." Majority at 7. I respectfully disagree. There is no "term" on the notice of infraction requiring Johnson to pay the fine imposed by the judge. The only "term" on the notice that refers to fine payment is the option to 3State v. Johnson (Stephen Chriss) Wiggins, J., dissenting simply pay the fine on the citation and avoid any court appearance as set forth in RCW 46.63.070(2). But Johnson chose the option of appearing and contesting the infraction, so the option of avoiding the hearing by paying the fine does not apply to him. The notice of infraction includes a section in which the district court circled somewhat cryptic abbreviations and wrote that the penalty is $260. Ex. 2. This section is labeled "Abstract of Judgment." It is not an order that Johnson pay the money. Moreover, exhibit 2 is specifically labeled "Court Copy." In short, Johnson did not fail to comply with any term ofthe infraction. The majority concludes that Johnson must have violated a term of the infraction, arriving at its conclusion by stringing an additional statute to the tail of former RCW 46.20.342(1)(c)(iv) and stringing yet three more statutes to the second statute. Majority at 6-10. The majority proceeds in several steps. First, the majority observes that after listing the four prongs for finding OWLS 3d under former RCW 46.20.342(1)(c)(iv), the subsection concludes with the phrase "as provided in RCW 46.20.289": the person has failed to respond to a notice oftraffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms of a notice of traffic infraction or citation, asprovidedin [former] RCW46.20.289

.... (Emphasis added.) Second, the majority reasons that this incorporation or crossreference clarifies and adds meaning to the four prongs under section .342(1)(c)(iv). Majority at 8.

4State v. Johnson (Stephen Chriss) Wiggins, J., dissenting Third, the majority observes that former RCW 46.20.289 cites to three additional statutes: "[DOL] shall suspend all driving privileges of a person when the department receives notice from a court under [former] RCW 46.63.070(6) [(2006)], [former] 46.63.110(6) [(2007)], or [former] 46.64.025 [(2006)] that the person has failed to respond to a notice of traffic infraction, failed to appear at a requested hearing, violated a written promise to appear in court, or has failed to comply with the terms of a notice of traffic infraction or citation, other than for a standing, stopping, or parking violation, provided that the traffic infraction ortraffic offense is committed on or afterJuly 1, 2005." Majority at 9 (quoting former RCW 46.20.289). Fourth, the majority reasons that each of the three statutes referenced in former RCW 46.20.289 defines one or two ofthe four prongs in former RCW 46.20.342(1)(c)(iv)-the statute referenced at the outset. Majority at 9-10. This serial incorporation is obscure, to say the least. Each of these statutes governs a different aspect of the regulation of driving privileges. Former RCW 46.63.070(6), 46.63.110(6), and 46.64.025 tell the court to notify Department of Licensing (DOL) in very specific situations. Former RCW 46.20.289 tells DOL to suspend driving privileges upon notification. Former RCW 46.20.342(1)(c)(iv) tells the court to convict a person of OWLS 3d for driving with license suspended for specific reasons. Nothing in the statutes indicates that the legislature intended that they be read serially in this manner. The majority's approach contrasts starkly with the specificity with which the legislature regulated driving privileges in these statutes. If the legislature had intended that a driver be guilty of OWLS 3d for driving after

5State v. Johnson (Stephen Chriss) Wiggins, J., dissenting driving privileges were suspended for failure to pay a fine or penalty, surely the legislature would have said so. Criminal statutes must be construed in the manner in which an ordinary citizen would understand their terms. State v. Shipp, 93 Wn.2d 510, 515-16, 610 P.2d 1322 (1980) (citing Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948); City ofSeattle v. Pullman, 82 Wn.2d 794, 797, 514 P.2d 1059 (1973)). It strains credulity to imagine that an ordinary citizen would read into former RCW 46.20.342(1)(c)(iv) the double incorporation the majority reads into the statutory scheme. The majority argues that my interpretation of the statutory scheme renders "the legislature's reference to former RCW 46.63.110(6) in former RCW 46.20.289

..

. either entirely superfluous or utterly nonsensical

...." Majority at 10. Not at all. One option for responding to a notice of infraction is to respond that one is enclosing
a check forthe fine shown on the notice. A cited person who checks the appropriate box but fails to enclose the check has "responded" to the notice of infraction, but they have failed to comply with the terms ofthe notice. Former RCW 46.63.110(6) would govern this situation. Accordingly, the reference to former section .110(6) is neither superfluous or nonsensical. The majority offers as a "comparative example" RCW 46.61.520, which defines vehicular homicide to include operating a motor vehicle under the influence of intoxicating liquor or any drug "'as defined by RCW46.61.502

. ..."' Majority at 15 (emphasis added) (quoting RCW 46.61.502). This case would be comparable if 6State v. Johnson (Stephen Chriss) Wiggins, J., dissenting RCW 46.20.342(1)(c) provided that a person may be guilty of OWLS 3d by driving with a license suspended for failure to comply with the terms of a notice of traffic infraction, defined under RCW 46. 63. 110(6) as grounds for suspension of the person's driver's license or driver's privilege. But of course there is no such language in either section .342(1)(c) or section .110(6). Even if it were permissible to read into former RCW 46.20.342(1)(c)(iv) the double incorporation ofstatutes on which the majority relies, the majority's reasoning still collapses. The majority reasons: former RCW46.20.342(1)(c)(iv) defines OWLS 3d to include failure "to comply with the terms of a notice of traffic infraction or citation, as provided in [former] RCW 46.20.289"; [former] RCW 46.20.289 incorporates [former] RCW 46.63.110(6); [former] RCW 46.63.110(6)(b) provides that the DOL must suspend driving privileges for failure to pay monetary penalties; therefore, failure to comply with the terms of a notice of traffic infraction or citation must include failure to pay monetary penalties. This logic depends on tying the failure to pay monetary penalties back to a term of a notice of traffic infraction. As noted earlier in this dissent, the only term in the notice of infraction requiring payment of a monetary penalty is one of the three response options: instead of contesting the infraction, the driver may send paymentto the court for the amount of the penalty stated on the notice. Accordingly, even if failure "to comply with the terms" includes failure to pay, it can refer only to the option of paying the stated penalty instead of going to court to contest the notice. But Johnson cannot be guilty

7State v. Johnson (Stephen Chriss) Wiggins, J., dissenting of violating this alternative because he complied instead with the alternative of appearing in court to contest the violation. Former RCW 46.20.342(1)(c)(iv) defines a crime. We cannot require citizens to puzzle out the meaning of obscure language in a statute and to follow a trail of statutes to pile one unclear reference upon another to arrive at the definition of the crime. Johnson complied with the terms ofthe statutory language. I cannot find that the crime is defined by cross-references directed at the DOL.

8State v. Johnson (Stephen Chriss) Wiggins, J., dissenting Accordingly, I respectfully dissent.

9