IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON KAI NIELSEN, Appellant,

v. WASHINGTON STATE DEPARTMENT OF LICENSING, Respondent. DIVISION ONE No. 68133-8-

PUBLISHED OPINION
FILED: September 30, 2013 o

en



### Dwyer, J. —Washington's implied consent law provides for the revocation of a licensee's driver's license where the licensee is arrested for driving while underthe influence and refuses to submit to a blood or breath alcohol test. The 

### law provides such licensees with procedural protections, including the rightto 

### appeal to the superior courtfrom an administrative license revocation. Following license revocation, the licensee can apply for an ignition interlock driver's license 

### (IIDL), which allows the licensee to lawfully operate a motorvehicleduring the revocation. However, the IIDL statute precludes a licensee who obtains an IIDL 

### fromthereafter asserting the statutory right to judicialappeal from the administrative decision imposing the revocation.No. 68133-8-1/2
Kai Nielsen obtained an IIDL following the administrative revocation of his driver's license pursuant to the implied consent law. He thereafter appealed from the Department of Licensing's revocation ruling, seeking review ofthe ruling in the superior court. The court dismissed Nielsen's appeal, determining that he had waived his right to judicial review by obtaining an IIDL. Nielsen challenges the superior court's decision, asserting that the appeal waiver provision is unconstitutional. We conclude that the challenged provision, which is not rationally related to a legitimate state interest, violates substantive due process 

### protections. Accordingly, we determine thatthe appeal waiver provision of the
IIDL statute is unconstitutional.
I 

### Washington's impliedconsent lawwas passed by popular initiative in 1968. Laws of 1969, ch. 1, § 1 (Initiative Measure No. 242, adopted Nov. 5, 

### 1968); State v. Morales. 173 Wn.2d 560, 571-72, 269 P.3d 263 (2012). Codified at RCW46.20.308, the law "provides law enforcement officers with an effective
means of obtaining physical evidence of intoxication since any person operating

a motor vehicle on the roads ofthis state is deemed to have consented to the administration ofa blood alcohol test." State v. Bartels, 112 Wn.2d 882, 885, 774 

### P.2d 1183 (1989). "Ifthe driver refuses to take the test, the driver's license, 

### permit, or privilege to drivewill be revoked or denied for at leastone year." RCW 46.20.308(2)(a). 

### The people ofWashington, inpassing the implied consent initiative, 

### provided procedural protections to licensees who are subjectto administrative
-2-No. 68133-8-1/3 

### licenserevocation pursuant to thatlaw. See Laws of1969, ch. 1,§ 5.1 The statute provides to such licensees an administrative hearing before a Department hearing officer to contest the license revocation. RCW 46.20.308(6)(b), .308(8). Moreover, where the license revocation is sustained by the Department hearing officer, the implied consent law grants to the licensee the right to access the courts in order to challenge the administrative revocation: Ifthe suspension, revocation, or denial is sustained after such a hearing, the person whose license, privilege, or permit is suspended, revoked, or denied has the right to file a petition in the superior court ofthe county ofarrestto review the final order of revocation by the department inthe same manner as an appeal from a decision of a court of limited jurisdiction. RCW 46.20.308(9). The license revocation may not be stayed during the 

### pendency ofthe appeal unless the court determines that the licensee "is likelyto 

### prevail inthe appeal" and that he or she "will suffer irreparable injury" without a 

### stay.2 RCW46.20.308(9). In2008, our legislature enacted legislation providing for the issuance of an IIDL to licensees whose regular driver's licenses had been revoked pursuant to

1As enacted in 1969, the law provided: Ifthe revocation or determination that there should be a denial of issuance is sustained after [an administrative] hearing, the person whose license, privilege or permit is so affected shall have the right to file a petition in the superior court of the county wherein he resides, or, if a nonresident of this state, where the charge arose, to review the final order of revocation or denial by the department inthe manner provided in RCW 46.20.334. Laws of 1969, ch. 1, §5. 2This exacting standardfor obtaining a stayduring thependency of an appealfrom an administrative revocation decision was not included in the initiative passed by the people of Washington in 1968. Rather, our legislature added this language byamendmentof RCW 46.20.308 in 1995. See Laws of 1995, ch. 332, § 1.No. 68133-8-1/4 

### theimplied consentlaw. RCW46.20.385(1)(a).3 An IIDL is a permitissued by the Department "that allows the person to operate a noncommercial motor vehicle with an ignition interlock device while the person's regulardriver's license 

### is suspended, revoked, or denied." RCW46.04.217. The licensee may apply for


### an IIDL at any time, including upon receiving notice of the revocation. RCW 46.20.385(1 )(b). However, pursuantto RCW46.20.385(1 )(b), a person who receives an IIDL is thereafter not entitled to the procedural protections provided 

### by the implied consent law: "A person receiving an ignition interlockdriver's license waives his or her right to a hearing or appeal under RCW 46.20.308." 

### Legislative bill reports demonstrate the concern prompting our legislature to enactthe IIDL statute. According to testimony before the legislature, a large 

### number of people whose licenses had been revoked were nevertheless 

### continuing todrive. H.B. Rep. on Second SubstituteH.B. 3254, 60thLeg., Reg. Sess. (Wash. 2008). The ignition interlockdevice was described as "[technology 

### [that] will prevent peoplefrom driving drunk," and, thus, issuance of an IIDL was intended to "hold [drunk drivers] accountable." H.B. Rep. on Second Substitute H.B. 3254. Moreover, a legislative report noted that Department data showed a 

### "'significantdifference in the amount ofrecidivism'" between those drunk drivers who later had the ignition interlock device installed and those who did not. S.B.

3Thelaw also provides forthe issuance ofIIDLs to persons convicted ofdriving under the influence, being in physical control of a motorvehicle while under the influence, vehicular homicide while underthe influence, or vehicular assaultwhile under the influence. RCW 46.20.385(1 )(a).No. 68133-8-1/5 

### Rep. onSecond Substitute H.B. 3254, 60th Leg., Reg. Sess. (Wash. 2008).4 Thus, itappears logical to conclude that, inenacting the IIDL statute, our 

### legislature intended to reduce the incidence ofillegal drunk driving, thus protecting motorists in our state. 

### Pursuant to the implied consent law, Kai Nielsen's driver's license was 

### revoked for one yearfollowing his arrestfordriving under the influence and his subsequent refusal to submit to an alcohol breath test. Nielsen requested an 

### administrative hearing to challenge the revocation. Following the hearing, which was conducted bytelephone on May 12, 2011, the Department hearing officer sustained the revocation of Nielsen's driver's license. Nielsen thereafter applied 

### for an ignition interlock driver's license pursuant to RCW46.20.385. The IIDL application was granted. 

### Nielsen then filed a timely appeal in the Snohomish County Superior 

### Court, seekingjudicial review of the Department's revocation ruling. The 

### Departmentfiled a motion to dismissthe appeal, asserting that, pursuanttoRCW 46.20.385(1 )(b), Nielsen hadwaived hisrighttojudicial appeal when he applied for and received the IIDL. Nielsen responded, contending that the waiver 

### provision set forth in the IIDL statute—which precludes a person who has received an IIDL from asserting his or her right to seekjudicial review of the administrative decision pursuantto the implied consent law—violates the
4According to theDepartmentdataquoted in the Senate Bill Report, "'[o]nly 18percent of the drivers that installed an IID have a subsequent conviction for an alcohol related offense on theirdriving record, while over80percentofthosedrivers thatdid notget aninterlockdevice installed have a second orsubsequentoffense on record.'" S.B. Rep. on Second SubstituteH.B. 3254.No. 68133-8-1/6
constitutional rights to equal protection and due process ofthe law. On November 30, 2011, the superior court dismissed Nielsen's appeal of the Department's revocation ruling. Nielsen appeals.
II The question before us is whether RCW 46.20.385(1 )(b) violates the guarantees ofthe due process clauses ofour state and federal constitutions. We conclude that denying to those licensees who obtain an IIDL the right to access the courts to challenge a Department revocation ruling bears no rational relation to a legitimate state interest. Accordingly, the provision contravenes constitutional substantive due process protections. 

### Boththe Washington and the United States Constitutions mandate that no 

### person may be deprived oflife, liberty, or property withoutdue process of law. U.S. Const, amends. V, XIV, § 1; Wash. Const, art. I, § 3. "The due process clause ofthe Fourteenth Amendment confers both procedural and substantive 

### protections."5 Amunrud v. Bd. ofAppeals, 158Wn.2d 208, 216, 143 P.3d571 (2006) (citing Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994)): see also United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 5OurSupremeCourthas repeatedly iterated thatthe state due process clause is coextensive with and does not provide greater protection than the federal due process clause, in re Pers. Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 (2001) ("Washington's due process clause does not afford a broader due process protection than the Fourteenth Amendment"); In re Pers. Restraint ofMatteson. 142 Wn.2d 298, 310, 12 P.3d 585 (2000) (determining that "there are no material differences between the 'nearly identical' federal and state provisions," and, thus, that the state due process clause does not provide greater protection than the federal due process clause); State v. Manussier. 129 Wn.2d 652, 679, 921 P.2d 473 (1996) ("The [State v.] Gunwallf. 106 Wn.2d 54, 720 P.2d 808 (1986)] factors do not favor an independent inquiry under article I, section 3 of the state constitution.").No. 68133-8-1/7


### 95 L. Ed. 2d 697 (1987); Daniels v. Williams. 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). "Substantive due process protects against arbitrary and 

### capricious government action even when the decision to take action is pursuant to constitutionally adequate procedures." Amunrud, 158 Wn.2d at 218-19. It requires that "deprivations oflife, liberty, or property be substantively reasonable"; inotherwords, such deprivations are constitutionally infirm if not 

### "supported by some legitimate justification." Russell W. Galloway, Jr., Basic Substantive Due ProcessAnalysis, 26 U.S.F. L.Rev. 625, 625-26 (1992). 

### The level of review applied in a due process challenge depends upon the
nature ofthe interest involved. Amunrud. 158 Wn.2d at 219. Where the state 

### interferes with a fundamental right, we apply strict scrutiny; such an infringement 

### must be "narrowly tailored to serve a compellingstate interest." Amunrud, 158 Wn.2d at 220. "When state action does not affect a fundamental right, the proper standard of review is rational basis." Amunrud, 158 Wn.2d at 222. Rational 

### basis review requires that a challenged law be "rationally related to a legitimate state interest." Amunrud, 158 Wn.2d at 222. Applying this deferential standard,
we "assume the existence ofany necessary state offacts which [we] can 

### reasonably conceive in determining whether a rational relationship exists between the challenged law and a legitimate state interest." Amunrud, 158 Wn.2d at 222. "As relaxed and tolerant as the rational basis standard is, 

### however, the court's role is to assure that even underthis deferential standard of 

### review the challenged legislation is constitutional." DeYoungv. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998) (determining that statute was
-7-No. 68133-8-1/8 constitutionally infirm pursuant to the equal protection clause). Indeed, notwithstanding the strong presumption of constitutionality, the rational basis test "'is not a toothless one.'" Mathews v. DeCastro, 429 U.S. 181, 185, 97 S. Ct. 431, 50 L Ed. 2d 389 (1976) (quoting Mathews v. Lucas. 427 U.S. 495, 510, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976)). Here, Nielsen contends that the IIDLstatute's restriction on the right to 

### appeal from a Department revocation ruling bears no rational relationship to a legitimate state purpose and, accordingly, violates substantive due process protections. He asserts that the restriction "acts as a deterrent against seeking 

### review ofthe Department's decision to revoke a license." Br. of Appellant at 21. Indeed, obtaining an IIDL is effectively the only means to lawfully operate a motor 

## vehicle during anadministrative license revocation.6 Forthis reason, any licensee who must drive inorderto getto work or school—orto perform essential 

### family obligations, such as taking children to school—is stronglydiscouraged from seekingjudicial review of a Department revocation ruling. Thus, the provision challenged by Nielsen has the coercive effect ofdeterring licensees from asserting their right to judicial review of an administrative revocation decision pursuant to the implied consent law. 

### "'Fordue process protections to be implicated, there must be an individual 6In order toobtain a stayduring the pendency of an appeal from an administrative revocation decision, a licensee must demonstrate that he or she is "likely to prevail in the appeal" and would "suffer irreparable injury" were the requestfor a stay not granted. RCW 46.20.308(9). Accordingly, obtaining such a stay—and, thus, retaining the ability to lawfully operate a motor vehicle during an administrative license revocation—is not a substitute for obtaining an IIDL. Due to the exacting standard that must be met in order to obtain a stay, the coercive effect of the appeal waiverprovision is not appreciably lessened by the theoretical possibility that a request for a stay might be granted.
-8-No. 68133-8-1/9
interest asserted that is encompassed within the protection of life, liberty, or 

### property.'" Attorney General's Office, Pub. Counsel Section v. Util. &Transp. Comm'n, 128 Wn. App. 818,831, 116P.3d 1064 (2005) (guoting Silver Firs Town Homes, Inc. v. Silver Lake Water Dist., 103 Wn. App. 411, 425-26, 12P.3d 

### 1022 (2000)). RCW 46.20.385(1 )(b) denies to licensees who apply for and receive IIDLs the statutory right to access the courts to challenge a Department 

### revocation ruling. Thus, the interest implicated is the statutory procedural protection provided bythe impliedconsent law, RCW46.20.308(9): the right to 

### appeal from a Department revocation ruling and, thus, access the superiorcourt for a determination ofthe propriety ofthe license revocation. 

### The United States Supreme Court has held that the right to use statutory 

### adjudicatory procedures provided by state law constitutes a species ofproperty protected by the due process clause. Logan v.Zimmerman Brush Co., 455 U.S. 422, 428-31, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). There, the Court 

### determined that Logan had been deprived of a protected property interest when his claim underthe Illinois Fair Employment Practices Act (FEPA) was terminated due to a state official's failure to comply with statutorily-mandated 

### procedure. Logan, 455 U.S. at 424, 433. "The hallmark ofproperty," the Court explained, "is an individual entitlement grounded in state law, which cannot be removed except 'forcause.'" Logan, 455 U.S. at 430. Thus, the Court determined that an employee's statutory right to use FEPA's adjudicatory 

### procedures in challenging his or her termination was protected by the due process clause. Logan, 455 U.S. at 430-31. Moreover, the Court analogized to
-9-No. 68133-8-1/10

cases inwhich ithad determined that the "right of access to courts" constitutes a 

### due process right. Logan, 455 U.S. at 430 n.5; see also Ford Motor Co. v. Barrett, 115 Wn.2d 556, 569-70, 800 P.2d 367 (1990) (considering Ford Motor 

### Company's assertion that a statute violated due process by restricting a statutorily-granted right to appeal). 

### The statutory right to access the courts on appeal from a Department 

### revocation ruling has been available to licensees since the impliedconsent law


### was passed by the people of Washington in the 1968 general election. Laws of 1969, ch. 1, § 5. Thus, since the inception ofWashington's implied consent law, the right to judicialappeal has been available as a safeguard against erroneous executive branch action, in the form of imposing administrative license 

### revocations. Just as the right of an employee to use FEPA's adjudicatory 

### procedures to challenge a purportedly unlawful termination constitutes "an individual entitlement grounded instate law," Logan, 455 U.S. at 430, so, too, does the right of Washington state licensees to access our state's courts to 

### challenge an allegedly erroneous Departmentrevocation ruling. Although due process does notguarantee a rightto appeal, "'having made access to the courts an entitlement or a necessity, the State may not deprive someone of that access unless the balance ofstate and private interests favors the government 

### scheme.'" Ford Motor Co., 115 Wn.2d at 569 (quoting Logan, 455 U.S. at 430 

### n.5). The statutory right ofaccess to the courts provided by the implied consent lawconstitutes a property interest protected by the due process clause. "Access to the courts is not recognized, ofitself, as a fundamental right."
-10-No. 68133-8-1/11
Ford Motor Co., 115 Wn.2d at 562. Thus, as Nielsen concedes, the proper 

### standard of review here is rational basis.7 See Amunrud, 158 Wn.2d at 222. Accordingly, to comply with substantive due process protections, the appeal wavier provision setforth in RCW 46.20.385(1 )(b) must constitute a rational
means offurthering a legitimate government purpose. Although the rational basis standard is highly deferential, our role is nevertheless to ensure that the 

### challenged statute comports withdue process protections. See DeYoung, 136
Wn.2d at 144. 

### The Department asserts that RCW 46.20.385(1 )(b) furthers the legitimate 

### government interests in (1) maintaining the deterrent effect that the implied consent statute has on drunk driving, (2) conserving state resources, and (3) 

### obtaining finality oftheadministrative appeal process.8 According tothe

7TheDepartmentasserts thatsubstantive rights can be createdonly by fundamental interests derived from the Constitution and that the protections of substantive due process are limited to such matters as marriage, family, and procreation. This is clearlyincorrect. See Washington v. Glucksberq. 521 U.S. 702, 728, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (holding that the asserted righttoassisted suicide was not a fundamental right but, nevertheless, the Constitution required "thatWashington's assisted-suicide ban be rationally related to legitimate governmentinterests"); Medeiros v.Vincent. 431 F.3d 25, 32-33 (1stCir. 2005) (applying rational basis review to both equal protection and substantive due process challenges where nofundamental rightwas implicated); Amunrud, 158Wn.2d at 222 (applying rational basis review to substantive due process challenge where the court determined that the asserted rightto pursue an occupation does not constitute a fundamental right). Thus, the Department's contention that Nielsen cannot assert a viable substantive due process claim because the right to appeal is not a fundamental interest is without merit. 8TheDepartmentreferences these interestsin asserting thatRCW46.20.385(1 )(b) does not violate equal protection principles; indeed, the Department sets forth very little argument regarding Nielsen's due process claim. "Equal protection is concerned with the differencesin the waysimilarly-situated people are treated under a legislative scheme. Substantive due process is concerned with the fundamental fairness, and thus rational basis, forthe effect of any specific law on an individual." State v. Marintorres. 93 Wn. App. 442, 451 n.1, 969 P.2d 501 (1999). Nevertheless, these asserted interests, were they determined to be rationally related to the challenged statutoryprovision, are of a type that could sustain that provision against either a due process orequal protection challenge. Accordingly, we considerthese asserted government interests in the context of our due process analysis.
-11

-No. 68133-8-1/12 

### Department, these interests, considered together, demonstrate that the appeal waiver provision ofthe IIDL statute is rationally related to a legitimate state purpose. We disagree. 

### The Departmentfirst contends that RCW 46.20.385(1 )(b) furthers the 

### government interest in "maintaining the deterrenteffectthe impliedconsent 

### statute has on drunk driving." Br. ofResp't at 19. The Department contends that ifthe statutory scheme were to allow a driver to completely evade the consequences of driving under the influence by obtaining an IIDL and the ability to continue driving while also being allowed to 

### proceed with a challenge to the suspension, itwould undermine the deterrent effect ofthe suspension. 

### Br. ofResp't at 24. According to the Department, RCW 46.20.385(1 )(b)evinces


### a legislative intenttopreclude licenseesfrom "hav[ing] their cake andeat[ing] it too." Br. ofResp't at 29. However, a licensee does notevade the consequences 

### imposed bythe implied consent law simply because he or she has the rightto challenge an administrative licenserevocation in the superiorcourt. Indeed, the procedural protections provided bythe implied consent law, including the rightto judicial review of an administrative revocation ruling, are the means of determining whether such consequences were properly imposed. 

### Moreover, Department data considered by the legislaturein enacting the IIDL statute demonstrates that installation of the ignition interlock device greatly 

### reduces drunkdriving recidivism rates. S.B. Rep. on Second Substitute H.B. 3254. This suggests that providing IIDLs to alllicensees whose licenses have 

### been revoked pursuantto the implied consent law provides the greatest deterrent effect. Thus, the appeal waiver provision, to the extentthat itdiscourages
-12-No. 68133-8-1/13 

### licensees from obtaining an IIDL inorderto preserve their right to judicial appeal, actually decreases the deterrent effect of our state's drunk driving legislation. The purpose ofthe IIDL statute is to reduce the incidence of illegal driving, 

### including drunk driving, during license revocation, thus protecting Washington motorists. By precluding licensees who wish to appeal from a revocation 

### decision from obtaining an IIDL, RCW 46.20.385(1 )(b)subverts the purpose of
the IIDL statute itself. 

### The Department additionallyasserts that the conservation ofstate
resources constitutes a legitimategovernment interestjustifying the appeal 

### waiverprovision. The challenged statutory provision, however, must be a rational means of achieving a legitimate government interest. As explained below, administrative resources for implementing the IIDL program are 

### conserved only by denyingIIDLs—and, thus, the ability to lawfully operate a motorvehicleduring a period of license revocation—to those persons whose licenses were wrongfully revoked by the Department. Procuring administrative 

### savingsin such a manner does notconstitute a rational means offurthering the asserted government interest. 

### The IIDL statutory scheme denies only to those licensees who have 

### already obtained an IIDL the righttojudicial review provided by the implied consent law. A licensee whose license has been administratively revoked can 

### apply for an IIDL "anytime." RCW46.20.385(1)(b). Thus, the licensee can obtain an administrative hearing to challenge the revocation, then appeal to the 

### superiorcourtfrom an adverse final administrative ruling, and thereafterapply for
-13-No. 68133-8-1/14
and receive an IIDL in those circumstances in which the superior court affirms the administrative ruling. Only those licensees who apply for and receive an IIDL 

### prior to asserting their procedural rights pursuant to the implied consent law are,
as a result, denied those rights. RCW 46.20.385(1 )(b) ("Aperson receiving an 

### ignition interlock driver's license waives his or her right to a hearing or appeal under RCW 46.20.308."). Thus, where a license is properly revoked by the 

### Department—in otherwords, where the revocation is, or would be, upheld in the 

### superior court—no administrative resources required to process an IIDL application are saved. Such licensees can always receive an IIDL—either prior 

### to appealing from the Department's final ruling or after the Department prevailsin the superior court. 

### Instead, administrative savings are procured only with regard to those licensees whose licenses are wrongfully revoked by the Department—in other 

### words, those licensees who prevail, or wouldprevail, onjudicial appeal. Such licensees would obtain an IIDL only prior to appeal from the Department's 

### revocationruling, as they would have no need for an IIDL after prevailing on 

### appeal. Thus, administrative resources necessary to process an IIDL application are conserved only byprecluding those persons whowould prevail on appeal from obtaining an IIDL priorto successfully appealing from the administrative 

### revocation decision.9 Accordingly, administrative savings are accrued only by

9More accurately, suchadministrative resources are conservedonly by denying IIDLs to those persons whowould notclearly qualify for a stayoftherevocation during thependency of the appeal but whowould nevertheless prevail onjudicial review. However, even where a superiorcourtjudge determines that a licensee islikely toprevail on appeal, a stay cannot be
-14-No. 68133-8-1/15 refusing to allow mitigation ofthe damage done to those persons whose licenses

were wrongfully revoked by the Department. This turns the statutory scheme on its head. Because procuring administrative savings in such a manner is not a rationalmeans by which to further the government's interest in conserving state 

### resources, thatinterestcannotjustifythechallenged statutory provision.10 Finally, the Department asserts thatthere is a legitimate state interest in administrative finality, and that denying access to the courts furthers this interest. Since the inception ofstatehood, however, our constitution has provided for a 

### restrictive review ofagency decisions by writ of certiorari. Wash. Const, art. IV, 

### § 6. While resort to this procedure wouldlikely be oflittle aid to people such as Nielsen—because ofthe writ's severely restrictive scope—the existence in the 

### constitution of this provision indicates that our state's founders did notconsider 

### administrative finality to be an interest worth ensuring. To the contrary, by 

### inserting this provision into the constitution, the founders expressed a suspicion ofexecutive branch decision-making leftunchecked by judicial review. The 

### Department's claim that administrativefinality is a legitimate state interest justifying the challenged statutory provision is unavailing.
granted unless the licensee also demonstrates that,without a stay, he or she will "suffer irreparable injury." RCW46.20.308(9). This standard, enacted by our legislaturein 1995, is clearly intended to preclude most licensees from obtaining a stay of revocation during the pendency of an appeal, thus preventinglicensees from retaining the ability to lawfully operate a motor vehicle (without an IIDL) while challenging a license revocation. 10 Moreover, because a licensee must pay a considerable fee in order to applyfor an IIDL, the extent of the administrative costofprocessing an IIDL application is unclear. See RCW 46.20.380(providing that no person mayfile an application for an IIDL withoutfirst paying to the Department"a fee of one hundreddollars"). Thus, administrative resources are conserved only bydenying IIDLs to a small group of licensees (those whowould prevail on appeal) and only to the extent that application processing costs exceed the amount of the application fee charged.
15No. 68133-8-1/16 Denying to licensees who obtain IIDLsthe right to access the courts in 

### orderto challenge a Department revocation rulingdoes not further the state's interest in maintaining the deterrent effect of its drunk driving laws. Indeed, by 

### discouraging licensees from obtaining IIDLs, it directly conflicts withthat interest. Moreover, conserving administrative resources by refusing to mitigate the 

### damage done to those persons whose licenses were wrongfully revoked is not a rational means of furthering that government interest. Finally, the asserted merit ofadministrative finality does not constitute a sufficient government interestto 

### justify denial of the statutorily-granted right to access the courts. Because there is no rational basis forthe challenged legislative provision, we holdthat itviolates 

### substantive due processprotections.11
Reversed.

We concur:

11 Because we determine that the appeal waiverprovision of the IIDL statute is unconstitutional in violation of the due process clause, we do not address Nielsen's contention that the provision violates equal protection guarantees. -16-Kai Nielsen v. Washington State Department of Licensing, No. 68133-8-1 

### Verellen, J. (dissenting)

— Irespectfully dissent. The legislature has decided that drivers challenging the revocation of their license underWashington's implied consent statute may obtain a specialty ignition interlock driver's license (Interlock License) afterthe drivers either abandon or conclude their challenge to the revocation. It is a matter oflegislative grace whetherto allow interim reliefduring an appeal of a license revocation. It is not irrational to require a licensee whose license has been revoked to first pursue his statutory appeal to conclusion before becoming eligible for a specialty license. Even though policy arguments may favor broader access to the specialty license, it is the province ofthe legislature to choose how and when a licensee 

### may seekthe specialty driver's license. Kai Nielsen does not establish that delaying

access to the specialty license violates equal protection or substantive due process. Substantive Due Process Substantive due process generally asks whether the government abused its power by arbitrarily depriving a person of a constitutionally protected interest in life, 

### liberty orproperty.1 AsNielsen concedes, no fundamental right is atissue,2 and the proper standard here is rational basis review. Rational basis review requires that a 

### 1Nieshe v. Concrete Sch. Dist.. 129Wn. App. 632, 640-41, 127P.3d 713 (2005) (emphasis omitted). 

### 2Nielsen alleges he isdeprived ofaccess to thecourts, butaccess to thecourts is not, in itself, a fundamental right. Ford Motor Co.. 115 Wn.2d at 562, 569. However, ifthe legislature creates an entitlement to access to the courts, "the State may not deprive someone ofthat access unless the balance of state and private interests favors the government scheme." ]d_, at 569; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-31, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982).No. 68133-8-1/2 (dissent) 

### challenged law be"rationally related to a legitimate state interest."3 In applying the substantive due process test, wegive deferencetolegislative policy decisions.4 In doing so, we "assume the existence of any necessary state offacts which [we] can reasonably conceive in determining whether a rational relationship exists between the 

### challenged law and a legitimate state interest."5 Theregulation mayonly bestruck down ifthere is no rational connection between the challenged statute and a legitimate 

### governmentobjective.6 Indeed, thedeferential rational basisstandard may besatisfied

even where the "'legislative choice . . . [is] based on rational speculation unsupported by 

### evidence orempirical data.'"7 Nielsen asserts there is no legitimate state interest in preventing licensees who obtain Interlock Licenses from appealing the underlying revocation, and further asserts that a rational relationship does not exist between the appeal waiver provision and any state interest. Nielsen's substantive due process theory relies on an inaccurate reading ofthe appeal waiver provision. The statutory scheme does not deprive licensees ofthe right to appeal the Department's action. The licensee may both appeal and receive an Interlock License; the law simply requires a licensee to pursue the appeal to completion before receiving the Interlock License. Because there is no deprivation ofthe right to

access the courts, Iwould conclude Nielsen's substantive due process claim fails. 

### 3Amunrud v. Bd. ofAppeals, 158Wn.2d 208,222, 143 P.3d571 (2006). 4Jones v. King County. 74Wn. App. 467, 479, 874 P.2d 853 (1994). 5Amunrud, 158 Wn.2d at 222. 

### 6lcL 7DeYoung v. ProvidenceMed. Ctr., 136Wn.2d 136, 148, 960 P.2d 919 (1998) (alterations in original) (quoting F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L Ed. 2d 211 (1993)).No. 68133-8-1/3 (dissent) Further, even assuming an actionable deprivation, it is rational to require that a party conclude the statutory appeal process before obtaining special relief from the revocation. The Department argues that substantive due process is not denied because "the legislature reasonably determined not to provide drivers the continued 

### privilege to drive with an [Interlock License] despite the suspended or revoked status of their driver's license and simultaneously still be able to continue to challenge the 

### suspensionfor revocation."8 In anynumberofsettings, thelegislature hasprovided for administrative hearings that may culminate in an appeal to the courts. Inherent in 

### designing such a process is the legislature's authority to determine ifany interim relief 

### should beavailable during thependency oftheappeal.9 The majoritynotes thatwidelyallowing InterlockLicenses without regard to the appeal process betterfulfills the goal of avoiding unlawful driving. However, rational basis review only requires some rational relationship between the means and the ends, 

### not the best and mosteffective relationship.10 Whetheror not the legislature considered that a licensee might choose to forego an appeal to immediately obtain an Interlock 

### License, the legislature has a legitimate interest in defining when, if, and how any interim relief should be available to an appellant during the appeal process. The


### 8Respondent's Br. at 29. 

### 9Thelegislature has often defined the scope of anyinterim reliefin thecontextof administrative appeals. For example, RCW 34.05.550 authorizes courts to grant a stay 

### in an administrative appeal and othertemporary remedies to applicants potentially 

### harmed byagency action. See Gen. Tel. Co. of the Nw., Inc. v. Wash. Utils. &Transp. Comm'n. 104Wn.2d 460, 706 P.2d 625 (1985) (discussing RCW 80.04.180, which 

### provides telephone companies interim relief in the form of a supersedeas order allowing higher rates because the utility made a showing ofirreparable damage). 10 Manussier. 129 Wn.2d at 673; Coria. 120 Wn.2d at 173.No. 68133-8-1/4 (dissent) legislature may rationally preferthat the statutory appeal be exhausted withoutthe availability of interim reliefbefore a specialty license becomes available. By analogy, there are good policy reasons supporting stays during an appeal for 

### thosewho candemonstrate irreparable harm,11 butitwould notdeny substantivedue process ifthe legislature designed an appeal process that does not provide for any stays. Procedural due process requirements ofnotice and hearing may implicate the availability of a stay, but even inthis setting it is recognized that 

### the stay ofsuspension while a driver appeals his case to superior court [is] a matter of legislative grace and well beyond the due process requirements ofthe state and federal constitutions. The due process clause does not require the State to afford an indefinite stay oflicense suspension to a driver with an extensive record ofviolations while he 

### exhaustsall possible appeals.[12] Nielsen essentially argues the legislature must choose eitherto allow Interlock Licenses for everyone at every stage ofthe appeal, or for no one at all. Nielsen 

### provides no authority thatthe legislature is compelled to grant interim relief to all appellants throughout the appeal process. To the extentthat Nielsen suggests that the waiver provision has the practical impact of forcing revoked drivers to choose between the Interlock License and an appeal to superior court, with the resulting risk that such



### 11 RCW46.20.308(9). 12 Mentorv. Nelson. 31 Wn.App. 615, 619-20, 644 P.2d 685 (1982) (citations omitted): see also Dep't of Licensing v. Ramirez. 34 Wn. App. 430, 435, 661 P.2d 1009 

### (1983) ("The stay [of revocation] is purely a matter of legislative grace which goes 

### beyond the due process requirements of the state and federal constitutions. We hold a driver's interest is adequately protected if he is allowed to make application for a stay and have the Department consider his request; this can be accomplished without a formal hearing.").No. 68133-8-1/5 (dissent) 

### drivers may choose to drive unlawfully, he raises policyquestions forthe legislature to consider.13 Equal Protection Underthe Washington and federal constitutions, persons similarly situated with 

### respect to thelegitimate purposes ofthelaw are guaranteed equaltreatment.14 "Where neither a suspect classification nor a fundamental right is at issue, a rational basis test is the appropriate one for determining whether a violation ofequal protection ofthe law 

### hasoccurred."15 Rational basisreview ofanalleged equal protection violation requires

us to uphold a legislative classification unless itrests on grounds wholly irrelevantto the 

### achievementoflegitimate stateobjectives.16 Theperson challenging thelaw must establish that theclassification ispurely arbitrary.17,18



### 13 In fact, a new law provides that"[w]hen anyperson charged with orarrested for a violation of RCW 46.61.502, 46.61.504, or 46.61.522, in which the person has a prior offense as defined in RCW46.61.5055 and the current offense involves alcohol," an interlock device must be installed as a condition of release from "custody before arraignment or trial on bail or personal recognizance." Laws of2013, 2d Spec. Sess., ch. 35, §1. 

### 14Wash. Const, art. I, § 12;U.S. Const, amend. XIV; State v. Manussier. 129 Wn.2d 652, 672, 921 P.2d 473 (1996). 

### 15 Ford MotorCo. v. Barrett, 115Wn.2d 556, 562, 800 P.2d 367 (1990). 

### 16 Statev. Coria, 120Wn.2d 156, 169, 839P.2d 890(1992). 17 Manussier. 129 Wn.2d at 673. 

### 18 Underrational basisreview, webegin with a presumption in favor ofthe constitutionality of a statute or statutory scheme. Paulson v. Pierce County. 99 Wn.2d 645, 653, 664 P.2d 1202 (1983); Merseal v. Dep't of Licensing. 99 Wn. App. 414, 420, 994 P.2d 262 (2000). To overcome this presumption, the challenger must show that the classification applies unequally to those within a class, that no real basis exists for distinguishing between classes, orthat the classification bears no rational relation to the statute's purpose. Yakima County Deputy Sheriffs Ass'n v. Bd. of Comm'rs. 92 Wn.2d 831, 835-36, 601 P.2d 936 (1979).No. 68133-8-1/6 (dissent) Nielsen asserts that RCW 46.20.385(1 )(b) creates an impermissible classification because ittreats those licensees who seek review ofthe license revocation differently than those licensees who receive an Interlock License and do not seek review ofthe revocation. He specifically contends that those licensees who do not receive an Interlock License retain their statutory right to appeal the revocation, whereas those who receive an Interlock License relinquish the statutory right to appeal. Ifind Nielsen's argument unpersuasive. Equal protection addresses differential treatment of groups or classes of people who are similarly situated. The legislature, in offering the Interlock License to those who have had their licenses suspended, revoked

or denied, treats all licensees on an equal basis, with no possibility of differential 

### treatment. The legislative framework simply provides two different pathways by which to obtain an Interlock License. A licensee may immediately apply for and obtain an Interlock License without appealing the suspension, revocation, or denial. Alternatively,

a licensee may also obtain an Interlock License afterpursuing the administrative 

### hearing and appeal in superiorcourt.19 Nothing in RCW46.20.385 prevents such an approach. RCW 46.20.385(1 )(b) specifically provides that "[a] person may apply for an ignition interlock driver's license anytime." As our Supreme Court has recognized, "[paramountto the equal protection clause is the idea that all individuals within one group must be treated equally. Ifthis is 

### true, the equalprotection issatisfied and theanalysis may end."20 Because a licensee

19 Ofcourse, there is no need forthe specialty licenseifthe appeal is successful. 20 Guardianship Estate of Keffeler ex rel. Pierce v. State, 151 Wn.2d 331, 340, 88 P.3d 949 (2004).No. 68133-8-1/7 (dissent) 

### may both pursue an appeal and receive an Interlock License, Iwould conclude Nielsen fails to make the threshold showing of differential treatment. Iwould affirm the superior court.