City of Seattle v. Fuller ( 2013 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF SEATTLE, )
) No. 86148-0
Respondent, )
)
v. ) EnBanc
)
DONALD E. FULLER, )
)
Petitioner. ) Filed MAY 02 2013
MADSEN, C.J.-Historically, the legislature granted all courts the authority to
impose restitution. In 1996, the legislature amended two statutes addressing restitution,
RCW 9.92.060 and RCW 9.95.21 0, adding language which the defendant, Donald Fuller,
contends divested municipal courts of this authority, except in limited circumstances.
Considering the amendments to these statutes in light of the legislature's intent and the
surrounding statutes and case law, we hold that the amendments did not alter the
authority of municipal courts to impose restitution and we affirm the Court of Appeals.
FACTS
Donald Fuller was charged in Seattle Municipal Court with one count of
obstructing a law enforcement officer under RCW 9A.76.020 and one count of assault
No. 86148-0
under SMC 12A. 16.010. Following a jury trial, Fuller was acquitted of assault but
convicted of obstructing a law enforcement officer. He was sentenced to 365 days in jail
with 358 suspended, a $5,000 fine with $5;000 suspended, and he was ordered to pay
restitution.
Fuller appealed to the King County Superior Court, arguing that the municipal
court lacked the authority to order restitution and that restitution may only be imposed in
lieu of a fine under RCW 9A.20.030. The superior court rejected this argument, holding
that the trial court did not abuse its discretion by ordering restitution and that it had the
authority to order both restitution and a fine under the reasoning of State v. Barnett, 36
Wn. App. 560, 562, 675 P.2d 626 (1984). Fuller filed a motion for reconsideration that
was denied. He then filed a motion for discretionary review in the Court of Appeals,
which held that RCW 35.20.010(1) (granting courts the powers and jurisdiction generally
conferred in the state by common law or statute) gives the municipal court authority to
impose both a fine and restitution. 1
ANALYSIS
Fuller claims that Seattle Municipal Court exceeded its authority when the court
imposed restitution in addition to a fine and a suspended jail sentence. Specifically, he
argues that the 1996 amendments to RCW 9.92.060(2) and RCW 9.95.210(2) divested
Seattle Municipal Court of its authority to impose restitution as a condition of sentencing.
1
While this case was pending, the municipal court granted the city's motion to vacate Fuller's
conviction.
2
No. 86148-0
Prior to 1996, RCW 9.92.060(2) and RCW 9.95.210(2) authorized all courts to
impose restitution as a condition of suspending sentences. Former RCW 9.92.060(2)
(1995) provided that, as part of an order suspending sentence, "[t]he court may require
the convicted person ... to make restitution," and former RCW 9.95.210(2) (1995)
similarly stated that "[t]he court may also require the defendant to ... make restitution"
as a condition of probation.
In 1996, the legislature amended these statutes to include the word "superior"
preceding "court." LAws OF 1996, ch. 298, §§ 3, 5. 2 Fuller argues that these
amendments limit the authority to impose restitution to superior courts and that our
analysis should end with the language of the statutes. However, read in isolation, these
statutes tell us nothing about a municipal court's authority to impose restitution. Instead,
2
In relevant part, RCW 9.92.060(2) now provides:
As a condition to suspension of sentence, the superior court ... may require the
convicted person to make such monetary payments, on such terms as the superior
court deems appropriate under the circumstances, as are necessary: ... (b) to
make restitution to any person or persons who may have suffered loss or damage
by reason of the commission of the crime in question or when the offender pleads
guilty to a lesser offense or fewer offenses and agrees with the prosecutor's
recommendation that the offender be required to pay restitution to a victim of an
offense or offenses which are not prosecuted pursuant to a plea agreement.
Similarly, following the 1996 amendments, RCW 9.95.210(2) provides:
In the order granting probation and as a condition thereof, the superior court may
... also require the defendant to make such monetary payments, on such terms as
it deems appropriate under the circumstances, as are necessary: ... (b) to make
restitution to any person or persons who may have suffered loss or damage by
reason of the commission of the crime in question or when the offender pleads
guilty to a lesser offense or fewer offenses and agrees with the prosecutor's
recommendation that the offender be required to pay restitution to a victim of an
offense or offenses which are not prosecuted pursuant to a plea agreement.
3
No. 86148-0
a proper resolution of the issue presented requires a review of the suspended sentencing
and probation statutes and the interplay of other related statutes and case law.
The first act authorizing suspended sentences provided for suspending the
sentences of persons under 21 years of age, convicted in superior court of a misdemeanor
or felony. LAws OF 1905, ch. 24, § 1. In 1909, that chapter was repealed and the
legislature created a criminal code. LAws OF 1909, ch. 249. Section 28 of the new act
maintained much of the language from the original law but deleted the word "superior"
before "courts," among other changes not relevant to this case. LAWS OF 1909, ch. 249, §
28. In 1921, the statute was amended to apply to all convicted persons, not merely those
under 21. Subsequently, there was a question as to whether the legislature had intended
the statute to apply to all courts when it eliminated the age limit. State v. Willey, 168
Wash. 340, 343, 12 P.2d 393 (1932). In Willey, the court held that the absence of both
the terms limiting the statutory provisions to superior courts and any language suggesting
the legislature intended to discriminate between defendants convicted of the same crimes
in justice of the peace courts and in superior courts indicated the legislature meant the
statute to apply to all courts. !d.
In 1939, the probation statute was enacted, authorizing courts to impose restitution
as a condition of probation. REM. REv. STAT. § 10249-5b. Ten years later, the
3
suspended sentence statute was amended to include similar restitution powers. REM.
REv. STAT. § 2280 (Supp. 1949). These statutes were again amended in 1996, and
3
The suspended sentence and probation statutes were codified under the current code in 1950.
RCW 1.04.010.
4
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"superior" was reinserted preceding "court" throughout both RCW 9.92.060(2) and RCW
9.95.210(2). LAWS OF 1996, ch. 298, §§ 3, 5. The bill report accompanying the 1996
amendments reveals the purpose of the amendments was to authorize the Department of
Corrections (DOC) to supervise misdemeanants and gross misdemeanants sentenced in
superior court, while still allowing the counties to supervise misdemeanants and gross
misdemeanants in district court. FINAL B. REP. on Substitute H.B. 2533, 54th Leg., Reg.
Sess. (Wash. 1996). DOC previously had this authority until1994, when a budget
condition removed that authority. !d. The bill report does not mention restitution. !d.
The fundamental purpose in construing statutes is to ascertain and carry out
legislative intent. Arborwood Idaho, LLC v. City ofKennewick, 151 Wn.2d 359, 367, 89
P.3d 217 (2004). The legislature's intent can be discovered from the plain meaning of
the statute, which is determined "from all that the Legislature has said in the statute and
related statutes which disclose legislative intent about the provision in question." Dep 't
of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). The court
must not add words where the legislature has chosen not to include them, and the statute
must be construed so that all language is given effect. Restaurant Dev., Inc. v.
Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003). Ifthe statute remains
susceptible to more than one reasonable meaning, it is ambiguous and the legislative
history and circumstances surrounding its enactment may be considered. !d.
Constructions that yield unlikely, absurd, or strained consequences must be avoided.
Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).
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A plain reading ofRCW 9.92.060(2) and RCW 9.95.210(2) demonstrates that
these statutes only address the authority of superior courts to impose restitution and thus
do not themselves provide such authority to limited jurisdiction courts. However, these
courts derive authority from multiple sources, including RCW 35.20.250 4 and RCW
35.20.010(1), 5 which grant municipal courts concurrent jurisdiction with and general
powers of superior and district courts. See City of Seattle v. Briggs, 109 Wn. App. 484,
489-90, 38 P.3d 349 (2001) (determining that RCW 35.20.030 did not define the full
jurisdiction of municipal courts and that RCW 35.20.250 expressly gave municipal courts
concurrent jurisdiction over misdemeanors). In the absence of a contrary statutory intent,
these statutes may grant limited jurisdiction courts the same restitution powers possessed
by superior court. See Avlonitis v. Seattle Dist. Ct., 97 Wn.2d 131, 136-37,641 P.2d 169,
646 P.2d 128 (1982) (limiting the exercise of powers under RCW 35.20.250 to criminal
cases involving concurrent jurisdiction and also stating that, arguably, the municipal
court could suspend a sentence in the manner authorized for justice courts); State v.
Wicklund, 96 Wn.2d 798, 803-04, 638 P.2d 1241 (1982).
The question here is whether the 1996 amendments to RCW 9.92.060(2) and
RCW 9.95.210(2) evidence the legislature's intent to limit the authority to order
restitution to superior courts and thus limit the application ofRCW 35.20.250 and RCW
4
RCW 35.20.250 grants "concurrent jurisdiction with the superior court and district court in all
civil and criminal matters as now provided by law for district judges" to municipal courts in
cities with populations over 400,000.
5
RCW 35.20.010(1) authorizes the creation of municipal courts in cities with populations over
400,000 and states that the courts "shall have jurisdiction and shall exercise all the powers by the
chapter declared to be vested in such municipal court, together with such powers and jurisdiction
as is generally conferred in this state by common law or statute."
6
No. 86148-0
35.20.010(1). In reviewing the language of the statutes at issue, along with related
statutes and case law, we believe the legislature did not intend to alter the power of
municipal courts to impose restitution.
Turning first to RCW 9.92.060(2) and RCW 9.95.210(2), we note that the
legislature did not limit superior courts to imposing restitution only in felony cases.
Thus, superior courts retain the authority to impose restitution in misdemeanor cases
heard in superior court. As noted, municipal courts have concurrent jurisdiction with
superior courts over misdemeanors "together with such powers" as "generally conferred
in this state by common law or statute." RCW 35.20.010(1). As in Willey, there is no
language in RCW 9.92.060(2) and RCW 9.95.210(2) suggesting the legislature intended
to discriminate between defendants convicted of the same crimes in superior courts and
municipal courts. Because superior courts have authority to impose restitution in
misdemeanor cases and municipal courts have concurrent jurisdiction over
misdemeanors, it is logical to conclude that the legislature did not intend to deprive
municipal courts of the power to impose restitution as a condition of suspending
sentence.
Indeed, the 1996 amendments to RCW 9.92.060(2) and RCW 9.95.210(2) have no
language restricting limited jurisdiction courts from imposing restitution. Rather, the
amendments simply grant superior courts that power. Thus, when RCW 35.20.010(1) is
read in conjunction with these statutes, municipal courts can derive restitution authority
because it is a power possessed by the superior court. To require all powers of a
7
No. 86148-0
municipal court to be expressly stated would render meaningless the language: "together
with such powers and jurisdiction as is generally conferred in this state either by common
law or statute." RCW 35.20.010(1).
The idea that powers possessed by one court should be conferred to another when
hearing the same cases was discussed in Wicklund, 96 Wn.2d at 804. In Wicklund, this
court analyzed whether RCW 3 .66.0 10 granted courts of limited jurisdiction the authority
to continue a proceeding to determine competency under RCW 10.77.090, repealed by
LAWS OF 2007, ch. 375, § 17. !d. at 803-04. RCW 3.66.010 is similar to RCW 35.20.010
in that it confers to district courts all the necessary powers possessed by courts of record.
The respondent in Wicklund contended that chapter 10.77 RCW contained numerous
references to "felonious acts" and did not affirmatively grant authority to courts of
limited jurisdiction, limiting those courts to only their inherent judicial powers to make
competency determinations. !d. at 801. This court disagreed and held that the power to
determine competency was a necessary power of all criminal courts. !d. at 804. Since
chapter 10.77 RCW was not inconsistent with the powers and duties of courts of limited
jurisdiction, the court held that chapter 10.77 RCW applied to courts of limited
jurisdiction through RCW 3.66.010, despite the absence of language in RCW 3.66.010
explicitly naming that power. Wicklund, 96 Wn.2d at 803-04.
Although the authority to impose restitution is statutory and not an inherent power
of courts, the reasoning of Wicklund has force. Superior courts possess the power to
impose restitution in misdemeanor cases, the same cases that are heard in municipal
8
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courts. Similar to superior courts, suspending sentences with conditions is consistent
with the powers and duties of courts of limited jurisdiction. As the court said in
Wicklund, "there is no logical reason" to believe the legislature intended to limit the
authority to impose restitution in misdemeanor cases granted in RCW 9.92.060(2) only to
superior courts. !d. at 804; see also Avlonitis, 97 Wn.2d at 137 (suggesting that
"arguably, a municipal court may be entitled ... to suspend sentence[s] in the manner
granted justice courts" in cases involving violations of state criminal statutes).
The dissent contends that the addition of "superior" before "court" demonstrates
the legislature's intent to discriminate between defendants convicted of the same crimes
in superior and municipal courts. Dissent at 7. Respectfully, the dissent misconstrues the
discrimination language from Willey. In Willey, this court stated that the suspension act
contained no terms limiting suspension powers to superior court "nor purporting to
discriminate against the rights and custody of persons" who are convicted of the same
crimes but in different courts. Willey, 168 Wash. at 393-94. While the inclusion of
"superior" could be read as a limiting term, it is separate from whether there is language
demonstrating the legislature's intent to remove restitution authority from municipal
courts, thereby treating the same defendants differently in different courts. In fact, the
accompanying bill report suggests there was no such intention at all, as evidenced by the
lack of any language addressing restitution authority. Instead, the bill report states the
purpose of the amendments was to ensure that DOC could supervise misdemeanants and
gross misdemeanants in superior court, as was historically the case until a budget proviso
9
No. 86148-0
from the 1994 legislative session put this authority into doubt. FINAL B. REP. on
Substitute H.B. 2533, 54th Leg., Reg. Sess. (Wash. 1996). Nothing suggests that the
addition of "superior" was intended to alter the restitution scheme that had been in place
for 7 5 years. The dissent also raises concerns that our interpretation could "sweep in" the
felony restitution power under RCW 9 .94A.505 of the Sentencing Reform Act of 1981
(SRA) or the mandatory restitution provision under RCW 13.40.190 of the Juvenile
Justice Act of 1977. Dissent at 6. However, this fear ignores that municipal courts do
not have concurrent jurisdiction with superior courts in felony cases, nor would the
Juvenile Justice Act of 1977 be applicable to municipal courts because a "court" is
defined as a juvenile court judge or commissioner. RCW 13.40.020. In contrast,
municipal courts do have concurrent jurisdiction with superior courts to hear
misdemeanors. Where the same cases are heard, it is logical that the same restitution
powers should exist. Briggs, 109 Wn. App. at 490.
It is also important to recognize that RCW 9.92.060(2) and RCW 9.95.210(2) do
not contain all that the legislature has said about restitution. For example, RCW 3.66.120
provides that "[a]ll court-ordered restitution obligations that are ordered as a result of a
conviction for a criminal offense in a court of limited jurisdiction may be enforced in the
same manner as a judgment in a civil action by the party ... to whom the legal financial
obligation is owed." Similarly, RCW 3.66.130 refers to "any court-ordered restitution
obligation entered pursuant to [Title 3 RCW]"; however, the only statute under Title 3
that could authorize restitution is RCW 3.66.010, which authorizes necessary powers
10
No. 86148-0
possessed by courts of record to district court. See RCW 3.66.120, .130 (found within
district court's Title 3 RCW provisions). If courts of limited jurisdiction, including
municipal courts, lack authority to impose restitution then these statutes have no purpose.
The enactment date ofRCW 3.66.120 and RCW 3.66.130 also supports the
conclusion that the legislature intended that courts of limited jurisdiction have authority
to impose restitution. Both RCW 3.66.120 and RCW 3.66.130 were enacted after the
1996 amendments to RCW 9.92.060(2) and RCW 9.95.210(2), suggesting that the
legislature did not intend to limit the authority to impose restitution to only superior
courts by its act of removing "superior" from RCW 9.92.060(2) and RCW 9.95.210(2).
Additionally, the bill report for RCW 3.66.120 and RCW 3.66.130 recognized that "a
court of limited jurisdiction may order that the offender pay restitution to the victim."
FINAL B. REP. ON SUBSTITUTE H.B. 1117, 57th Leg., Reg. Sess. (Wash. 2001). There
would be no reason for the legislature to enact these statutes if it intended to limit the
authority of courts of limited jurisdiction when it amended RCW 9 .92.060(2) and RCW
9.95.020.
The city also argues that restitution may be implied under the grant of authority to
fix the terms of a deferral or suspension of sentence under RCW 3 5.20.25 5. RCW
3 5.20.255( 1) states:
Judges of the municipal court, in their discretion, shall have the power in all
criminal proceedings within their jurisdiction including violations of city
ordinances, to defer imposition of any sentence, suspend all or part of any
sentence including installment payment of fines, fix the terms of any such
deferral or suspension, and provide for such probation as in their opinion is
reasonable and necessary under the circumstances.
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Because there is no language in either RCW 9.92.060(2) or RCW 9.95.210(2) prohibiting
courts of limited jurisdiction from imposing restitution, the city argues that it can be
implied under RCW 35.20.255, citing City of Seattle v. Sisley, 164 Wn. App. 261, 265-
66, 263 P.3d 610 (2011) ("When a statute lists the things upon which it operates, we
presume the legislature intended the omissions.").
Fuller disagrees, arguing that RCW 35.20.255 fails to provide separate
authorization for restitution and suspension of a sentence, as is found in RCW
9.92.060(1) and RCW 9.92.060(2). In support of his argument, Fuller relies on State ex
rel. Woodhouse v. Dare, 69 Wn.2d 64, 68-9, 416 P.2d 670 (1966), where this court
suggested that RCW 9.92.060 does not necessarily grant all sentencing powers to limited
jurisdiction courts. The court stated that while justice of the peace courts have authority
to suspend a sentence under RCW 9.92.060, this provision does not necessarily grant the
court the power to defer imposition of a sentence once guilt has been established. Dare,
69 Wn.2d at 69. We said that these powers must come expressly from the legislature and
that the justice of the peace had apparently acted under RCW 3.50.320, which the court
read as pertaining only to municipal court sentence deferrals. !d.
Dare is unhelpful. First, the question of whether the district court had authority to
defer sentences was not argued. Moreover, this court assumed without deciding that the
district judge did have authority to defer sentencing under RCW 3.50.320. Finally,
because the district judge relied on RCW 3.50.320, the Dare court did not discuss
12
No. 86148-0
whether the district judge had authority to defer sentences through operation of RCW
3.66.010, which was enacted five years earlier.
Even though we disagree with Fuller that RCW 35.20.255 cannot provide
authority for imposing restitution because it does not specifically mention restitution, we
do agree that RCW 35.20.255 alone is not enough to confer restitution authority. Rather,
the authority to make restitution a condition of suspension or deferral has to be read in
conjunction with other statutes, as explained above.
Finally, the parties both acknowledge that RCW 9A.20.030(1) might be another
source of authority for imposing restitution. That statute provides in relevant part:
If a person has gained money or property or caused a victim to lose money
or property through the commission of a crime, upon conviction thereof or
when the offender pleads guilty to a lesser offense or fewer offenses and
agrees with the prosecutor's recommendation that the offender be required
to pay restitution to a victim of an offense or offenses which are not
prosecuted pursuant to a plea agreement, the court, in lieu of imposing the
fine authorized for the offense under RCW 9A.20.020, may order the
defendant to pay an amount, fixed by the court, not to exceed double the
amount of the defendant's gain or victim's loss from the commission of a
crime.
RCW 9A.20.030(1). Unlike RCW 9.92.060(2) and RCW 9.95.210(2), the statute does
not specifically refer to superior courts. Although Fuller has a number of arguments
regarding this provision, which we address below, he does acknowledge that under this
statute a municipal court might have authority to impose restitution in lieu of a fine.
We turn now to Fuller's remaining argument that even if the municipal court has
authority to impose restitution, RCW 9A.20.030(1) bars courts from imposing both a fine
and restitution. That provision references RCW 9A.20.020, which lists authorized
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No. 86148-0
sentences from crimes committed before July 1, 1984. Fuller argues that this is the only
possible place from which statutory authority to impose restitution may derive for
municipal courts but that this statute does not authorize municipal courts to impose
restitution to post-1984 crimes when a fine has been imposed.
Specifically, Fuller argues that RCW 9A.20.030(1) does not presently authorize
municipal courts to impose restitution because RCW 9A.20.030 references only RCW
9A.20.020, and RCW 9A.20.020 applies only to crimes committed before July 1, 1984.
He recognizes that his position was rejected by the Court of Appeals in State v.
Shannahan, 69 Wn. App. 512, 514, 849 P.2d 1239 (1993), which held in a footnote that
RCW 9A.20.030 applied with. equal force to crimes after July 1, 1984 under RCW
6 ' .
9A.20.021. Nevertheless, Fuller argues that Shannahan was incorrectly decided. We
disagree-Shannahan did properly interpret RCW 9A.20.030 to apply to post-July 1,
1984 crimes because RCW 9A.20.021 very closely mirrored RCW 9A.20.020 and
disallowing the application would undermine the sole purpose ofRCW 9A.20.030. In
addition, though, not mentioned by the Court of Appeals, the intent section pertaining to
RCW 9A.20.021 says that "[t]he legislature intends by this act to reorganize criminal
provisions throughout the Revised Code of Washington to clarity and simplifY the
identification and referencing of crimes. It is not intended that this act effectuate any
substantive change to any criminal provision in the Revised Code of Washington."
LAWS OF 2003, ch. 53, § 1.
6
RCW 9A.20.021 differs from RCW 9A.20.020 by using "confinement" instead of
"imprisonment," and differs in some language relating to the amount of fines and confinement.
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No. 86148-0
Next, Fuller suggests that even ifRCW 9A.20.030 is applicable to post-1984
crimes it would prevent restitution in his case because he received a fine as well. He is
incorrect. As the Court of Appeals in State v. Barnett, 36 Wn. App. 560, 562, 675 P.2d
626 (1984), held, RCW 9.92.060(2) is remedial whereas RCW 9A.20.030 is penal, and
"[t]he two statutes serve different function and do not limit each other." !d.
Additionally, because RCW 9A.20.030 applies to all courts, Fuller fails to recognize that
his reading ofRCW 9A.20.030 would create conflict with RCW 9.92.060(2) and RCW
9.95.210(2), which authorize restitution in addition to a fine.
The dissent contends that RCW 9A.20.030 is the only statute granting municipal
courts authority to impose restitution. Dissent at 2. However, RCW 9A.20.030 must be
read in conjunction with RCW 9A.20.020 to understand the import of restitution in lieu
of a fine. Under RCW 9A.20.020, an individual convicted of a felony or misdemeanor
"shall" be punished by imprisonment, a fine, or both. Enactment ofRCW 9A.20.030 was
necessary so that restitution could serve as an exception to the otherwise mandatory
imprisonment and/or fine requirements ofRCW 9A.20.020. Nothing suggests RCW
9A.20.030 was intended to limit an award of restitution to only cases where no fine was
imposed, as discussed in Barnett, or that the purpose ofRCW 9A.20.030 was to grant
municipal courts restitution authority. Barnett, 36 Wn. App. at 562.
We are also mindful of public policy concerns. Restitution serves as an important
rehabilitative tool and a method for compensating victims of crimes. State v. Gray, 174
Wn.2d 920, 929, 280 P.3d 1110 (2012). Fuller asserts that public policy alone cannot
15
No. 86148-0
confer restitution authority, relying on case law that agrees restitution must conform to
statutory language despite a broad rehabilitative purpose. State v. Mark, 36 Wn. App.
428, 433, 675 P.2d 1250 (1984). However, the importance of restitution may be a
consideration where there is no statutory limitation on its imposition. As an example, the
Court of Appeals in Shannahan, 69 Wn. App. at 518, noted that "a strong public policy to
provide restitution whenever possible," as evidenced by language within the SRA. While
recognizing the SRA does not apply to misdemeanors, the court stated that "[i]n the
absence of a clearly expressed legislative intent to prohibit restitution for negligent
driving convictions, we decline to carve out an exception to the otherwise general
application of restitution to criminal offenses." !d. Similarly, no statute prohibits courts
of limited jurisdiction from imposing restitution, and we decline to read such a
prohibition into the statutes.
Considering the language ofRCW 9.92.060(2) and RCW 9.95.210(2), related
statutes, and the history of suspended sentencing statutes, we hold the legislature did not
intend to divest municipal courts of authority to order restitution when imposing
suspended sentences.
CONCLUSION
We hold that the 1996 amendments to RCW 9.92.060(2) and RCW 9.95.210(2)
did not divest Seattle Municipal Court of its authority to impose restitution.
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WE CONCUR:
17
City of Seattle v. Fuller (Donald E.)
No. 86148-0
WIGGINS, J. (dissenting)-Washington courts have no inherent power to
impose restitution obligations in criminal cases but may do so only when the
legislature has specifically authorized restitution by statute. The legislature has
created several types of restitution, each governed by its own statute. It necessarily
follows that a court can only impose the specific type of restitution authorized by the
applicable statute. The majority today ignores this inescapable conclusion and
grants the Seattle Municipal Court (SMC) the power to impose restitution in addition
to a fine, a power expressly reserved to the superior court. The majority grants the
SMC this power despite the clear statutory language, substituting the majority's own
hunch that the legislature did not mean what it said. Because this court has no
power to rewrite statutes, I dissent.
ANALYSIS
Of the various species of restitution in Washington, two are at issue here.
First, there is restitution under RCW 9A.20.030, which may amount to double the
1
actual amount of enrichment, but may only be awarded "in lieu" of a fine:
1
The majority argues that RCW 9A.20.030 does not limit restitution to cases where no fine
is imposed. Majority at 15. This is a puzzling reading of the statutory language "in lieu of." If
a court imposes both restitution and a fine, the restitution is not awarded "in lieu of" the fine.
No. 86148-0, Wiggins, J., dissenting
If a person has gained money or property or caused a victim to lose
money or property through the commission of a crime ... , the court, in
lieu of imposing the fine authorized for the offense under
RCW 9A.20.020, may order the defendant to pay an amount, fixed by
the court, not to exceed double the amount of the defendant's gain or
victim's loss from the commission of a crime. Such amount may be
used to provide restitution to the victim at the order of the court.
/d. at (1 ). Second, there is restitution under RCW 9.92.060 and 9.95.21 0, which has
no such doubling provision but may be awarded in addition to a fine:
As a condition to suspension of sentence, the superior court shall
require the payment of the penalty assessment required by RCW
7.68.035. In addition, the superior court may require the convicted
person to make such monetary payments, on such terms as the
superior court deems appropriate under the circumstances, as are
necessary ... to make restitution to any person or persons who may
have suffered loss or damage by reason of the commission of the crime
in question ....
RC\N 9.92.060(2); see a/so RCW 9.95.21 0(2). These forms of restitution operate
differently, arise from different chapters of the RCW, and-by their own terms-apply
to different courts. The majority fails to recognize these differences and holds that
the legislature has authorized the municipal court to impose restitution under both
statutory schemes. To the contrary, imposition of restitution under RCW 9.92.060
and 9.95.210 is reserved for the superior court, as I explain below. The municipal
court has authority to impose restitution only under RCW 9A.20.030.
I. RCW 9.92.060 and 9.95.210 authorize only the superior court, not courts of
limited jurisdiction, to order restitution
When RCW 9.92.060 was first enacted, it applied to the "superior court." LAWS
OF 1905, ch. 24, § 1. Four years later, the legislature deleted the word "superior"
A court that wishes to impose both restitution and a fine cannot rely on RCW 9A.20.030 for
its authority to impose restitution. Rather, it must look to RCW 9.92.060(2) and 9.95.21 0(2).
2
No. 86148-0, Wiggins, J., dissenting
before "court." LAWS OF 1909, ch. 249, § 28. This court recognized the new language
to mean that the statute applied to all courts. State v. Wi/ley, 168 Wash. 340, 343, 12
P.2d 393 (1932). Similarly, when it was first enacted, RCW 9.95.210 referred to
simply "the court." REM. REV. STAT. § 10249-5b. In 1996, the legislature reinserted
the word "superior" before "court" in RCW 9.92.060 and added the word "superior"
before "court" in RCW.9.95.21 0. 2 LAWS OF 1996, ch. 298, §§ 3, 5.
2
Presently, RCW 9.92.060 provides in part:
(2) As a condition to suspension of sentence, the superior court shall
require the payment of the penalty assessment required by RCW 7.68.035. In
addition, the superior court may require the convicted person to make such
monetary payments, on such terms as the superior court deems appropriate
under the circumstances, as are necessary: (a) To comply with any order of
the court for the payment of family support; (b) to make restitution to any
person or persons who may have suffered loss or damage by reason of the
commission of the crime in question or when the offender pleads guilty to a
lesser offense or fewer offenses and agrees with the prosecutor's
recommendation that the offender be required to pay restitution to a victim of
an offense or offenses .which are not prosecuted pursuant to a plea
agreement; (c) to pay any fine imposed and not suspended and the court or
other costs incurred in the prosecution of the case, including reimbursement
of the state for costs of extradition if return to this state by extradition was
required; and (d) to contribute to a county or interlocal drug fund.
(Emphasis added.)
RCW 9.95.210 provides in part:
(2) In the order granting probation and as a condition thereof, the
superior court may in its discretion imprison the defendant in the county jail
for a period not exceeding one year and may fine the defendant any sum not
exceeding the statutory limit for the offense committed, and court costs. As a
condition of probation, the superior court shall require the payment of the
penalty assessment required by RCW 7.68.035. The superior court may also
require the defendant to make such monetary payments, on such terms as it
deems appropriate under the circumstances, as are necessary: (a) To
comply with any order of the court for the payment of family support; (b) to
make restitution to any person or persons who may have suffered loss or
damage by reason of the commission of the crime in question or when the
offender pleads guilty to a lesser offense or fewer offenses and agrees with
the prosecutor's recommendation that the offender be required to pay
3
No. 86148-0, Wiggins, J., dissenting
This court has held that "'where a law is amended and a material change is
made in the wording, it is presumed that the legislature intended a change in the
law."' Guillen v. Pierce County, 144 Wn.2d 696, 723, 31 P.3d 628 (2001) (quoting
Home lndem. Co. v. McClellan Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969),
reversed in part on other grounds, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610(2003)). Similarly, when we interpret a statute, we must give meaning to all the
language used, '"with no portion rendered meaningless or superfluous."' G-P
Gypsum Corp. v. Dep't of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (201 0)
(internal quotation marks omitted) (quoting State v. J.P, 149 Wn.2d 444, 450, 69
P.3d 318 (2003)). Taken together, these well-established maxims mean that we must
restitution to a victim of an offense or offenses which are not prosecuted
pursuant to a plea agreement; (c) to pay such fine as may be imposed and
court costs, including reimbursement of the state for costs of extradition if
return to this state by extradition was required; (d) following consideration of
the financial condition of the person subject to possible electronic monitoring,
to pay for the costs of electronic monitoring if that monitoring was required
by the court as a condition. of release from custody or as a condition of
probation; (e) to contribute to a county or interlocal drug fund; and (f) to
make restitution to a public agency for the costs of an emergency response
· under RCW 38.52.430, and may require bonds for the faithful observance of
any and all conditions imposed in the probation.
(3) The superior court shall order restitution in all cases where the
victim is entitled to benefits under the crime victims' compensation act,
chapter 7.68 RCW. If the superior court does not order restitution and the
victim of the crime has been determined to be entitled to benefits under the
crime victims' compensation act, the department of labor and industries, as
administrator of the crime victims' compensation program, may petition the
superior court within one year of imposition of the sentence for entry of a
restitution order. Upon receipt of a petition from the department of labor and
industries, the superior court shall hold a restitution hearing and shall enter a
restitution order.
(Emphasis added.)
4
No. 86148-0, Wiggins, J., dissenting
give effect to the legislature's insertion of the word "superior" before "court" in RCW
9.92.060 and 9.95.21 0.
The majority does not contest the clear meaning of the language of RCW
9.92.060 and 9.95.210, In fact, the majority admits that "[a] plain reading of RCW
9.92.060(2) and RCW 9.95.210(2) demonstrates that these statutes only address
the authority of superior courts to impose restitution and thus do not themselves
provide such authority to limited jurisdiction courts." Majority at 5-6. I agree, and I
believe the majority's analysis should end there. Instead, the majority goes on to
speculate about the legislature's intent to reach a result that is plainly inconsistent
with the language of the statute. As I discuss below, the majority's theories are
unavailing.
II. RCW 9.92.060 and 9.95.210 do not "generally confer[]" the power to impose
restitution.
RCW 35.20.01 0(1) provides that the municipal court shall exercise those
powers granted to it under chapter 35.20 RCW, "together with such powers and
jurisdiction as is generally conferred in this state either by common law or statute."
Similarly, RCW 35.20.250 establishes "concurrent jurisdiction with the superior court
and district court ... " on the part of the municipal court. The majority does not assert
that the power of restitution exists at common law, and such a position is untenable.
As this court has consistently recognized, "[t]he authority to impose restitution is not
an inherent power of the court, but is derived from statutes." State v. Davison! 116
Wn.2d 917, 919, 809 P.2d 1374 (1991 ).
5
No. 86148-0, Wiggins, J., dissenting
The issue then becomes whether there is any statute under which restitution
is "generally conferred in this state" within the meaning of the concurrency statutes
for the SMC, RCW 35.20.01 0, or RCW 35.20.250. The majority concludes that
restitution is "'generally conferred in this state'" (quoting RCW 35.20.01 0(1 )) by
RCW 9.92.060 and 9.95.210. Majority at 7. This conclusion was probably correct
before 1996, when the legislature amended the statute by changing the authority to
grant restitution from "the court" to "the superior court"; a generic reference to "the
court" does seem to be a power "generally conferred in this state." But after 1996,
the authority to grant restitution under these two statutes is limited to "the superior
court," which is not an authority "generally conferred"; it is an authority specifically
conferred upon one level of court, not on other levels of court. Indeed, these two
statutes repeatedly grant powers to "the superior court," not to any other court. RCW
9.92.060(2) (referring to "the superior court" in each of the three sentences of the
section); RCW 9.95.210(2) (same). Nothing in the concurrency statutes suggests
that these sections are meant to vest the municipal court with any special
substantive power, but only those powers that the legislature generally granted to
the courts.
If the "generally conferred" language of RCW 35.20.010 could sweep in the
superior court's power to impose restitution plus a fine, then why could it not sweep
in the felony restitution power of the Sentencing Reform Act of 1981, RCW
9.94A.505, or the mandatory restitution provision of the Juvenile Justice Act of 1977,
6
No. 86148-0, Wiggins, J., dissenting
RCW 13.40.190?3 A "generally conferred" power, by definition, cannot refer to any
power wielded by any court. It can only mean a power wielded by most or all other
courts. This means that the municipal court inherits· only those powers granted to
"the court" without a qualifier (such as RCW 9A.20.030 restitution, as I explain
below).
The majority argues that the restitution power of RCW 9.92.060 and 9.95.210
is "generally conferred" because "there is no language in RCW 9.92.060 and RCW
9.95.210 suggesting the legislature intended to discriminate between defendants
convicted of the same crimes in superior courts and municipal courts." Majority at 7.
Similarly, the majority argues that "[n]othing suggests that the addition of 'superior'
was intended to alter the restitution scheme that had been in place for 75 years." /d.
at 9-10. With respect, the majority asks the wrong question when it looks for
language stating that the municipal court cannot impose restitution in addition to a
fine. Because restitution is available only through statute, the only relevant question
is whether the statute states that the municipal court can impose restitution in
addition to a fine. It does not, as the majority admits. /d. at 5-6.
Of course there is such language-when the legislature amended these two
statutes by changing "the court" to "the superior court," the legislature clearly inserted
language discriminating between defendants convicted in superior court and those
convicted in municipal court.
In r~sponse, the majority argues that the present case is different because municipal
3
courts have concurrent jurisdiction with superior courts; that is, they hear the same cases
and thus they should have the same power to award restitution. But the majority still cannot
produce a specific statute that provides for its desired result. The majority explains why its
result might make sense, but not why its result is permitted by statute.
7
No. 86148-0, Wiggins, J., dissenting
In support of its theory that the superior court's restitution power can be inferred
into the purview of the municipal court, the majority points to State v. Wicklund, 96
Wn.2d 798, 638 P.2d 1241 (1982). In that case, we held that district courts had the
power to determine competency, despite the absence of an explicit statutory grant of
that authority. RCW 3.66.01 0(1) provides that "where no special provision is
otherwise made by law, [the district court] shall be vested with all the necessary
powers which are possessed by courts of record in this state .... " We held that
determining competency was just such a necessary power, noting that before the
legislature ever involved itself with competency determinations, the courts had been
relying on inherent judicial powers to determine competency. Wicklund, 96 Wn.2d at
801. Because determining competency is a necessary power of the courts, we held,
a court of limited jurisdiction should be able to determine competency just as a court
of general jurisdiction can. /d. at 804.
Unlike determining competency, imposing restitution is not a necessary power
of criminal courts. Rather, it derives entirely from legislative enactment. Davison, 116
Wn.2d at 920. And even if imposing restitution in criminal cases were an inherent
power of all courts, the specific brand of restitution described by RCW 9.92.060 and
9.95.21 0-that is, imposing restitution in addition to a fine-is not.
Ill. RCW 9A.20.030 "generally confer[s]" the power to impose restitution upon
courts, but not the type of res.titution awarded here
Many of the majority's arguments concern the ability of courts to grant
restitution in general. These arguments miss the mark because I do not argue that
municipal courts cannot grant any sort of restitution-only that restitution in addition
8
No. 86148-0, Wiggins, J., di'ssenting
to a fine is a power specifically reserved to the superior court. I agree with the
majority that restitution in lieu of a fine is permitted by statute.
RCW 9A.20.030 allows "the court" to order restitution "in lieu of" a fine. The
majority decides without analysis that this language means the scope of RCW
9A.20.030 covers courts of limited jurisdiCtion, and I agree. In Willey, we read the
absence of limiting qualifiers on the term "court," or of any terms that purport to
discriminate between different court systems, to mean that "the court" means any
court. 168 Wash. at 343. Similarly, the unqualified language "the court" in RCW
9A.20.030 is properly read to mean that the statute creates a general power of
courts to impose restitution in lieu of a fine. I would also adopt the majority's reading
of State v. Shannahan, 69 Wn. App. 512, 514 n.1, 849 P.2d 1239 (1993), which
makes RCW 9A.20.030 applicable to crimes committed at any time.
This reading of RCW 9A.20.030 defeats the majority's artificial dilemma
concerning the collections statutes, RCW 3.66.120 and .130. These statutes provide
for court-enforced collection and a judgment lien on restitution ordered by a court of
limited jurisdiction. The majority reasons that "[i]f courts of limited jurisdiction,
including the municipal court, lack authority to impose restitution then these statutes
have no purpose." Majority at 10-11. But courts of limited jurisdiction do not lack
authority to impose restitution-.they lack the authority to impose restitution in
addition to a fine. RCW 3.66.120 and .130 are not probative as to the applicability of
RCW 9.92.060 and 9.95.210 to municipal courts, because the collections statutes do
not specifically. cross-reference any particular type of restitution. The majority
indicates no reason that the collections statutes-or the "generally conferred"
g.
No. 86148-0, Wiggins, J., dissenting
language of RCW 35.20.01 0, for that matter-apply to anything more than the
general restitution power enjoyed by all courts under RCW 9A.20.030.
IV. The majority's policy arguments cannot override the plain language of the
statute
The majority points to various policy justifications in favor of court-ordered
restitution. Whatever the force of these policy considerations, they cannot stand in
the face of the statute's plain language limiting restitution in addition to a fine to the
purview of the superior court. This court does not stand in the position of the
legislature and must apply the plain language of the statute instead of rewriting it as
the majority believes it should have been. We have consistently held that this court
"may not add language to a clear statute, even if it believes the Legislature intended
something else but failed to express it adequately." State v. Chester, 133 Wn.2d 15,
21, 940 P.2d 1374 (1997); see also State v. Cooper, 156 Wn.2d 475, 480, 128 P.2d
1234 (2006); Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).
In any event, the policy concerns raised by respondent and by amicus
Washington Association of Prosecuting Attorneys are unfounded. RCW 9A.20.030
permits the municipal courts-like all courts-to impose restitution, or even double
the amount. To hold that RCW 9.92.060 and 9.95.210 do not reach the municipal
court, as I would do today, would not invalidate the many restitution orders that
already exist, nor jeopardize the SMC's customary practice of imposing restitution.
All it would do is compel courts of limited jurisdiction to choose one or the other-a
fine or restitution. That is the scheme that the legislature plainly set out, and we are
not at liberty to rewrite the statutes even if we think it would be wise to do so.
10
No. 86148-0
For these reasons, I respectfully dissent.
l.l