Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN WOODFORD MORRISON and                       )         No. 66168-0-I
WOODFORD ELECTRIC SERVICES,                      )
INC.,                                            )         DIVISION ONE
                                                 )
                      Appellant,                 )         UNPUBLISHED OPINION
                                                 )
              v.
                                                 )
STATE OF WASHINGTON                              )
DEPARTMENT OF LABOR &
INDUSTRIES,                                      )

                      Respondent.                )         FILED: March 5, 2012

                                                 )

                                                 )
                                                 )

                                                 )

                                                 )

       Appelwick,  J.  --  Morrison appeals the superior court order remanding 

agency action, arguing that RCW 19.28.131's filing fee provision violates the 

due process clause of the state and federal constitutions.  Because his interest 

is solely an economic one, RCW 19.28.131's monetary prerequisite to an appeal 

does not violate his due process rights.  We affirm the reduction                 of the 

administrative filing fee and the reinstatement of the appeal contingent upon 

payment of that fee, and remand to the trial court for the award of the court filing 

fee to Morrison for prevailing below.

                                        FACTS

       In December 2008, the Department of Labor and Industries (Department)  

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issued John Morrison and Woodford Electrical Services Inc. eight citations for 

alleged violations of the electrical law under chapter 19.28 RCW.  The violations 

occurred on two different dates and the citations totaled $4000.  Morrison sent a 

letter to the Department to appeal the citations, but he did not include a $200 

filing fee to appeal     each of the eight  citations, as required under RCW 

19.28.131.  The State of Washington Electrical Board (Board)               rejected his 

appeal, because the $1600 in filing fees was not included.  

       Morrison filed a petition for review with the superior court, arguing that the 

filing fee requirement  denied him due process under the state and federal 

constitution.  The superior court rejected Morrison's constitutional argument and

concluded that there is a rational basis for requiring the fee payment.  It stated,

"The payment by certified check requirement in RCW                19.28.131 does not 

infringe on any licensed electrical contractor's or certified electrical 

administrator's rights under the state or federal Constitutions."   The superior 

court also found that the payment of $1600 to secure an appeal of the eight

citations created a financial hardship for Morrison and Woodford Electrical 

Services.  It waived $1400 of that, requiring Morrison to pay only $200 to appeal 

all eight citations.  The court set aside the Department's denial of Morrison's 

appeal, and remanded        it  to the Board, contingent upon Morrison following 

through with the $200 payment.  It did not award costs or attorney fees.  

       Morrison appeals.

                                    DISCUSSION

   I.  Constitutionality of RCW 19.28.131

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       Morrison argues that the filing fee requirement under RCW 19.28.131 

violates his due process rights under the state and federal constitution.  That 

statute provides for the assessment of penalties in response to violations of the 

electrical contractor license law, and it also addresses the appeal of such

penalties:

       Any penalty is subject to review by an appeal to the board.  The 
       filing of an appeal stays the effect of the penalty until the board 
       makes its decision.  The appeal shall be filed within twenty days 
       after notice of the penalty is given to the assessed party using a 
       method by which the mailing can be tracked or the delivery can be 
       confirmed, sent to the last known address of the assessed party 
       and shall be made by filing a written notice of appeal with the 
       department.  The notice shall be accompanied by a certified check 
       for two hundred dollars, which shall be returned to the assessed 
       party if the decision of the department is not sustained by the 
       board.   If the board sustains the decision of the department, the 
       two hundred dollars shall be applied by the department to the 
       payment of the per diem and expenses of the members of the 
       board incurred in the matter, and any balance remaining after 
       payment of per diem and expenses shall be paid into the electrical 
       license fund.

RCW 19.28.131 (emphasis added).

       A statute is presumed to be constitutional, and the party attacking a 

statute  has  the  heavy    burden of proving its unconstitutionality beyond a 

reasonable doubt.  State v. Shultz, 138 Wn.2d 638, 642, 980 P.2d 1265 (1999).  

A challenge to the constitutionality of a statute is a question of law that we 

review de novo.  City of Bothell v. Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 

(2011).

       Due process is flexible and calls for such procedural protections as the 

particular situation demands.  Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 

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893, 47 L. Ed.2d 18 (1976).  An essential principle of due process is the right to 

notice and a meaningful opportunity to be heard.  Downey v. Pierce County, 165 

Wn. App. 152, 164, 267 P.3d 445 (2011) (citing Cleveland Bd. Of Educ. v. 

Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)).  A 

meaningful opportunity to be heard means "'at a meaningful time and in a 

meaningful manner.'"        Id.  at 165 (quoting  Mathews, 424 U.S. at 333).  

Determining what process is due in a given situation requires consideration of 

(1) the private interest involved, (2) the risk that the current procedures will 

erroneously deprive a party of that interest, and (3) the governmental interest 

involved.  Mathews, 424 U.S. at 334-35.

       Under the first Mathews factor, the private interest implicated here is 

solely an economic, pecuniary one.  There is no liberty interest involved.  Where 

the interest at stake is only a financial one, the right which is threatened is not 

considered "fundamental" in a constitutional sense.  In re Dep. of Grove, 127 

Wn.2d 221, 238, 897 P.2d 1252 (1995).  The United States Supreme Court, in

the Boddie line of cases, has found that monetary prerequisites to court access 

(e.g., filing fees) are permissible unless the right attempted to be vindicated is 

fundamental and the courts provide the only means through which vindication of 

such right may be obtained.  See Boddie v. Connecticut, 401 U.S. 371, 379-80, 

91 S. Ct. 780, 28 L. Ed. 2d 113 (1971); United States v. Kras, 409 U.S. 434, 444-

45, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973); Ortwein v. Schwab, 410 U.S. 656, 

658-59, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973).  Here, the $200 requirement

under RCW 19.28.131 is a filing fee.  If the department's decision is sustained 

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by the board on appeal, the money goes to the per diem and expenses of the 

board related to the matter.  Id.  And, if the decision is reversed, the money is 

returned to the assessed party.  Id.  

       Boddie involved a class of Connecticut welfare recipients attempting to 

bring an action for divorce.  401 U.S. at 372.  They challenged state procedures, 

including payment of certain court fees and costs that restricted their access to 

the courts.   Id.   The Court found these statutorily required filing fees to be 

impermissible and inconsistent with the State's obligation under the due process 

clause of the Fourteenth Amendment.  Id. at 383.  But, two years later, in Kras, 

the Court limited the reach of Boddie, upholding a similar statutorily imposed 

filing fee in bankruptcy matters.  409 U.S. at 444-46.  The                 Kras   Court 

emphasized that, unlike divorce, the discharge of debts was in the area of

"economics and social welfare".  Id. at 446.  Accordingly, the filing fees in Kras

did not impact a "fundamental interest" like those addressed in Boddie.  Id. at 

445.  And, Ortwein involved a state court's refusal to waive a $25 appellate court 

filing fee in an appeal by indigents for review of a denial of welfare benefits.  

Ortwein, 410 U.S. at 658.  The U.S. Supreme Court again distinguished Boddie,

and followed Kras.  Id. at 659.  Recognizing that Boddie applied narrowly to the 

fundamental right of marriage, the Court in Ortwein held  that the state may 

require a fee to obtain review of a denial of welfare benefits.  Id. at 659-660.  

Thus, where there is no fundamental right involved but only a financial one, it is 

permissible to impose a monetary prerequisite to file an appeal.

       In Bowman v. Waldt, 9 Wn. App. 562, 570, 513 P.2d 559 (1973), this 

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court adopted the reasoning and the holdings from the Boddie line of cases.  

The court noted that the majority opinions in Boddie,  Kras, and  Ortwein are 

binding upon us with regard to the due process and equal protection clauses of 

the United States Constitution.  Id. at 569.  And, it also noted that with regards to

due process under the state constitution, the rationale of those same opinions, 

"although not binding upon the state courts, [is] nevertheless accorded great 

weight. . . . Kras and Ortwein refuse to recognize a constitutional right of access 

to the courts if the case is one 'in the area of economics and social welfare.'"  Id.

at 570.  In the present case, as in  Bowman,  Kras, and  Ortwein, the private 

interest at issue is pecuniary and not a fundamental one. Accordingly, we need 

not continue the analysis of the other two Mathews factors.

       In its statement of additional authority, the Department cites to an opinion 

from Division Two of this court, Downey, 165 Wn. App. 152.  Downey involved a 

challenge by a dog owner of Pierce County's dangerous animal declaration 

(DAD) proceedings, including a due process challenge to the County's practice 

of charging a fee to obtain an initial evidentiary review of a DAD.  Id. at 155-56. 

The court held that charging such a fee to obtain review violated due process.  

Id. at 156.  The private interests involved in Downey were much more expansive 

than those involved in Morrison's appeal, including:

       (1) [P]et owners' interests in keeping their pets, which is arguably 
       more than a mere economic interest because pets are not fungible; 
       (2) economic interests in not having to pay additional annual 
       registration and inspection fees or acquire significant liability 
       insurance in order to retain his or her property; and (3) potentially 
       being subject to criminal liability for later violations of [Pierce]
       County's dangerous animal restrictions.

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Id. at 165.  Morrison's interest, by contrast, is solely monetary.  The Downey

opinion expressly acknowledged that "there is no constitutional due process 

right to appeal civil cases involving "only property or financial interests."  Id. at 

167 (quoting Grove, 127 Wn.2d at 240).  

       Morrison's interest was solely a financial one, and a monetary 

prerequisite to an appeal is thus permissible.  We hold that the $200 fees 

imposed on Morrison under RCW 19.28.131 do not violate his due process 

rights.  We affirm.

       Morrison also argues the superior court erred by reducing the $1600 filing 

fee to $200, contending it had no discretion to reduce the bond.            But, as the 

Department points out, the superior court's decision to reduce the fee favored 

Morrison, and the Department did not appeal this result.  Accordingly, Morrison 

is not an aggrieved party for the purposes of this argument, and thus may not 

seek review by this court.  RAP 3.1; see State v. Taylor, 150 Wn.2d 599, 603, 80 

P.3d 605 (2003).  In any event, Washington courts have applied equity to waive 

filing fee amounts, in the interest of justice, where there is financial hardship.  

See, e.g., O'Connor v. Matzdorff, 76 Wn.2d 589, 600, 458 P.2d 154 (1969).  The 

Supreme Court stated, "[C]ourts have found within their powers an inherent 

power to waive the prepayment of court fees, where a suitor or defendant has 

shown that he is impoverished, regardless of statutory authority.  We are also 

convinced that such a power is in harmony with the court's duty to see that 

justice is done in the cases which come before it."  Id.  This power is equally 

compelling with respect to fees for administrative appeals. We hold that the 

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superior court possessed inherent power to reduce the appeal bond amount.

   II. Judicial Filing Fee

       Finally, Morrison argues the superior court erred by failing to award him 

his $200 court filing fee as a recoverable cost below.  He contends he was the 

prevailing party, based on the court's $1400 reduction of the bond, and on its 

order setting aside the Department's denial of the appeal and remanding for 

further proceedings.  The Department concedes this point, based on RCW 

4.84.010, which provides that prevailing parties shall receive their superior court 

filing fees.  Morrison is entitled to receive his $200 filing fee as the prevailing 

party.

       We    affirm  the  reduction    of the administrative filing fee and          the

reinstatement of the appeal contingent upon payment of that fee, and remand to 

the trial court for the award of the court filing fee to Morrison for prevailing below.

WE CONCUR:

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