Ann Conway appeals a superior court
commissioner's order denying her motion to remit
mandatory legal financial obligations (LFOs) and her motion
to reconsider.She argues that (1) the superior court has
broad authority to remit mandatory LFOs under three statutes
and its inherent authority, (2) we should extend the holding
in Fuller v. Oregon to mandatory LFOs, (3) the Clark
County Court Clerk's office took enforcement action
against her without conducting an inquiry into her ability to
pay under State v. Blank,  (4) the superior court's
findings of fact 1, 5, and 6 are clearly erroneous, and (5)
the superior court's failure to remit the mandatory LFOs
violates her equal protection and substantive due process
rights. Conway requests that we vacate the superior
court's orders and remand for entry of an order striking
the victim penalty assessment fee and the criminal filing
fee. We reject all of her arguments and affirm.
March 2007, Conway pleaded guilty in the Clark County
Superior Court to one count of maintaining a dwelling for
controlled substances. The superior court sentenced her and
ordered her to pay various LFOs, including two mandatory
LFOs: a $500 victim penalty assessment fee (VPA) under former
RCW 7.68.035 (2000) and a $200 criminal filing fee under
former RCW 9.94A.505 (2002).
who was receiving Supplemental Security Income (SSI) due to a
disability, made some, but not all, of the ordered payments
toward the judgment and sentence. The Clark County Superior
Court's Collections Unit periodically sent Conway notices
to appear for a payment review and either make a payment or
explain why she could not do so. These notices stated that if
she failed to pay or appear, she could be placed in custody.
At one point, the clerk's office e-mailed Conway,
explaining that she would be required to provide an annual
letter to verify her SSI status.
2016, Conway filed a motion to remit all LFOs except the VPA
fee and the criminal filing fee based on her indigency and
SSI status. The superior court conducted a hearing and
entered written findings of fact and conclusions of law. The
court found that Conway was indigent and had been on SSI for
order, the superior court remitted the balance of interest
owing, the criminal fine, the court appointed attorney fee,
the deoxyribonucleic acid (DNA) fee (which was discretionary
at the time), the crime lab fee, the drug fund fee, and the
balance of collection fees. As to the two remaining mandatory
LFOs, the VPA fee and the criminal filing fee, the court
ruled that Conway owed a balance of $493.55 for the VPA fee
and $197.41 for the criminal filing fee, but it ordered that
"the court cannot require her to pay on the remaining
mandatory LFOs at this time." Clerk's Papers (CP) at
filed a motion to reconsider in December 2016, arguing for
the first time that the imposition of the two mandatory LFOs
violated her equal protection and substantive due process
rights. The superior court denied the motion and entered the
following additional relevant findings:
1. . . . [T]he Clark County Clerk's office did not
unlawfully collect statutorily authorized collection fees and
that the [c]ourt has no authority to direct the [c]ounty
[c]lerk as to application of payments received from Ms.
. . . .
5. . . . [T]his [c]ourt can conceive of circumstances wherein
Ms. Conway may be able to pay the fees and assessments in the
6. . . . The [c]ourt finds that there has never been
enforcement in Ms. Conway's case. Ms. Conway has never
been brought to court on a [m]otion for nonpayment. Sanctions
have never been sought or imposed against her for nonpayment.
The [c]ourt declines to find, as requested by Ms. Conway,
that the State/Clark County Clerk's office was on notice
and therefore required to conduct an inquiry regarding
payment of LFO's when Ms. Conway was brought to court on
probation violations unrelated to LFO's. Again, no
enforcement sanctions were sought against Ms. Conway to
trigger a Blank inquiry.
CP at 399-400.
appeals both orders; a commissioner of this court granted
court has recognized that the effects on an indigent
defendant remain the same whether the LFOs are mandatory or
discretionary. State v. Mathers, 193 Wn.App. 913,
916, 376 P.3d 1163 (2016). "However, until there are
legislative amendments or Supreme Court changes in precedent,
we must recognize these distinctions and adhere to the
principles of stare decisis." Mathers, 193
Wn.App. at 916. The court's authority to impose LFOs is
statutory. Mathers, 193 Wn.App. at 917 (citing RCW
10.01.160(3)). The legislature has authorized the courts to
impose a VPA fee and a criminal filing fee as mandatory LFOs.
fee is authorized under former RCW 7.68.035(1)(a) (2000)
When any person is found guilty in any superior court of
having committed a crime . . . there shall be imposed by
the court upon such convicted person a penalty
assessment. The assessment shall be in addition to any other
penalty or fine imposed by law and shall be five hundred
dollars for each case or cause of action that includes one or
more convictions of a felony or gross misdemeanor and two
hundred fifty dollars for any case or cause of action that
includes convictions of only one or more misdemeanors.
criminal filing fee is authorized under former RCW
36.18.020(2)(h) (2005) which states:
Upon conviction or plea of guilty, upon failure to prosecute
an appeal from a court of limited jurisdiction as provided by
law, or upon affirmance of a conviction by a court of limited
jurisdiction, a defendant in a criminal case shall be
liable for a fee of two hundred dollars.
courts have consistently held that a trial court need not
consider a defendant's past, present, or future ability
to pay when it imposes either the VPA fee or the criminal
filing fee. See State v. Curry, 118 Wn.2d 911,
917-18, 829 P.2d 166 (1992) (VPA fees are mandatory
notwithstanding defendant's ability to pay); see also
State v. Clark, 191 Wn.App. 369, 374, 362 P.3d 309
(2015) (VPA fees and criminal filing fees are mandatory
obligations not subject to a defendant's ability to pay);
State v. Lundy, 176 Wn.App. 96, 102, 308 P.3d 755
(2013); State v. Kuster, 175 Wn.App. 420, 424-25,
306 P.3d 1022 (2013); State v. Thompson, 153 Wn.App.
325, 337, 223 P.3d 1165 (2009); State v. Williams,
65 Wn.App. 456, 460, 828 P.2d 1158, 840 P.2d 902 (1992).
courts consistently treat the [mandatory LFO] statutes as
separate and distinct from the discretionary LFO statute and
the restitution statute." Mathers, 193 Wn.App.
at 919. "Where the legislature has had time to correct a
court's interpretation of a statute and has not done so,
we presume the legislature approves of our
interpretation." Mathers, 193 Wn.App. at 918.
Authority To Remit Mandatory LFOs
Statutory Authority To ...