* Darren Lee Arends, Appellant V. State Of Washington, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
DARREN L. ARENDS,
Appellant,
v.
STATE OF WASHINGTON,
Respondent.
No. 85870-0-I
ORDER GRANTING MOTION FOR
RECONSIDERATION AND MOTION
TO PUBLISH AND WITHDRAWING
OPINION AND SUBSTITUTING
OPINION
Appellant Darren Arends moved for reconsideration of the opinion filed on
March 25, 2024. Respondent State of Washington filed an answer. Additionally,
appellant and respondent jointly moved for publication of the opinion.
The court has determined that appellant’s motion for reconsideration
should be granted and it has reconsidered its prior determination not to publish
the opinion, finding it is of precedential value and should be published.
Now, therefore, it is hereby
ORDERED that the appellant’s motion for reconsideration and the parties
joint motion to publish are granted; and it is further
ORDERED that the unpublished opinion filed on March 25, 2024 is
withdrawn; and it is further
ORDERED that a substitute published opinion be filed.
FOR THE COURT:
Judge
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DARREN L. ARENDS,
Appellant,
v.
STATE OF WASHINGTON,
Respondent.
No. 85870-0-I
DIVISION ONE
PUBLISHED OPINION
SMITH, C.J. — Under former RCW 9.41.040, individuals could petition to
restore their firearm rights in their county of residence or in the court that entered
the relevant prohibition on firearm possession. In early 2023, the legislature
restricted the appropriate venue for firearm restoration petitions to the county that
entered the prohibition on firearm possession.
A month after the new statute took effect, Darren Arends petitioned to
restore his firearm rights in Snohomish County Superior Court, his county of
residence. The superior court denied his petition, citing improper venue. On
appeal, Arends claims that the former firearm restoration statute applies to him
because his right to petition for restoration “vested” before the new statute took
effect. Therefore, he maintains, he can file his petition in his current county of
residence rather than in Davison County, South Dakota, the county that entered
the prohibition on Arends’s right to possess a firearm. Because the legislature
did not intend to create a vested right to petition for firearm restoration, we
disagree and affirm.
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No. 85870-0-I/2
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FACTS
Legislative Background
Before July 2023, former RCW 9.41.040 governed the process of restoring
an individual’s right to possess a firearm. Under that statute, there were two
appropriate venues in which to file a restoration petition: (1) the court of record
that ordered the petitioner’s prohibition on possessing a firearm; or (2) the
superior court in the county in which the petitioner currently resided. Former
RCW 9.41.040(4) (2005).
In early 2023, the legislature amended RCW 9.41.040 and added a new
section to chapter 9.41 RCW. LAWS OF 2023, ch. 295. Under the new section,
RCW 9.41.041, firearm restoration petitions can only be filed in the superior court
of the county that entered a prohibition on possession. LAWS OF 2023, ch. 295,
§ 4(3)(a). In its findings related to the amendments, the legislature noted that its
updates to the laws governing the unlawful possession of firearms and the
restoration of firearm rights aimed to “reduc[e] the risks of lethality and other
harm associated with gun violence, gender-based violence, and other types of
violence.” LAWS OF 2023, ch. 295. The legislature also found that easy access to
firearms is a risk factor that increases the likelihood of individuals engaging in
future violence and presenting further risk to public safety. LAWS OF 2023,
ch. 295, §1(4).
On July 23, 2023, Substitute House Bill 1562 took effect, repealing
former RCW 9.41.040(4) and enacting RCW 9.41.041. LAWS OF 2023, ch. 295.
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No. 85870-0-I/3
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Present Case
In August 2023, Darren Arends petitioned the Snohomish County Superior
Court to restore his firearm rights. His right had been restricted due to his
conviction for grand theft in Davison County, South Dakota. Although Arends
petitioned the court after RCW 9.41.041 took effect, Arends claimed that former
RCW 9.41.040(4) applied to him because he had completed the former statute’s
requirements before the new statute took effect. Arends contended that once he
completed the former statute’s requirements, his right to petition for restoration
“vested,” thereby allowing him to proceed under the former statute.
The State opposed Arends’s petition, arguing that Snohomish County
Superior Court was not the proper venue because the prohibition had not been
entered there. The State also contended that Arends had not yet completed his
sentencing conditions. The court denied Arends’s petition and adopted the
State’s position in full.1
Arends appeals.
ANALYSIS
Vested Right to Petition Under Former RCW 9.41.040
Both parties contend that whether RCW 9.41.041 operates prospectively
or retroactively is determinative of whether a right vested under former
RCW 9.41.040. Arends maintains that because the precipitating event that
triggers application of former RCW 9.41.040 is completion of the statutory
1 In support of its order, the court attached the State’s response to
Arends’s petition rather than explain its reasoning.
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No. 85870-0-I/4
4
requirements, and because he completed the requirements before
RCW 9.41.041 took effect, his right to petition for restoration of his right to
possess a firearm “vested” and his claim under the former statute is preserved.
The State counters that completion of the statutory requirements does not result
in a “vested” right because filing of the restoration petition is the precipitating
event, not completion of the statutory requirements.2 The State therefore
maintains that Arends is subject to the new statute because he filed his petition
after it took effect.
We disagree with both parties. The relevant inquiry here is not whether
the new statute operates prospectively or retroactively or what constitutes a
precipitating event, but, rather, whether the subject matter and language of
former RCW 9.41.040 indicate that Arends possessed a “vested right” to petition
for restoration once he met the statutory requirements for restoration of his
purported right to possess a firearm under the former statute. Because the
legislature intended firearm restoration procedures to further public safety, we
conclude that Arends’s right to petition for restoration did not “vest” when he
completed the statutory requirements of former RCW 9.41.040.
The term “vested right” is not easily defined, but “has been commonly held
to connote ‘an immediate, fixed right of present or future enjoyment.’ ” Adams v.
Ernst, 1 Wn.2d 254, 264-65, 95 P.2d 799 (1939) (quoting Pearsall v. Great N.
2 Our Supreme Court previously determined, in dicta, that the precipitating
event for eligibility of restoration is when the statutory requirements are met, not
when the petition is filed. State v. Dennis, 191 Wn.2d 169, 177, 421 P.3d 944
(2018).
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No. 85870-0-I/5
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Ry. Co., 161 U.S. 646, 673, 16 S. Ct. 705, 40 L. Ed. 838 (1896)). A “vested right,
entitled to protection from legislation, must be something more than a mere
expectation based upon an anticipated continuance of the existing law; it must
have become a title, legal or equitable, to the present or future enjoyment of
property, a demand, or a legal exemption from a demand by another.” Godfrey
v. State, 84 Wn.2d 959, 963, 530 P.2d 630 (1975) (emphasis omitted). “[A]
vested right must be definite, as opposed to an assumed expectation that one
will be able to exercise a certain privilege in the future.” Wash. State Ass’n of
Counties v. State, 199 Wn.2d 1, 19, 502 P.3d 825 (2022). “ ‘[A] mere
expectation based upon an anticipated continuance of the existing law’ is
insufficient to vest a legal right.” State v. Shultz, 138 Wn.2d 638, 646, 980 P.2d
1265 (1999) (emphasis omitted) (quoting State v. Hennings, 129 Wn.2d 512,
528, 919 P.2d 580 (1996)).
A right may vest in a number of ways, such as by final judgment or
contract. Wash. State Ass’n of Counties, 199 Wn.2d at 19; see, e.g., Bailey v.
Sch. Dist. No. 49, 108 Wash. 612, 614, 185 P. 810 (1919) (final judgment); Scott
Paper Co. v. City of Anacortes, 90 Wn.2d 19, 32, 578 P.2d 1292 (1978)
(contracts). Rights may also vest upon completion of statutory conditions in
certain limited circumstances. State v. T.K., 139 Wn.2d 320, 334, 987 P.2d 63
(1999) (T.K. II).3
3 Because we cite to both the Court of Appeals’ and Washington State
Supreme Court’s decision in State v. T.K., we refer to the Supreme Court’s
decision as T.K. II and the Court of Appeals’ decision as T.K. I.
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No. 85870-0-I/6
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The subject matter of the statute and the statutory language guide our
analysis of whether completion of the statutory conditions results in a vested
right. See T.K. II, 139 Wn.2d at 331-32, 335. This inquiry implicates statutory
interpretation, a question of law that we review de novo. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). When interpreting a
statute, our purpose is to determine and give effect to the legislature’s intent, and
we begin with the plain language of the statute. Campbell & Gwinn, 146 Wn.2d
at 9-10. “We derive the legislative intent of a statute solely from the plain
language by considering the text of the provision in question, the context of the
statute in which the provision is found, related provisions, and the statutory
scheme as a whole.” State v. Dennis, 191 Wn.2d 169, 172-73, 421 P.3d 944
(2018). When interpreting a criminal statute, “we give it a literal and strict
interpretation.” State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003).
1. Statutory Interpretation
The statute at issue, former RCW 9.41.040, designates the requirements
that an individual must meet before petitioning the court:
An individual may petition a court of record to have his or her right
to possess a firearm restored . . .
[i]f the conviction or finding of not guilty by reason of insanity was
for a felony offense, after five or more consecutive years in the
community without being convicted or found not guilty by reason of
insanity or currently charged with any felony, gross misdemeanor,
or misdemeanor crimes, if the individual has no prior felony
convictions that prohibit the possession of a firearm counted as part
of the offender score under RCW 9.94A.525.
Former RCW 9.41.040(4)(b), (a)(ii)(A).
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No. 85870-0-I/7
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After these requirements are met, an individual “may” petition the court for
relief. Former RCW 9.41.040(4)(b). Once the superior court determines that the
statute’s enumerated requirements are met, the court’s role is purely ministerial;
it must grant the petition. State v. Swanson, 116 Wn. App. 67, 78, 65 P.3d 343
(2003). However, the process of restoration is one of legislative grace; there is
no Second Amendment right to firearm right restoration. See, e.g., ch. 9.41
RCW (restoration of firearm rights exclusively governed by statute); see also
District of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d
637 (2008) (“Like most rights, the right secured by the Second Amendment is not
unlimited.”).
Here, the subject matter of the statute and the legislature’s intent are
determinative of whether a vested right exists upon completion of the statutory
requirements. The statute creates a court-supervised procedure for firearm right
restoration to further public safety by reducing gun violence. At the heart of the
statute is public safety, clearly evidenced by the legislature’s repeated amending
of the statute to add more stringent requirements for restoration. See, e.g., H.B.
REP. ON H.B. 3095, 60th Leg., Reg. Sess. (Wash. 2008) (additional notice
required when person who was prohibited from possessing firearm due to
involuntary commitment has right to possess restored); FINAL B. REP. ON
H.B. 1498, 61st Leg., Reg. Sess. (Wash. 2009) (imposing burden of proof for
persons who have been involuntarily committed); FINAL B. REP. ON H.B. 1455,
62nd Leg., Reg. Sess. (Wash. 2011) (restricting venue where petition to restore
rights may be filed); FINAL B. REP. ON S.B. 5205, 66th Leg., Reg. Sess. (Wash.
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No. 85870-0-I/8
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2019) (persons found incompetent to stand trial and who have history of violent
acts must prove each restoration requirement by preponderance of evidence);
FINAL B. REP. ON S.H.B. 1562, 68th Leg., Reg. Sess. (Wash. 2023) (restricting
venue where petition to restore rights may be filed).
The legislature’s actions also evidence an intent to protect the public. For
example, in the wake of our Supreme Court’s Dennis decision, which interpreted
the statutory requirement that a petitioner be crime-free for five years before
petitioning for firearm restoration to mean any crime-free period following felony
conviction, the legislature amended the firearm restoration statute to clarify that
the five-year period must immediately precede filing of a restoration petition.
S.H.B. 1562, 68th Reg. Sess. (Wash. 2023) (“The legislature also finds it would
be helpful to refine statutory language that was at issue in the Washington state
supreme court’s decision in State v. Dennis, 191 Wn.2d 169 (2018).”);
RCW 9.41.041(2)(a)(i).
Moreover, when the legislature most recently updated the restoration
procedures, it noted that the stricter venue provisions were intended to “reduc[e]
the risks of lethality and other harm associated with gun violence, gender-based
violence, and other types of violence.” LAWS OF 2023, ch. 295. The legislature
also found that easy access to firearms presents a risk to public safety. LAWS OF
2023, ch. 295, §1(4). To conclude that satisfaction of the statutory requirements
results in an absolute right to petition for restoration of one’s firearm rights runs
contrary to the legislature’s intent. The legislature has repeatedly evidenced that
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No. 85870-0-I/9
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gun violence is an important issue of public safety and has taken steps to make
restoration of firearm rights increasingly difficult.
We conclude that Arends had an expectation that he could petition the
court to restore his firearm rights once he complied with the statute, but not an
absolute, vested right regarding restoration of those rights. At any point before
he petitioned to restore his firearm rights, the legislature could have amended the
law to prevent him from doing so. Settled law dictates that the expectation of
being able to exercise a certain privilege in the future is insufficient to vest a legal
right.
2. State v. T.K
Still, Arends contends that T.K. II is dispositive of whether completion of
statutory requirements results in a vested right. We disagree.
In T.K. II, the defendant pleaded guilty to first degree child molestation.
139 Wn.2d at 323. After T.K. completed the requirements of the disposition
order, he petitioned the juvenile court to vacate his duty to register under the sex
offender registration statute. State v. T.K., 94 Wn. App. 286, 288-89, 971 P.2d
121 (1999) (T.K. I).4 The court found that T.K. had been “fully rehabilitated” and
entered an order ending his registration requirement. T.K. I, 94 Wn. App. at 289.
At the time the court entered its order, T.K. was not eligible to request vacation or
sealing of his conviction records under RCW 13.50.050 because two years had
not yet passed from the date he was discharged from supervision. T.K. I, 94 Wn.
4 The facts of T.K. II are drawn from the Court of Appeals decision
because it includes more detail.
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No. 85870-0-I/10
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App. at 289. Before T.K. could petition to have his juvenile records sealed, the
legislature changed the statutory requirements for sealing, increasing the
requisite waiting period. T.K. II, 139 Wn.2d at 323-24. After the statute was
amended, T.K. moved to expunge his juvenile record. T.K. I, 94 Wn. App. at
290. The juvenile court denied the motion, concluding that the updated statute
applied. T.K. I, 94 Wn. App. at 290.
On appeal, this court reversed, determining that T.K.’s right to have his
record expunged under the former statute “matured”5 when he satisfied the
conditions of expungement. T.K. I, 94 Wn. App. at 291. Our Supreme Court
later affirmed, explaining that T.K.’s “right to sealing became absolute [i.e.,
vested] upon completion of the statutory conditions” after the two-year waiting
period had expired. T.K. II, 139 Wn.2d at 334. The court compared the waiting
period to a statute of limitations, noting that “ ‘[u]ntil the statute has run it is a
mere regulation of the remedy . . . subject to legislative control,’ ” but afterwards
it is “ ‘a defense, not of grace, but of right . . . absolute and vested, . . . not to be
taken away by legislative enactment.’ ” T.K. II, 139 Wn.2d at 332 (some
alterations in original) (quoting State v. Hodgson, 108 Wn.2d 662, 668, 740 P.2d
848 (1987)). The court also considered the subject matter addressed by the
statute and the mandatory language of the statute. Because T.K.’s right vested
before the change in the law, our Supreme Court reasoned that the new law
5 We briefly note that “matured” and “vested” are used interchangeably in
vested rights analysis and possess substantially similar meanings. Compare
T.K. I, 94 Wn. App. at 290 (referring to a right as “matured”) with T.K. II, 139
Wn.2d at 332 (referring to a right as “vested”).
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No. 85870-0-I/11
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could not retroactively require T.K. to meet stricter conditions for sealing his
juvenile records. T.K. II, 139 Wn.2d at 334-35.
But T.K. does not stand for the proposition that completion of statutory
requirements always resulted in a vested right. The Supreme Court in T.K. II
considered the subject matter of the statute and the language of the statute when
it concluded that T.K. possessed a vested right to have their convictions sealed.
139 Wn.2d at 331-32. Furthermore, since T.K. II, courts have not extended
vested rights analysis outside the arena of sealing or vacation. Compare State v.
D.S., 128 Wn. App. 569, 115 P.3d 1047 (2005) (vested right to have juvenile
records sealed) and In re Pers. Restraint of Carrier, 173 Wn.2d 791, 272 P.3d
209 (2012) (vested right in vacated status of former conviction) with State v.
Webb, 112 Wn. App. 618, 50 P.3d 654 (2002) (no vested right under former
offender scoring statute); State v. Sell, 110 Wn. App. 741, 43 P.3d 1246 (2002)
(no vested right to deferred DUI prosecution); State v. Varga, 151 Wn.2d 179, 86
P.3d 139 (2004) (no vested right in “washed out” status of prior convictions); In re
Pers. Restraint of Martin, 129 Wn. App. 135, 118 P.3d 387 (2005) (no vested
right to delay paying LFOs until after release); In re Pers. Restraint of Flint, 174
Wn.2d 539, 277 P.3d 657 (2012) (no vested right to remain in community
custody).
Arends’s assertion that there is “no conceptual difference between the
juvenile sealing scheme and the firearm restoration scheme” is unpersuasive.
The statutes at issue in T.K. II and the present case are markedly different. The
juvenile sealing scheme aims to “limit public access to juvenile court records in
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No. 85870-0-I/12
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recognition of the unique purpose of juvenile courts to rehabilitate and reintegrate
youth into society.” State v. S.J.C., 183 Wn.2d 408, 419, 352 P.3d 749 (2015).
The legislature has repeatedly recognized that “ ‘[c]hildren are different’ ” from
adults and that “ ‘our criminal justice system [must] address this difference when
punishing children.’ ” State v. Anderson, 200 Wn.2d 266, 285, 516 P.3d 1213
(2022) (second alteration in original) (quoting In re Pers. Restraint of Ali, 196
Wn.2d 220, 225, 474 P.3d 507 (2020). Rather than restoring a right, the act of
sealing gives juveniles new rights to protect their futures.
In contrast, the firearm restoration scheme is carefully structured to further
public safety and prevent gun violence. Firearm restoration returns a right that
was purposefully taken away to protect the public. Although the two statutes
share some similarities, their vast difference in subject matter and legislative
intent sets them apart. T.K. II is readily distinguishable from the case at hand.
Because we conclude that Arends did not possess a vested right to
proceed under former RCW 9.41.040, we conclude that the court did not err in
denying Arends’s restoration petition.
We affirm.
WE CONCUR:
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