* James Didlake, Et Al., Appellants V. Department Of Licensing, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES DIDLAKE, DUSTIN
JOHNSON, SHELLY BURKE,
MONICA FISCHER, MICHAEL
BENNETT, individually and on behalf
of all classes of similarly situated
persons,
Appellants,
v.
WASHINGTON STATE, and
WASHINGTON STATE DEPARTMENT
OF LICENSING
Respondents.
No. 71633-6-1
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FILED: 	March 16, 2015
Leach, 	J. 	— 	Washington's 	implied 	consent 	statute, 	RCW 	46.20.308,
requires that a driver arrested for driving under the influence of an 	intoxicant
(DUI) pay a filing fee to obtain an administrative review hearing to prevent a
driver's 	license 	suspension 	or 	revocation. 	James 	Didlake, 	Dustin 	Johnson,
Shelly Burke, Monica Fischer, and Michael Bennett (collectively Didlake) appeal
a 	trial 	court decision 	that this fee 	for 	hearing 	requirement does 	not 	violate
procedural due process. 	Because the driving privilege is not a fundamental right
and 	the 	Department of 	Licensing 	(Department) 	waives 	the 	fee 	for 	indigent
drivers, Didlake does not establish a constitutional due process violation. 	And
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71633-6-1/2
because he received notice and a hearing, Didlake does not show that the fee
requirement violated due process in his case. 	Therefore, he cannot prove any
set of facts that would justify recovery for a procedural due process violation. We
affirm.
FACTS
At various times and 	places in 2010 or 	2011, 	police arrested 	James
Didlake, Dustin Johnson, Shelly Burke, Monica Fischer, and Michael Bennett for
DUI. As required by Washington's implied consent law, the Department initiated
license suspension 	proceedings against them. 	Didlake, 	Burke, 	Fischer, 	and
Bennett each paid a $200 fee for an administrative review hearing. 	After they
prevailed at their hearings, the Department rescinded their license suspensions.
Johnson paid two fees and prevailed at one of his two hearings related to two
separate arrests.
Didlake filed a 	class action lawsuit against the Department, asking for
injunctive and declaratory relief, plus a refund and damages. 	He alleged that the
statutory fee for an administrative hearing violates due process.1 	Didlake filed a
motion for class certification under CR 23. 	After filing its answer, the Department
filed a motion to dismiss Didlake's lawsuit under CR 12(b)(6).
1 While 	the 	complaint 	alleged 	both 	substantive 	and 	procedural 	due
process 	violations, 	Didlake 	has 	abandoned 	any 	substantive 	due 	process
argument on appeal.
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NO. 71633-6-1/3
At a hearing on November 16, 2012, the trial court heard the Department's
12(b)(6) motion. 	The court did not hear argument on Didlake's motion for class
certification.
In a memorandum opinion and order entered April 5, 2013, the trial court
granted the Department's motion to dismiss. 	Didlake asked the Washington
Supreme 	Court for 	direct 	review. 	On 	March 	5, 	2014, 	the 	Supreme 	Court
transferred the case to this court.
STANDARD OF REVIEW
When a party files an answer before filing a motion to dismiss under CR
12(b)(6), 	a 	court 	should 	consider 	the 	motion 	as 	one 	for judgment 	on 	the
pleadings under CR 12(c).2 	Motions under CR 12(b)(6) and 12(c) raise identical
issues, whether a request for relief states a claim for which a court can grant
relief, and this court reviews decisions under either rule de novo.3 A court may
dismiss a complaint under CR 12 only if "it appears beyond doubt that the plaintiff
cannot prove any set of facts which would justify recovery."4 	The court must
assume the truth of facts alleged in the complaint, as well as hypothetical facts,
2 Blenheim v. Dawson & Hall. Ltd., 35 Wn. App. 435, 437, 667 P.2d 125
(1983).
3 Gaspar v. Peshastin Hi-Up Growers, 131 Wn. App. 630, 634-35, 128
P.3d 627 (2006).
4 Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104
(1998).
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NO. 71633-6-1/4
viewing both in the light most favorable to the nonmoving party.5 If the trial court
considered matters outside the pleadings, the reviewing court treats a CR 12
motion as a motion for summary judgment under CR 56(c).6 Summary judgment
is appropriate if there are no genuine issues of material fact and the moving party
is entitled to judgment as a 	matter of law.7 	Here, the trial court considered
matters outside the pleadings: a declaration and fee study about administrative
costs, which the Department filed to support its motion to dismiss. 	Therefore, the
summary judgment standard applies. 	Because the parties agree that no disputes
of material fact exist, our de novo review under CR 56(c) is the same as it would
be under CR 12.
A constitutional challenge to a statute presents a question of law that this
court 	also 	reviews 	de 	novo.8 	A reviewing court 	presumes that a 	statute is
constitutional, and the party challenging it bears the burden of proving otherwise
beyond 	a 	reasonable doubt.9 	A party 	may 	bring a 	facial or an 	as-applied
challenge.10 	To prevail in a facial challenge, a party must show that "no set of
5 M.H. v. Corp. of Catholic Archbishop of Seattle, 162 Wn. App. 183, 189,
252 	P.3d 914 (2011) (citing 	Postema v. Pollution Control 	Hearings Bd., 	142
Wn.2d 68, 122-23, 11 P.3d 726 (2000)).
6 CR 12(c); P.E. Svs., LLC v. CPI Corp., 176 Wn.2d 198, 203-04, 289 P.3d
638 (2012); Blenheim, 35 Wn. App. at 438.
7 CR 56(c).
8 City of Bothell v. Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 (2011).
9 Morrison v. Dep't of Labor & Indus., 168 Wn. App. 269, 272, 277 P.3d
675 (2012) (citing State v. Shultz, 138 Wn.2d 638, 642, 980 P.2d 1265 (1999)).
10 City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).
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NO. 71633-6-1/5
circumstances 	exists 	in 	which 	the 	statute, 	as 	currently 	written, 	can 	be
constitutionally 	applied."11 	By contrast, 	a 	party 	succeeds 	in an 	as-applied
challenge by proving that an otherwise valid statute is unconstitutional as applied
to that party.12
ANALYSIS
Implied Consent Statute
Under Washington law, drivers in the state have given "implied consent" to
testing for alcohol or drug impairment.13 	This 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 of this state is deemed
to have consented to the administration of a blood alcohol test.'"14
The 	arresting 	law 	enforcement 	officer 	must 	immediately 	notify 	the
Department of the arrest and transmit a sworn report within 72 hours.15 	This
sworn report must state that the officer had reasonable grounds to believe that
the arrestee drove a motor vehicle under the influence of intoxicating liquor or
11 Moore, 151 Wn.2dat669.
12 Moore, 151 Wn.2d at 668-69.
13 	Former 	RCW 	46.20.308(1) 	(2008). 	In 2013, 	Engrossed 	Second
Substitute 	Senate 	Bill 	5912 	amended 	RCW 	46.20.308. 	The 	amendments
renumbered 	several subsections and 	eliminated 	statutory implied 	consent to
tests of a driver's blood. 	Laws of 2013, ch. 35, § 36. 	The citations here refer to
the law in effect at the time the appellants requested administrative hearings.
14 Nielsen v. Dep't of Licensing, 	177 Wn. App. 45, 49, 309 P.3d 1221
(2013) (guoting State v. Battels, 112 Wn.2d 882, 885, 774 P.2d 1183 (1989)).
15 Former RCW46.20.308(6)(e).
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NO. 71633-6-1/6
drugs.16 The report must further state that either the driver refused to take a test
or took a 	test that revealed 	a 	blood alcohol concentration (BAC) of 0.08 or
higher.17 	Upon receipt of the officer's report, the Department "shall suspend,
revoke, or deny" the driver's license effective 60 days from the date of arrest or
when the suspension is sustained at a hearing, whichever comes first.18
The implied consent law provides certain procedural protections to drivers.
The Department must give the driver written notice that it intends to suspend or
revoke the driver's license.19 	The Department must also notify the driver of the
right to a hearing and specify the steps to obtain one.20 	Within 20 days of this
notice, 	the 	driver 	may 	request 	in 	writing 	a 	formal 	hearing 	before 	the
Department.21 	As part of the request, the driver must pay a mandatory fee. 	The
Department may waive the fee, however, for drivers who are indigent.22
At the 	hearing, 	the 	driver 	may 	have 	assistance 	of counsel, 	question
witnesses, present evidence, and testify.23 	The hearing officer determines if the
officer 	had 	reasonable 	grounds to 	believe the driver 	was 	driving 	under the
16 Former RCW46.20.308(6)(e)(i).
17 Former RCW46.20.308(6)(e)(ii).
18 Former RCW 46.20.308(7).
19 Former RCW46.20.308(6)(a).
20 Former RCW 46.20.308(6)(b).
21 Former RCW 46.20.308(8).
22 	Former 	RCW 	46.20.308(8); 	RCW 	10.101.010(3) 	(definition 	of
"indigent"). 	As of October 1, 2012, the fee was $375. 	Laws of 2012, ch. 80, §
12.
23 Former RCW 46.20.308(8).
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NO. 71633-6-1/7
influence and if the driver refused to take a test or took a test that revealed a
BAC of 0.08 or higher. 	After the hearing, the Department "shall order that the
suspension, revocation, or denial either be rescinded or sustained."24
Standing
The parties each argue the issue of standing at some length. 	Most of the
discussion 	concerns 	Didlake's standing to 	bring 	claims 	related to 	a 	putative
class. 	Because the trial court dismissed Didlake's own claims, which he had
standing to bring, without ruling on his motion for class certification, we do not
address this issue.
Procedural Due Process
Didlake 	contends 	that 	the 	implied 	consent 	statute's 	required 	fee 	for
hearing violated his right to procedural due process. 	He appears to raise both
facial and as-applied challenges, arguing that due process requires an initial
hearing at no cost and that he and other members of the putative class should
receive refunds of the fees they paid to obtain hearings. 	Both the United States
and Washington State Constitutions declare that no person may be deprived of
life, liberty, or property without due process of law.25 	Didlake has a protected
property interest in his driver's license that Washington courts have recognized
24 Former RCW 46.20.308(8).
25 U.S. Const, amend. V, XIV, § 1; Wash. Const, art. I, § 3.
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NO. 71633-6-1/8
as "'important'" and "'substantial.'"26 	In any proceeding to deprive him of this
property 	interest, 	the 	State 	must 	afford 	him 	procedural 	due 	process.27
Procedural due process imposes limits on governmental decisions that deprive a
person of "liberty" or "property" interests within the meaning of a constitution's
due process clause.28
Essential 	elements 	of 	procedural 	due 	process 	include 	notice 	and 	a
meaningful opportunity to be heard.29 	"A meaningful opportunity to be heard
means 'at a meaningful time and in a meaningful manner.'"30 	To determine what
procedural protections due process requires in a particular situation, a court must
consider three factors: 	(1) the private interest affected, 	(2) the risk that the
relevant procedures will erroneously deprive a party of that interest, and (3) any
countervailing governmental interests involved.31
26 Moore, 151 Wn.2d at 670-71 (quoting State v. Poison, 138 Wn.2d 773,
776-77, 982 P.2d 100 (1999); Mackev v. Montrvm. 443 U.S. 1, 11, 99 S. Ct.
2612,61 L. Ed. 2d 321 (1979)).
27 Moore, 151 Wn.2d at 670; State v. Storhoff, 133 Wn.2d 523, 527, 946
P.2d 783 (1997) (citing Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L.
Ed. 2d 90 (1971)).
28 Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).
29 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985).
30 	Morrison, 	168 Wn. 	App. 	at 273 	(internal 	quotation 	marks 	omitted)
(quoting 	Downey v. 	Pierce County, 	165 	Wn. App. 	152, 	165, 	267 	P.3d 	445
(2011)).
31 Mathews, 424 U.S. at 334-35.
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NO. 71633-6-1/9
The first factor 	requires a 	court to 	consider the 	nature of the private
interest affected. 	In cases involving due process challenges to filing fees, both
the 	United 	States 	and 	Washington 	Supreme 	Courts 	have 	held 	that 	if a
fundamental interest is not involved, requiring a fee for access to court or an
administrative hearing, even from indigent persons, does not violate due process.
Boddie v. Connecticut32 involved a class action lawsuit brought by litigants
who could not pay the fees and costs required to obtain a divorce. 	There, the
United 	States 	Supreme 	Court 	noted 	the 	state's 	monopolization 	of 	divorce
proceedings and held that due process prohibits a state from denying indigent
persons access to courts for purposes of dissolving a marriage solely because of
their inability to pay fees.33 	The Court emphasized that it did not decide "that
access for all individuals to the courts is a 	right that is, in all circumstances,
guaranteed by the Due Process Clause of the Fourteenth Amendment so that its
exercise may not be placed beyond the reach of any individual."34 	Rather, the
Court 	limited 	its 	holding 	to 	such 	cases 	where 	access 	is 	"the 	exclusive
precondition to the adjustment of a fundamental human relationship."35
Two years 	later, 	in United 	States 	v. 	Kras,36 	the 	Court 	considered 	a
constitutional challenge to 	the filing fees 	required for 	a 	no-asset bankruptcy
32 401 U.S. 371, 372-73, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971).
33 Boddie, 401 U.S. at 374.
34 Boddie, 401 U.S. at 382.
35 Boddie, 401 U.S. at 383.
36 409 U.S. 434, 435, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973).
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NO. 71633-6-1/10
proceeding. 	The 	Court 	noted 	that 	bankruptcy 	discharge 	involves 	no
"fundamental interest" and "does not rise to the same constitutional level" as the
interest in establishing or dissolving a marriage.37 The Court recognized Boddie
"obviously stopped short of an unlimited rule that an indigent at all times and in
all cases has the right to relief without the payment of fees" and declined to
extend Boddie to proceedings not involving a fundamental interest.38
The same year, in Ortwein v. Schwab,39 the Court rejected the argument
that because the State waived fees for certain types of proceedings, due process
required a fee waiver for all civil appeals. 	The Court concluded that as in Kras,
the Ortwein appellants' challenge to the reduction in their welfare benefits was in
the "'area of economics and social welfare'" and not a fundamental interest.40
The 	Court 	held 	that 	the 	government's 	interest 	in offsetting 	costs 	rationally
justified the filing fee and that the fee did not violate due process.41
More than 20 years later, the Court reviewed the Boddie line of cases. 	In
M.L.B. v. S.L.J.,42 the Court held that requiring an indigent parent to pay a record
preparation fee to appeal the termination of her parental 	rights 	violated due
process. 	Discussing its holdings in Kras and Ortwein, the Court reiterated that "a
37 Kras, 409 U.S. at 445.
38 Kras, 409 U.S. at 450.
39 410 U.S. 656, 661, 93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973).
40 Ortwein, 410 U.S. at 660 (quoting Kras, 409 U.S. at 446).
41 Ortwein, 410 U.S. at 660-61.
42 519 U.S. 102, 106-07, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996).
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NO. 71633-6-1/11
constitutional requirement to waive court fees in civil cases is the exception, not
the general rule."43 	But the Court noted, "Choices about marriage, family life, and
the upbringing of children are among associational rights this Court has ranked
as 	'of 	basic 	importance 	in 	our 	society' 	that 	the 	Fourteenth 	Amendment
protects."44 	As in Boddie, due process prohibited a financial barrier to court
access to protect a fundamental interest like parental rights.
Washington courts have conducted a similar analysis and almost always
have 	upheld 	the 	constitutionality 	of 	filing 	fees, 	distinguishing 	between
fundamental and other interests. 	In Bowman v. Waldt,45 	this court held that due
process did not require King County to waive the fees necessary for an indigent
judgment creditor to secure the 	execution 	of a 	sheriff's 	levy. 	Adopting the
rationale of Kras and Ortwein, this court refused to recognize "a constitutional
right of access to the courts if the case is one 'in the area of economics and
social welfare.'"46 	Where the right involved is not fundamental, 	reasoned the
court, an indigent individual does not have a constitutional right to a fee waiver.47
In Housing Authority v. Saviors,48 an 	indigent appellant challenged the
filing fee required to appeal her eviction from public housing. 	The Washington
43M.LB.,519U.S.at114.
44 M.L.B.. 519 U.S. at 116 (quoting Boddie, 401 U.S. at 376).
45 9 Wn. App. 562, 570, 513 P.2d 559 (1973).
46 Bowman, 9 Wn. App. at 570 (quoting Ortwein, 410 U.S. at 660).
47 Bowman, 9 Wn. App. at 570.
48 87 Wn.2d 732, 733, 557 P.2d 321 (1976).
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NO. 71633-6-1/12
Supreme Court 	held 	that 	because "the 	interest 	involved 	lies 	in the area 	of
economics and social welfare," the filing fee did not violate due process.49
In Downey v. Pierce County,50 however, Division Two of this court struck
down 	a 	fee 	requirement 	in 	a 	county 	ordinance 	about 	dangerous 	animal
declarations (DADs). 	The ordinance required a cited dog owner to pay $250 to
obtain an informal, unrecorded auditor's review.51 	If the auditor upheld the DAD,
a dog owner who wished to appeal had to pay an additional $500 to obtain a full
evidentiary review before a hearing officer.52 	The court found that pet owners
have "arguably 	more than 	a 	mere economic 	interest 	because 	pets 	are 	not
fungible."53 	The court also found that the county's procedures to issue and
review a DAD were insufficient under the Mathews factors, especially because
the 	initial fee 	did not cover a 	constitutionally adequate evidentiary 	review.54
Given this more substantial interest and the county's inadequate procedures, the
court held that "charging a fee to obtain an initial evidentiary review of a DAD
violates 	due 	process."55 	However, 	the 	Downey 	opinion 	also 	expressly
49 Saviors, 87 Wn.2d at 739, 744.
50 165 Wn. App. 152, 156, 267 P.3d 445 (2011).
51 Downey, 165 Wn. App. at 157.
52 Downey, 165 Wn. App. at 158.
53 Downey, 165 Wn. App. at 165.
54 Downey, 165 Wn. App. at 167.
55 Downey, 165 Wn. App. at 166.
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NO. 71633-6-1/13
acknowledged that "'there is no constitutional due process right to appeal civil
cases involving 'only property or financial interests.'"56
In Morrison v. Department of Labor & Industries,57 Morrison challenged on
due process grounds the filing fees required to obtain administrative review of
eight electrical law citations. 	Citing Boddie, Kras, Ortwein, and Bowman, this
court concluded that "where there is no fundamental right involved but only a
financial 	one, 	it is 	permissible to 	impose a 	monetary prerequisite to 	file an
appeal."58 	The court distinguished the dog owner's private interests in Downey
as "much more expansive" than Morrison's, including the interest in keeping a
pet, economic interests in not having to pay additional inspection or insurance
fees, and the interest in not being subject to criminal liability for later violations.59
"Morrison's interest, by contrast, is solely monetary."60
Didlake attempts to distinguish Ortwein and Saviors. 	He correctly notes
the appellants in those cases received initial hearings at no cost. 	He asserts that
Boddie and Kras do not control because they involved citizens seeking access to
courts. 	By contrast, 	he argues, 	his 	case involves the government initiating
proceedings to take away a 	property interest. 	But his arguments ignore the
56 Downey, 165 Wn. App. at 167 (quoting In re Dependency of Grove, 127
Wn.2d 221, 240, 897 P.2d 1252 (1995)).
57 168 Wn. App. 269, 271, 277 P.3d 675 (2012).
58 Morrison, 168 Wn. App. at 273-74. 	By "appeal," the court refers to an
initial evidentiary review of the citations. 	Morrison, 168 Wn. App. at 271.
59 Morrison, 168 Wn. App. at 275.
60 Morrison, 168 Wn. App. at 275.
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NO. 71633-6-1 /14
distinction that the United States Supreme Court and Washington courts have
repeatedly 	found 	to 	be 	dispositive 	in 	filing 	fee 	challenges. 	Courts 	have
consistently distinguished between fundamental interests and interests that are
"solely monetary," involving "economics and social welfare," or even "important"
or "substantial." 	If the interest involved is fundamental, due process requires
access for all. 	A fee waiver for indigent litigants accomplishes this mandate. 	If
the interest is not fundamental, "a monetary prerequisite to an appeal is thus
permissible,"61 even for indigent appellants.
Downey 	involved 	an 	interest 	that 	was 	"arguably 	more 	than 	a 	mere
economic interest" but still a property interest under the law.62 	The 	Downey
court's 	unfortunate 	dicta 	that 	"due 	process 	requires 	access 	to 	an 	initial
evidentiary hearing without charge"63 diverges from this well settled rule. 	But the
DAD ordinance in Downey had no fee waiver provision, and the court did not
address whether such a waiver for indigent dog owners would cure any due
process violation. 	And as this court noted in Morrison, Downey acknowledged
the general rule that there is no constitutional right to appeal civil cases where
only financial or property rights are at stake.64 	Even in the case of fundamental
61 Morrison, 168 Wn. App. at 275.
62 As 	Division Two observed in Downey, even the unique nonfungible
interest in a family pet is classified as a property interest under Washington law.
Downey, 165 Wn. App. at 165 n.13.
63 Downey, 165 Wn. App. at 163.
64 Morrison, 168 Wn. App. at 275 (quoting Downey, 165 Wn. App. at 167).
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NO. 71633-6-1/15
rights like marriage or parenting, the United States Supreme Court has not struck
down filing fees as unconstitutional per se. 	Rather, the Court has mandated
access to all regardless of ability to pay, which the government may accomplish
via a fee waiver.65
Courts 	have 	identified 	the 	driving 	privilege 	as 	an 	"important" 	and
"substantial" 	but 	not fundamental 	right. 	Therefore, 	federal 	and 	state 	cases
decided after Boddie support the constitutionality of a filing fee for access to a
suspension or revocation hearing, even for indigent appellants. 	By providing a
fee waiver for indigent licensees, Washington's implied consent law does more
than the constitution requires, and between 2009 and 2011, the State waived the
fee for 36 percent of drivers who obtained a hearing.66 This contradicts Didlake's
assertion that the filing fee has a "chilling effect" on drivers' exercise of their due
process rights. 	Thus, he fails to establish a facial challenge on due process
grounds. 	And because he paid the fee and received a hearing that complied with
due process, he does not show that the fee requirement is unconstitutional as
applied to him. 	Whether facial or as-applied, Didlake's due process challenges
fail.
65 This is consistent with the 	holdings of numerous cases from 	other
jurisdictions that the Department cites in its brief.
66 Of 28,405 DUI 	hearings conducted 	in the 2009-2011 	biennium, the
Department waived fees for 10,260.
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NO. 71633-6-1 /16
Because the interest involved here is not fundamental and therefore no
constitutional right of access to a 	hearing exists, we do 	not analyze the two
remaining Mathews factors.67
CONCLUSION
Because Didlake fails to establish that the implied consent statute's fee
requirement violates procedural due process, we affirm the trial court's order
dismissing Didlake's class action claim.
WE CONCUR:
-££ tr^fr^. 	t,J
67 See Morrison, 168 Wn. App. at 275.
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