State v. Catling

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IN CLERKS OFFICE
This opinion was
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State V. Catling

No. 95794-1

GonzAlez,J.(dissenting)—As a result of Jason Catling's debilitating

condition, he cannot work and relies on Social Security disability income(SSDI)to

meet his most basic needs. Catling qualified for disability income more than 10

years ago and, given his medical condition, will likely remain on it for the rest of

his life. As the majority properly recognizes, a court may not order someone to

pay legal financial obligations(LFOs)out of SSDI. Majority at 8; City ofRichland

V. Wakefield, 186 Wn.2d 596, 609, 380 P.3d 459(2016); 42 U.S.C. § 407(a). The

majority nonetheless concludes that a court may order that same individual to pay

those same LFOs in a judgment and sentence. But a judgment and sentence is an

order of the court, and when that order imposes an LFO on a person who has only

SSDI, that order is unlawful. See Wakefield, 186 Wn.2d at 609. I respectfully

dissent.

Plainly, it violates the antiattachment provision of the Social Security Act to

order someone who has only SSDI to pay LFOs. Wakefield, 186 Wn.2d at 609; 42
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)

U.S.C. § 407(a). I see no distinction between imposing such an LFO in a judgment

and sentence and directing payment by separate order.

For individuals whose sole income is SSDI, the burdensome and coercive

effects of LFOs will all too often result in SSDI being used to satisfy them.

Individuals with LFOs are subject to the varying demands ofthe courts and clerks'

offices for check-ins in order to determine the individuals' ability to pay their

outstanding debts. ROW 9.94A.760(8)(b); see also State v. Nason, 168 Wn.2d

936, 942, 233 P.3d 848 (2010)(requiring person to pay LFOs or automatically

report to jail). We can no longer ignore the fact that unpaid and unpayable LFOs

can impose significant burdens on people with LFOs and their families. Tarra

Simmons, Transcending the Stigma ofa Criminal Record: A Proposal to Reform

State Bar Character and Fitness Evaluations, 128 Yale L.J. Forum 759, 761

(2019). This can have a lifetime effect. As recognized by the dissenting judge

below,"[Bjecause of his disability, [Catling] abides trapped in an enduring legal

process and he suffers other coercive consequences." See State v. Catling, 2 Wn.

App. 2d 819, 845, 413 P.3d 27(2018)(Fearing, C.J., dissenting).

Court clerks are often charged with collecting LFOs. These clerks have the

authority to summon individuals with LFOs to report before them and share their

financial situation, including responding under oath to questions of the clerk and

providing sufficient documentation. RCW 9.94A.760(5),(8)(b). As Catling
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)

stresses, "Nothing in this statute limits the number oftimes the clerk can summon

the debtor to the clerk's office." Pet'r's Suppl. Br. at 11. This imposition is

particularly burdensome for Catling, who has a debilitating condition that leaves

him in chronic pain.

We should not ignore the heavy collateral consequences imposed by LFOs.

LFOs act as "a lien on Catling's civil rights." Catling, 2 Wn. App. 2d at 845

(Fearing, C.J., dissenting). An individual cannot vacate their record until their

LFO debt is satisfied and they receive a certificate of discharge, among other

requirements.^ Collateral consequences "appear in a variety of contexts and take a

variety offorms, including time-limited or lifetime bans on employment

opportunities, professional licenses, public benefits, public or private housing, and

financial aid or educational opportunities." Simmons, 128 Yale L.J. Forum at

761.

Our citizens have a constitutional right to vote. See Brower v. State, 137

Wn.2d 44, 68, 969 P.2d 42(1998)(finding a fundamental right to vote under

article I, section 19 ofthe Washington Constitution); see also Reynolds v. Sims,

377 U.S. 533, 561-62, 84 S. Ct. 1362,12 L. Ed. 2d 506(1964)(finding a

fundamental right to vote under the United States Constitution). This right is

* RCW 9.94A.640(1)(allowing anyone discharged under RCW 9.94A.637 to apply to vacate
their record of conviction),.637(1)(requiring payment of LFOs as a condition ofreceiving a
certificate of discharge).
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)

limited as long as an order to pay LFOs is outstanding. RCW 29A.08.520. For

those with a felony conviction, the right to vote cannot be permanently restored

without a certificate of discharge or a certificate of restoration issued by the

governor.^ Compromising the constitutional right to vote "leav[es] the most

vulnerable without a voice to change the system in which they are entangled."

Simmons, 128 YaleL.J.Forum at 760.

LFOs disproportionately affect disabled people who rely on SSDI. Without

the ability to work, their LFOs will likely persist and continue to negatively affect

their lives. See id. Individuals with lifelong disabilities that prevent them from

working may never be able to pay off their LFOs, resulting in a lifetime of

hearings about ability to pay LFOs and the negative consequences of having a

criminal record. See RCW 9.94A.760(8)(b). "Moreover, while many people with

disabilities already face barriers to employment, stable housing, and other

necessary elements of economic security, adding a criminal record into the mix can

pose additional obstacles that make living with a disability an even greater

challenge." Rebecca Vallas,Ctr.for Am.Progress,Disabled Behind Bars:

The Mass Incarceration of People with Disabilities in America's Jails and

^ RCW 29A.08.520(1)(provisional restoration of right to vote for those with felony conviction if
not under authority of Department of Corrections),(2)(the provisional restoration of the right to
vote can be revoked),(6)(right to vote may be permanently restored with, in relevant part, a
certificate of discharge under RCW 9.94A.637 or a certificate of restoration by the governor
under RCW 9.96.020).
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)

Prisons 3(2016), https://www.americanprogress.org/wp-

content/upIoads/2016/07/1800015 l/2CriminalJusticeDisability-report.pdf

[https://perma.cc/GJ89-T7M8].

"[A] debt must be capable of being paid, if it is not instead a lifetime [yoke]

of servitude." Loretta E. Lynch, U.S. Attorney General, Remarks at White House

Convening on Incarceration and Poverty(Dec. 3, 2015)

(https://www.justice.gov/opa/speech/attomey-general-loretta-e-lynch-delivers-

remarks-white-house-convening-incarceration-and [https://perma.cc/XQ3T-

49PK]). The majority ignores the reality that an imposition of LFOs is an order to

pay LFOs. I respectfully dissent.
State V. Catling, No. 95794-1 (Gonzalez, J., dissenting)