City of Seattle v. Fuller

Wiggins, J.

¶31 (dissenting) — Washington courts have no inherent power to impose restitution obligations in criminal cases but may do so only when the legislature has specifically authorized restitution by statute. The legislature has created several types of restitution, each governed by its own statute. It necessarily follows that a court can impose only the specific type of restitution authorized by the applicable statute. The majority today ignores this inescapable conclusion and grants the Seattle Municipal Court (SMC) the power to impose restitution in addition to a fine, a power expressly reserved to the superior court. The majority grants the SMC this power despite the clear statutory language, substituting the majority’s own hunch that the legislature did not mean what it said. Because this court has no power to rewrite statutes, I dissent.

*280ANALYSIS

¶32 Of the various species of restitution in Washington, two are at issue here. First, there is restitution under RCW 9A.20.030, which may amount to double the actual amount of enrichment, but may be awarded only “in lieu of” a fine:7

If a person has gained money or property or caused a victim to lose money or property through the commission of a crime . . . , the court, in lieu of imposing the fine authorized for the offense under RCW 9A.20.020, may order the defendant to pay an amount, fixed by the court, not to exceed double the amount of the defendant’s gain or victim’s loss from the commission of a crime. Such amount may be used to provide restitution to the victim at the order of the court.

Id. at (1). Second, there is restitution under RCW 9.92.060 and 9.95.210, which has no such doubling provision but may be awarded in addition to a fine:

As a condition to suspension of sentence, the superior court shall require the payment of the penalty assessment required by RCW 7.68.035. In addition, the superior court may require the convicted person to make such monetary payments, on such terms as the superior court deems appropriate under the circumstances, as are necessary ... to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question ....

RCW 9.92.060(2); see also RCW 9.95.210(2). These forms of restitution operate differently, arise from different chapters of the RCW, and — by their own terms — apply to different courts. The majority fails to recognize these differences and holds that the legislature has authorized the municipal court to impose restitution under both statutory schemes. *281To the contrary, imposition of restitution under RCW 9.92.060 and 9.95.210 is reserved for the superior court, as I explain below. The municipal court has authority to impose restitution only under RCW 9A.20.030.

I. RCW 9.92.060 and 9.95.210 authorize only the superior court, not courts of limited jurisdiction, to order restitution

¶33 When RCW 9.92.060 was first enacted, it applied to the “superior court.” Laws of 1905, ch. 24, § 1. Four years later, the legislature deleted the word “superior” before “court.” Laws of 1909, ch. 249, § 28. This court recognized the new language to mean that the statute applied to all courts. State ex rel. Graham v. Willey, 168 Wash. 340, 343, 12 P.2d 393 (1932). Similarly, when it was first enacted, RCW 9.95.210 referred to simply “the court.” Rem. Rev. Stat. § 10249-5b. In 1996, the legislature reinserted the word “superior” before “court” in RCW 9.92.060 and added the word “superior” before “court” in RCW 9.95.210.8 Laws of 1996, ch. 298, §§ 3, 5.

*282¶34 This court has held that “ ‘where a law is amended and a material change is made in the wording, it is presumed that the legislature intended a change in the law.’ ” Guillen v. Pierce County, 144 Wn.2d 696, 723, 31 P.3d 628 (2001) (quoting Home Indem. Co. v. McClellan Motors, Inc., 77 Wn.2d 1, 3, 459 P.2d 389 (1969)), rev’d in part on other grounds, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). Similarly, when we interpret a statute, we must give meaning to all the language used, “ ‘with no portion rendered meaningless or superfluous.’ ” G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) (internal quotation marks omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). Taken together, these well-established maxims mean that we must give *283effect to the legislature’s insertion of the word “superior” before “court” in RCW 9.92.060 and 9.95.210.

¶35 The majority does not contest the clear meaning of the language of RCW 9.92.060 and 9.95.210. In fact, the majority admits that “[a] plain reading of RCW 9.92.060(2) and RCW 9.95.210(2) demonstrates that these statutes address only the authority of superior courts to impose restitution and thus do not themselves provide such authority to limited jurisdiction courts.” Majority at 270. I agree, and I believe the majority’s analysis should end there. Instead, the majority goes on to speculate about the legislature’s intent to reach a result that is plainly inconsistent with the language of the statute. As I discuss below, the majority’s theories are unavailing.

II. RCW 9.92.060 and 9.95.210 do not “generally conferí ]” the power to impose restitution

¶36 RCW 35.20.010(1) provides that the municipal court shall exercise those powers granted to it under chapter 35.20 RCW, “together with such powers and jurisdiction as is generally conferred in this state either by common law or statute.” Similarly, RCW 35.20.250 establishes “concurrent jurisdiction with the superior court and district court...” on the part of the municipal court. The majority does not assert that the power of restitution exists at common law, and such a position is untenable. As this court has consistently recognized, “The authority to impose restitution is not an inherent power of the court, but is derived from statutes.” State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).

¶37 The issue then becomes whether there is any statute under which restitution is “generally conferred in this state” within the meaning of the concurrency statutes for the SMC, RCW 35.20.010, or RCW 35.20.250. The majority concludes that restitution is “ ‘generally conferred in this state’ ” by RCW 9.92.060 and 9.95.210. Majority at 271 (quoting RCW 35.20.010(1)). This conclusion was probably correct before 1996, when the legislature amended the *284statute by changing the authority to grant restitution from “the court” to “the superior court”; a generic reference to “the court” does seem to be a power “generally conferred in this state.” But after 1996, the authority to grant restitution under these two statutes is limited to “the superior court,” which is not an authority “generally conferred”; it is an authority specifically conferred upon one level of court, not on other levels of court. Indeed, these two statutes repeatedly grant powers to “the superior court,” not to any other court. RCW 9.92.060(2) (referring to “the superior court” in each of the three sentences of the section); RCW 9.95.210(2) (same). Nothing in the concurrency statutes suggests that these sections are meant to vest the municipal court with any special substantive power, but only those powers that the legislature generally granted to the courts.

¶38 If the “generally conferred” language of RCW 35.20.010 could sweep in the superior court’s power to impose restitution plus a fine, then why could it not sweep in the felony restitution power of the Sentencing Reform Act of 1981, RCW 9.94A.505, or the mandatory restitution provision of the Juvenile Justice Act of 1977, RCW 13.40.190?9 A “generally conferred” power, by definition, cannot refer to any power wielded by any court. It can only mean a power wielded by most or all other courts. This means that the municipal court inherits only those powers granted to “the court” without a qualifier (such as RCW 9A.20.030 restitution, as I explain below).

¶39 The majority argues that the restitution power of RCW 9.92.060 and 9.95.210 is “generally conferred” because “there is no language in RCW 9.92.060[ ] and RCW 9.95-.210 [ ] suggesting the legislature intended to discriminate between defendants convicted of the same crimes in supe*285rior courts and municipal courts.” Majority at 271. Similarly, the majority argues that “[n]othing suggests that the addition of ‘superior’ was intended to alter the restitution scheme that had been in place for 75 years.” Id. at 273. With respect, the majority asks the wrong question when it looks for language stating that the municipal court cannot impose restitution in addition to a fine. Because restitution is available only through statute, the only relevant question is whether the statute states that the municipal court can impose restitution in addition to a fine. It does not, as the majority admits. Id. at 269-71.

¶40 Of course there is such language — when the legislature amended these two statutes by changing “the court” to “the superior court,” the legislature clearly inserted language discriminating between defendants convicted in superior court and those convicted in municipal court.

¶41 In support of its theory that the superior court’s restitution power can be inferred into the purview of the municipal court, the majority points to State v. Wicklund, 96 Wn.2d 798, 638 P.2d 1241 (1982). In that case, we held that district courts had the power to determine competency, despite the absence of an explicit statutory grant of that authority. RCW 3.66.010(1) provides that “where no special provision is otherwise made by law, [the district court] shall be vested with all the necessary powers which are possessed by courts of record in this state . . . .” We held that determining competency was just such a necessary power, noting that before the legislature ever involved itself with competency determinations, the courts had been relying on inherent judicial powers to determine competency. Id. at 801. Because determining competency is a necessary power of the courts, we held, a court of limited jurisdiction should be able to determine competency just as a court of general jurisdiction can. Id. at 804.

¶42 Unlike determining competency, imposing restitution is not a necessary power of criminal courts. Rather, it derives entirely from legislative enactment. Davison, 116 *286Wn.2d at 920. And even if imposing restitution in criminal cases were an inherent power of all courts, the specific brand of restitution described by RCW 9.92.060 and 9.95.210 — that is, imposing restitution in addition to a fine — is not.

III. RCW 9A.20.030 “generally conferís]” the power to impose restitution upon courts, but not the type of restitution awarded here

¶43 Many of the majority’s arguments concern the ability of courts to grant restitution in general. These arguments miss the mark because I do not argue that municipal courts cannot grant any sort of restitution — only that restitution in addition to a fine is a power specifically reserved to the superior court. I agree with the majority that restitution in lieu of a fine is permitted by statute.

¶44 RCW 9A.20.030(1) allows “the court” to order restitution “in lieu of” a fine. The majority decides without analysis that this language means the scope of RCW 9A.20.030 covers courts of limited jurisdiction, and I agree. In Willey, we read the absence of limiting qualifiers on the term “court,” or of any terms that purport to discriminate between different court systems, to mean that “the court” means any court. See 168 Wash, at 343. Similarly, the unqualified language “the court” in RCW 9A.20.030 is properly read to mean that the statute creates a general power of courts to impose restitution in lieu of a fine. I would also adopt the majority’s reading of State v. Shannahan, 69 Wn. App. 512, 514 n.l, 849 P.2d 1239 (1993), which makes RCW 9A.20.030 applicable to crimes committed at any time.

¶45 This reading of RCW 9A.20.030 defeats the majority’s artificial dilemma concerning the collections statutes, RCW 3.66.120 and .130. These statutes provide for court-enforced collection and a judgment lien on restitution ordered by a court of limited jurisdiction. The majority reasons that “ [i] f courts of limited jurisdiction, including *287municipal courts, lack authority to impose restitution then these statutes have no purpose.” Majority at 274. But courts of limited jurisdiction do not lack authority to impose restitution — they lack the authority to impose restitution in addition to a fine. RCW 3.66.120 and .130 are not probative as to the applicability of RCW 9.92.060 and 9.95.210 to municipal courts because the collections statutes do not specifically cross-reference any particular type of restitution. The majority indicates no reason that the collections statutes — or the “generally conferred” language of RCW 35.20.010, for that matter — apply to anything more than the general restitution power enjoyed by all courts under RCW 9A.20.030.

IV. The majority’s policy arguments cannot override the plain language of the statute

¶46 The majority points to various policy justifications in favor of court-ordered restitution. Whatever the force of these policy considerations, they cannot stand in the face of the statute’s plain language limiting restitution in addition to a fine to the purview of the superior court. This court does not stand in the position of the legislature and must apply the plain language of the statute instead of rewriting it, as the majority believes it should have been. We have consistently held that this court “may not add language to a clear statute, even if it believes the Legislature intended something else but failed to express it adequately.” State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997); see also State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006); Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).

¶47 In any event, the policy concerns raised by respondent and by amicus Washington Association of Prosecuting Attorneys are unfounded. RCW 9A.20.030 permits the municipal courts — like all courts — to impose restitution, or even double the amount. To hold that RCW 9.92.060 and 9.95.210 do not reach the municipal court, as I would do today, would not invalidate the many restitution orders that *288already exist or jeopardize the SMC’s customary practice of imposing restitution. All it would do is compel courts of limited jurisdiction to choose one or the other — a fine or restitution. That is the scheme that the legislature plainly set out, and we are not at liberty to rewrite the statutes even if we think it would be wise to do so.

¶48 For these reasons, I respectfully dissent.

Stephens, J., concurs with Wiggins, J.

The majority argues that RCW 9A.20.030 does not limit restitution to cases where no fine is imposed. Majority at 278. This is a puzzling reading of the statutory language “in lieu of.” If a court imposes both restitution and a fine, the restitution is not awarded “in lieu of” the fine. A court that wishes to impose both restitution and a fine cannot rely on RCW 9A.20.030 for its authority to impose restitution. Rather, it must look to RCW 9.92.060(2) and 9.95.210(2).

Presently, RCW 9.92.060 provides in part:

(2) As a condition to suspension of sentence, the superior court shall require the payment of the penalty assessment required by RCW 7.68.035. In addition, the superior court may require the convicted person to make such monetary payments, on such terms as the superior court deems appropriate under the circumstances, as are necessary: (a) To comply with any order of the court for the payment of family support; (b) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement; (c) to pay any fine imposed and not suspended and the court or other costs incurred in the prosecution of the case, including reimbursement of the state for costs of extradition if return to this state by extradition was required; and (d) to contribute to a county or interlocal drug fund.

(Emphasis added.)

RCW 9.95.210 provides in part:

(2) In the order granting probation and as a condition thereof, the superior court may in its discretion imprison the defendant in the county jail for a period not exceeding one year and may fine the defendant any sum not exceeding the *282statutory limit for the offense committed, and court costs. As a condition of probation, the superior court shall require the payment of the penalty assessment required by RCW 7.68.035. The superior court may also require the defendant to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary: (a) To comply with any order of the court for the payment of family support; (b) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question or when the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement; (c) to pay such fine as may be imposed and court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required; (d) following consideration of the financial condition of the person subject to possible electronic monitoring, to pay for the costs of electronic monitoring if that monitoring was required by the court as a condition of release from custody or as a condition of probation; (e) to contribute to a county or interlocal drug fund; and (f) to make restitution to a public agency for the costs of an emergency response under RCW 38.52.430, and may require bonds for the faithful observance of any and all conditions imposed in the probation.
(3) The superior court shall order restitution in all cases where the victim is entitled to benefits under the crime victims’ compensation act, chapter 7.68 RCW. If the superior court does not order restitution and the victim of the crime has been determined to be entitled to benefits under the crime victims’ compensation act, the department of labor and industries, as administrator of the crime victims’ compensation program, may petition the superior court within one year of imposition of the sentence for entry of a restitution order. Upon receipt of a petition from the department of labor and industries, the superior court shall hold a restitution hearing and shall enter a restitution order.

(Emphasis added.)

In response, the majority argues that the present case is different because municipal courts have concurrent jurisdiction with superior courts; that is, they hear the same cases and thus they should have the same power to award restitution. But the majority still cannot produce a specific statute that provides for its desired result. The majority explains why its result might make sense, but not why its result is permitted by statute.