In re Troupe

Decision Date07 August 2018
Docket NumberNo. 50657-2-II,50657-2-II
Citation423 P.3d 878
Parties In the MATTER OF the Personal Restraint Petition of David A. TROUPE, Petitioner.
CourtWashington Court of Appeals

Peter B. Tiller, The Tiller Law Firm, P.O. Box 58, Centralia, WA, 98531-0058, for Petitioner.

Timothy John Feulner, Office of the Attorney General, 1125 Washington St. SE, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondent.


Johanson, J.¶ 1 Under RCW 4.24.430, this court must deny an inmate’s request to waive filing fees in any civil action or appeal against the State where the inmate has brought at least three prior actions that were dismissed because they were "frivolous or malicious" and where the action would not affect the duration of confinement. The clerk of this court determined that this statute applied to David A. Troupe’s May 15, 2017 personal restraint petition (PRP) and ruled that the PRP would be dismissed unless Troupe paid a $250 filing fee.

¶ 2 Troupe seeks to modify our court clerk’s ruling on the basis that our court clerk violated his due process rights and that RCW 4.24.430 violates equal protection. We hold that although RCW 4.24.430 is not unconstitutionally vague, procedural due process required our court clerk’s letter ruling to identify the prior actions that our court clerk relied on when he determined that the statute applied. We also hold that Troupe’s equal protection argument lacks merit. Accordingly, we grant Troupe’s motion to modify our court clerk’s ruling. We direct our court clerk to reissue his ruling and to specifically identify the strikes upon which he relies to require Troupe to pay a filing fee.


¶ 3 On May 15, 2017, Troupe filed a PRP in this court, alleging that the Department of Corrections (DOC) prevented him from receiving his mail in violation of his constitutional rights. Troupe also submitted a statement of finances and requested waiver of the $250 filing fee.

¶ 4 Our court clerk informed Troupe by letter ruling that "[u]nder In re Personal Restraint of Troupe , 194 Wn. App. 701 (2016) [, review denied , 188 Wn.2d 1002, 393 P.3d 1218 (2017) ] and RCW 4.24.430" Troupe had to pay the $250 filing fee within 30 days of the letter ruling or face dismissal of his petition. Letter Ruling, Troupe , No. 50657-2-II (Wash. Ct. App. June 28, 2017). Troupe then filed a "Motion To Waive Fi[l]ing Fee," requesting to modify our clerk’s ruling by waiving the filing fee and to have counsel appointed. We appointed counsel for Troupe, ordered supplemental briefing, and set the matter for oral argument.

¶ 5 Previously, in 2015, Troupe had filed another PRP challenging conditions of his confinement and obtained a fee waiver. Troupe , 194 Wash. App. at 703, 378 P.3d 239. After a commissioner of this court denied the State’s motion to revoke the fee waiver, the State filed a motion to modify the commissioner’s ruling. Troupe , 194 Wash. App. at 703, 378 P.3d 239. Holding that RCW 4.24.430 is valid and applies to PRPs, we granted the State’s motion and ordered Troupe to pay his filing fee before we would consider his PRP’s merits. Troupe , 194 Wash. App. at 708, 378 P.3d 239.


¶ 6 The merits of Troupe’s PRP alleging that DOC violated his constitutional rights regarding his mail are not before us. Rather, Troupe raises constitutional challenges to RCW 4.24.430 and our court clerk’s letter ruling denying his motion to waive the filing fee.


¶ 7 We review questions of constitutional law, such as a statute’s constitutionality, de novo. State v. Murray , 190 Wash.2d 727, 416 P.3d 1225, 1227 (2018). We presume that a statute is constitutional, and the challenging party bears the burden to prove that the statute is unconstitutional beyond a reasonable doubt. State v. Sullivan , 143 Wash.2d 162, 180, 19 P.3d 1012 (2001).

¶ 8 We may waive a PRP petitioner’s statutory filing fee and allow the petitioner to proceed in forma pauperis if the petitioner sets forth by affidavit his inability to pay the fee and the proceeding is brought in good faith. RCW 7.36.250 ; RAP 16.8. However,

[i]f a person serving a criminal sentence ... seeks leave to proceed in state court without payment of filing fees in any civil action or appeal against the state, ... except an action that, if successful, would affect the duration of the person’s confinement, the court shall deny the request for waiver of the court filing fees if the person has, on three or more occasions while incarcerated or detained in any such facility, brought an action or appeal that was dismissed by a state or federal court on grounds that it was frivolous or malicious. One of the three previous dismissals must have involved an action or appeal commenced after July 22, 2011.

RCW 4.24.430 (emphasis added).1


¶ 9 First, Troupe argues that RCW 4.24.430 ’s "frivolous or malicious" and "an action or appeal" language is unconstitutionally vague as applied to him under the Fifth and Fourteenth Amendments to the United States Constitution.2 The State disputes Troupe’s arguments and also contends that the void-for-vagueness doctrine does not apply to RCW 4.24.430. We hold that RCW 4.24.430 is subject to a void-for-vagueness challenge but that Troupe’s as-applied void-for-vagueness arguments fail.


¶ 10 "A statute is unconstitutionally vague if (1) ‘it fails to define the offense with sufficient precision that a person of ordinary intelligence can understand it,’ ["the definiteness requirement"] or (2) ‘it does not provide standards sufficiently specific to prevent arbitrary enforcement ["the enforcement requirement"].’ " Murray , 416 P.3d at 1229 (internal quotation marks omitted) (quoting State v. Duncalf , 177 Wash.2d 289, 296-97, 300 P.3d 352 (2013) ).

¶ 11 Under the definiteness requirement, "a statute is not sufficiently definite if it is framed in terms so vague that persons of ‘common intelligence’ must necessarily guess at its meaning and differ as to its application." Sullivan , 143 Wash.2d at 182, 19 P.3d 1012 (quoting City of Spokane v. Douglass , 115 Wash.2d 171, 179, 795 P.2d 693 (1990) ). In examining a statute, we look to the entire enactment’s context. City of Spokane , 115 Wash.2d at 180, 795 P.2d 693. A statute is not unconstitutionally vague merely because it fails to define some terms; we attribute to those terms their plain and ordinary dictionary definitions. City of Spokane , 115 Wash.2d at 180, 795 P.2d 693 ; Murray , 416 P.3d at 1229. And "[i]f a statute can be interpreted so as to have as a whole the required degree of specificity, then it can withstand a vagueness challenge despite its use of a term which, when considered in isolation, has no determinate meaning." Haley v. Med. Disciplinary Bd. , 117 Wash.2d 720, 741, 818 P.2d 1062 (1991).

¶ 12 Under the enforcement requirement, the due process clause forbids statutes that contain no standards and allow the decision-maker to subjectively decide what conduct the statute proscribes. City of Spokane , 115 Wash.2d at 181, 795 P.2d 693. The question is whether the terms are " ‘inherently subjective in the context in which they are used.’ " City of Spokane , 115 Wash.2d at 181, 795 P.2d 693 (quoting State v. Worrell , 111 Wash.2d 537, 544, 761 P.2d 56 (1988) ). Merely because a statute invites a subjective evaluation to determine whether it has been violated does not make the statute unconstitutional; the statute must invite an inordinate amount of discretion. City of Spokane , 115 Wash.2d at 181, 795 P.2d 693.

¶ 13 When evaluating a void-for-vagueness challenge, we must determine whether the challenged statute involves First Amendment rights. Sullivan , 143 Wash.2d at 184, 19 P.3d 1012. Unless the challenge implicates First Amendment interests, we evaluate the statute for vagueness " ‘as applied’ in light of the particular facts of the case." Sullivan , 143 Wash.2d at 184, 19 P.3d 1012 (quoting State v. Halstien , 122 Wash.2d 109, 117, 857 P.2d 270 (1993) ).


¶ 14 As a threshold issue, the State argues that RCW 4.24.430 is not subject to a void-for-vagueness challenge. We disagree.

¶ 15 Void-for-vagueness challenges may be brought against statutes that deprive one of a protected liberty or property3 interest within the meaning of procedural due process. See Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976) ; Seven Gables Corp. v. MGM/UA Entm’t Co. , 106 Wash.2d 1, 11, 721 P.2d 1 (1986). For procedural due process purposes, protected liberty interests include interests guaranteed by the United States Constitution. In re Pers. Restraint of McCarthy , 161 Wash.2d 234, 240, 164 P.3d 1283 (2007). Thus, void-for-vagueness challenges may be brought against civil or criminal statutes, depending on the interests implicated.4 See Boutilier v. Immigration & Naturalization Servs. , 387 U.S. 118, 123, 87 S.Ct. 1563, 18 L.Ed. 2d 661 (1967), cited in In re Det. of Danforth , 173 Wash.2d 59, 72, 264 P.3d 783 (2011).

¶ 16 The federal Supreme Court has explained that void for vagueness applies even where state action only indirectly threatens to inhibit a constitutionally derived right:

The degree of vagueness that the [U.S.] Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment. ...
... [P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights .

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed. 2d 362 (1982) (emphasis added).

¶ 17 Here, Troupe filed his PRP to vindicate constitutional rights allegedly violated by the conditions of his confinement. Indeed, PRPs are routinely brought by inmates to challenge the conditions of their...

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