[No. 74913-2. En Banc.]
Argued October 26, 2004. Decided May 26, 2005.
THE STATE OF WASHINGTON , Respondent , v. JOHN W. GRAYSON , Petitioner .
[1] Controlled Substances - Punishment - Special Drug Offender Sentencing Alternative - Review - Reviewability - Procedure. Although a trial court's decision to deny a criminal defendant's request for a drug offender sentencing alternative under RCW 9.94A.660 is not reviewable under RCW 9.94A.585 (1), the procedure employed by the court in denying the request may be reviewed by an appellate court.
[2] Criminal Law - Punishment - Sentence - Matters Considered - "Acknowledged" Facts - What Constitutes. For purposes of RCW 9.94A.530 (2), which provides that, in determining a sentence, a trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, "acknowledged" facts include all those facts presented or considered during sentencing that are not objected to by the parties.
[3] Criminal Law - Punishment - Sentence - Factual Basis - Evidentiary Hearing - Objection - Necessity. A criminal defendant is not entitled to an evidentiary hearing on a fact presented or considered during sentencing absent a timely and specific objection thereto.
[4] Criminal Law - Punishment - Sentence - Discretion of Court - In General. Within statutory and constitutional guidelines, judges may exercise their discretion to give fair and just sentences in criminal proceedings.
[5] Criminal Law - Punishment - Sentence - Factual Basis - Legislative Facts - Judicial Notice. A convicted offender is not entitled to a hearing before the trial court may consider a fact for sentencing purposes unless the fact is an adjudicative fact. An adjudicative fact generally is a fact that is in issue in the particular case. In a criminal case, an adjudicative fact generally relates to the facts of the crime and the defendant, and may involve social science or other research that directly affects the parties before the court. A legislative fact, by contrast, is an established truth, fact, or pronouncement that does not change from case to case and may be applied universally. A legislative fact can be an historical fact, a commercial practice, or a social standard. A sentencing court may take judicial notice of a legislative fact.[6] Criminal Law - Punishment - Sentence - Matters Considered - Statutory Provisions - Purposes. RCW 9.94A.530 (2), which provides that, in determining a sentence, a trial court may
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rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, was enacted to prevent ex parte contacts with sentencing judges, to prevent sua sponte investigation and research by sentencing judges, and to prevent sentencing based on speculative facts. Underlying the statutory procedure is the principle of due process of law. A sentencing court should consider only adjudicative evidence that the parties, in an adversarial context, have the opportunity to scrutinize, test, contradict, discredit, and correct.
[7] Controlled Substances - Punishment - Special Drug Offender Sentencing Alternative - Factual Basis - General Fact or Adjudicative Fact - Hearing - Necessity. In ruling on an eligible offender's request for a drug offender sentencing alternative under RCW 9.94A.660 , the trial court is not required to hold a hearing before it may consider general information about how, why, and for whom the program is designed, but a hearing is required before the court may consider a specific fact about the sentencing alternative program, the truth or falsity of which may determine whether the offender will be accepted into the program, if the offender raises a timely and specific objection thereto. Where the court determines that a sentencing alternative is unavailable to the offender because the program is underfunded, this fact is adjudicative, thereby warranting a hearing thereon, if the truth or falsity of the fact affects whether the offender may be admitted into the program.
[8] Criminal Law - Punishment - Sentence - Discretion of Court - Scope - Limitation. While trial judges have considerable discretion under the Sentencing Reform Act of 1981 (chapter 9.94A RCW), they are required to act within the strictures of the statute and to comport with the principles of due process of law.
[9] Controlled Substances - Punishment - Special Drug Offender Sentencing Alternative - Denial - Basis - Categorical Denial - Validity. A criminal defendant who is eligible for and requests a drug offender sentencing alternative under RCW 9.94A.660 is entitled to actual consideration of the request; the request may not be categorically denied. A trial court's categorical denial of a defendant's request for a drug offender sentencing alternative, or a refusal to consider the request for a class of offenders to which the defendant belongs, is prejudicial error for which the defendant is entitled to a new sentencing hearing.
BRIDGE , OWENS , and FAIRHURST , JJ., and IRELAND , J. Pro Tem., dissent by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: Prosecution for one count of unlawful possession of a controlled substance with intent to deliver.
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Superior Court: The Superior Court for Whatcom County, No. 01-1-00275-1, Michael F. Moynihan, J., on October 24, 2002, entered a judgment on a verdict of guilty. The court denied the defendant's request for a drug offender sentencing alternative and imposed a standard range sentence.
Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 119 Wn. App. 1042 (2003).
Supreme Court: Holding that the defendant's request for a drug offender sentencing alternative was denied without sufficient consideration by the trial court, the court remands the case to the trial court for a new sentencing hearing.
Jason B. Saunders (of Washington Appellate Project ), for petitioner.
David S. McEachran , Prosecuting Attorney, and Kimberly A. Thulin , Craig D. Chambers , and Hilary A. Thomas , Deputies, and Melinda B. Miller , for respondent.
¶1 CHAMBERS, J . - We are asked to determine whether John Grayson received sufficient consideration of his request for a drug offender sentencing alternative (DOSA) as part of his sentence for delivery of crack cocaine. Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, whether to give a DOSA is a decision left to the discretion of the trial judge, and our review of that exercise of discretion is limited. However, while the SRA vests broad discretion in the hands of the trial judge, the trial judge must still exercise this discretion in conformity with the law.
¶2 In this case, the trial judge failed to exercise any meaningful discretion in deciding whether a DOSA sen
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tence was appropriate for this defendant. While we cannot say that denying Grayson a DOSA was an abuse of discretion, we agree with Grayson that his request was entitled to actual consideration and, based at least on the record before us, it appears to have been categorically denied. Accordingly, we remand for a new sentencing hearing.
FACTS
¶3 In July 2000, an undercover Drug Enforcement Administration agent caught Grayson delivering 1.2 grams of cocaine to a confidential informant. Grayson subsequently pleaded guilty to one count of delivering cocaine in violation of former RCW 69.50.401 (a)(1) (1998). He also separately pleaded guilty to one count of possession of marijuana with intent to deliver.
¶4 Prior to sentencing, Grayson requested a DOSA. While the DOSA report is not in the record, the parties appear to agree that he was screened and found eligible. However, at sentencing, the prosecuting attorney argued that Grayson was not a good candidate for a DOSA because he was a career drug criminal with a long history of drug crimes and with additional pending charges. The record supports the prosecutor's argument. Grayson's extensive criminal history includes separate counts of possession with intent to deliver in 1992, 1994, 1999, and 2002, as well as several separate counts of possession in 1998 and 1999. When arrested on the charges currently before us, Grayson was on conditional release after being charged with delivering seven pounds of marijuana, worth about $12,000. Also while on release, Grayson committed several other violations of his conditions of release, including possession of an ounce of crack cocaine. Grayson had an offender score of 10, based on an extensive criminal history (or an offender score of 13 including pending charges). Grayson's standard range sentence on the current charge was 108 to 144 months.
¶5 After reviewing this history and Grayson's eligibility screening, the trial judge denied the motion for a DOSA.
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The judge did not dwell on the facts of Grayson's case in his oral ruling. Instead, he stated simply:
The motion for a DOSA . . . is going to be denied. And my main reason for denying [ the DOSA ] is because of the fact that the State no longer has money available to treat people who go through a DOSA program .
So I think in this case if I granted him a DOSA it would be merely to the effect of it cutting his sentence in half. I'm unwilling to do that for this purpose alone. There's no money available. He's not going to get any treatment; it's denied.
Report of Proceedings (RP) at 152-53 (emphasis added). Likely aware of the potential issue currently on review, the prosecutor interjected:
If I could ask for the record and for your consideration there's other important factors that could also serve to undercut the fact of the DOSA. No. 1, Mr. Holleman would testify -
THE COURT: I'm not going to give a DOSA, so that's it.
RP at 152-53. The trial judge then gave Grayson a standard range sentence of 138 months. During sentencing, Grayson did not protest the trial court's conclusion that the DOSA program lacked funds or request an evidentiary hearing. On review, he challenged for the first time the trial court's alleged failure to exercise discretion and reliance on a belief the DOSA program was underfunded. The Court of Appeals affirmed the sentence, and we granted review. State v. Grayson , noted at 152 Wn.2d 1011, 99 P.3d 896 (2004).
ANALYSIS
¶6 The DOSA program is an attempt to provide treatment for some offenders judged likely to benefit from it. It authorizes trial judges to give eligible nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an attempt to help them recover from their addictions. See RCW 9.94A.660 . Under a DOSA sentence, the defendant serves only about one-half of a standard range sentence in prison and receives substance abuse
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treatment while incarcerated. Afterward, he or she is released into closely monitored community supervision and treatment for the balance of the sentence. RCW 9.94A.660 (2). The offender has significant incentive to comply with the conditions of a DOSA, since failure may result in serving the remainder of the sentence in prison. RCW 9.94A.660 (2).
[1]¶7 As a general rule, the trial judge's decision whether to grant a DOSA is not reviewable. RCW 9.94A.585 (1); State v. Bramme , 115 Wn. App. 844 , 850, 64 P.3d 60 (2003). However, an offender may always challenge the procedure by which a sentence was imposed. State v. Herzog , 112 Wn.2d 419 , 423, 771 P.2d 739 (1989) (quoting State v. Ammons , 105 Wn.2d 175 , 183, 713 P.2d 719, 718 P.2d 796 (1986)). Primarily, Grayson claims that the trial court failed to exercise the discretion vested by statute by categorically refusing to seriously consider whether a DOSA sentence was appropriate.«1»While he does not squarely raise the issue, he alludes to the trial court's reliance on facts outside of the record in rendering his decision. We will turn briefly to that issue first.
WHAT FACTS MAY A JUDGE CONSIDER AT SENTENCING?
[2]¶8 It is clear that the trial court relied on extrajudicial information at the sentencing hearing. Constitutional and statutory procedures protect defendants from being sentenced on the basis of untested facts. See generally Blakely v. Washington , __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); RCW 9.94A.530 (2). Under the
«1»Grayson also raises two additional arguments. First he argues that the trial judge's decision violates separation of powers because the trial judge effectively made a sentencing policy decision. We decline to reach this argument since it was raised for the first time in a supplemental brief, and the State did not have a sufficient chance to respond to it. Second, Grayson argues that a 2003 SRA amendment should be applied retroactively to the calculation of his sentence. The amendment reduced the offender score for adult drug crimes from 3 points to 1 point and would have significantly lowered Grayson's offender score. Because Grayson substantially (and properly) concedes in his supplemental brief that his challenge is foreclosed by State v. Ross , 152 Wn.2d 220 , 95 P.3d 1225 (2004), we also decline to reach this issue.
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SRA, a trial judge may rely on facts that are admitted, proved, or acknowledged to determine "any sentence," including whether to sentence a defendant to a DOSA. RCW 9.94A.530 (2). "Acknowledged" facts include all those facts presented or considered during sentencing that are not objected to by the parties. See State v. Handley , 115 Wn.2d 275 , 282-83, 796 P.2d 1266 (1990).
[3]¶9 Under the SRA, where a defendant raises a timely and specific objection to sentencing facts, the court must either not consider the fact or hold an evidentiary hearing. RCW 9.94A.530 (2) (requiring defendant to object); see also State v. Mail , 121 Wn.2d 707 , 712, 854 P.2d 1042 (1993). Grayson did not object to the trial judge's statement concerning DOSA funding. If he had, then he might have been entitled to a hearing.«2»
¶10 We note that the SRA does not require our judges to make decisions in a factual vacuum. Our constitutional democracy is dependent upon an independent and informed judiciary. Our judiciary benefits from and relies upon judges who have studied and become learned in the law and whose personal experiences have taught them a practical understanding of the world we live in and how people live, work, and interact with the world around them.
[4]¶11 We do not believe the legislature intended that judges leave their knowledge and understanding of the world behind and enter the courtroom with blank minds. Judges are not expected to leave their common sense behind. Nor do we believe the legislature expected judges to hold hearings on whether fire is hot or water is wet. We prize judges for their knowledge, most of which is obtained outside of the courtroom. Within the statutory and constitutional guidelines, judges may exercise their discretion to give a fair and just sentence.
«2»Since the question before us is whether Grayson is entitled to a different type of sentence, rather than a sentence greater than the standard range, this case gives us no occasion to consider the potential impact of Blakely on the proper procedures used at sentencing. Cf . Blakely , 124 S. Ct. at 2536-37.
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[5]¶12 These statutory guidelines do not require judges to hold hearings on the laws of the universe, but only on adjudicative facts. "Adjudicative facts are usually those facts that are in issue in a particular case." Korematsu v. United States , 584 F. Supp. 1406, 1414 (N.D. Cal. 1984). In a criminal case, adjudicative facts generally relate to the facts of the crime and the defendant, but could also include social science and other research that directly affects the litigants before the court and are properly placed in contest by the parties.
¶13 But "[l]egislative facts are 'established truths, facts or pronouncements that do not change from case to case but [are applied] universally, while adjudicative facts are those developed in a particular case.' . . . [H]istorical facts, commercial practices and social standards are frequently noticed in the form of legislative facts." Korematsu , 584 F. Supp. at 1414 (second alteration in original) (quoting United States v. Gould , 536 F.2d 216, 220 (8th Cir. 1976)); see John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law , 134 U. PA. L. REV . 477, 482-84 (1986). A trial judge may properly take judicial notice of such facts. See ER 201.
[6]¶14 The purpose of RCW 9.94A.530 (2) is to prevent ex parte contact with the judge, sua sponte investigation and research of a judge, and sentencing based on speculative facts. Underlying this statutory procedure is the principle of due process. The court should only consider adjudicative evidence that the parties in an adversarial context have "the opportunity to scrutinize, test, contradict, discredit, and correct." George D. Marlow, From Black Robes to White Lab Coats: The Ethical Implications of a Judge's Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence During the Decision-Making Process , 72 ST. JOHN'S L. REV . 291, 319 (1998) (citing E.I. du Pont de Nemours & Co. v. Collins , 432 U.S. 46, 57, 97 S. Ct. 2229, 53 L. Ed. 2d 100 (1977)); see also DAVID BOERNER, SENTENCING IN WASHINGTON, A LEGAL ANALYSIS OF THE SENTENCING REFORM ACT OF 1981 § 6.25 (1985) (discussing when a trial judge abuses discretion under the SRA by relying on improper information).
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[7]¶15 General information about a sentencing alternative such as how, why, and for whom the program is designed is properly classified as legislative. It is the kind of information that helps a judge decide questions of law and policy and exercise discretion. Generally, a trial court may rely on this kind of information without holding a sentencing hearing. However, a specific fact about a sentencing alternative program, the truth or falsity of which may determine whether a defendant will receive the alternative sentence, may be adjudicative. When a judge determines that a program such as DOSA is unavailable to a defendant because the program is underfunded, the fact may become adjudicative if the truth or falsity affects the party before the court. Under such circumstances, a litigant may be entitled to a hearing on the issue.
¶16 The SRA also provides for the proper treatment of disputed adjudicative facts: "Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point." RCW 9.94A.530 (2). Here Grayson failed to request a hearing on the issue of whether or not there was adequate funding for DOSA. We recognize that Grayson did not have much time to formulate an objection. There may be a case where the failure to immediately object might not be fatal to a challenge to the sentence. This may be such a case because when the prosecutor suggested enriching the record with specific reasons that Grayson was not a suitable candidate for a DOSA, the judge vigorously interrupted mid-sentence with the statement, "I'm not going to give a DOSA, so that's it." RP at 153. Under these circumstances, a party may be relieved of the duty to object. But since we resolve this case on other grounds, we need not decide whether this would be such a case. The best practice is to promptly object. See Mail , 121 Wn.2d at 712 .
CATEGORICAL DECISIONS AND SENTENCE ALTERNATIVES
[8, 9]¶17 Next, we consider whether, as Grayson contends, the trial judge abused his discretion by categorically
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refusing to consider a DOSA sentence. Again, while trial judges have considerable discretion under the SRA, they are still required to act within its strictures and principles of due process of law. Mail , 121 Wn.2d at 712 . While no defendant is entitled to an exceptional sentence below the standard range, every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered. State v. Garcia-Martinez , 88 Wn. App. 322 , 330, 944 P.2d 1104 (1997). A trial court abuses discretion when "it refuses categorically to impose an exceptional sentence below the standard range under any circumstances." Id . at 330. The failure to consider an exceptional sentence is reversible error. Id . Similarly, where a defendant has requested a sentencing alternative authorized by statute, the categorical refusal to consider the sentence, or the refusal to consider it for a class of offenders, is effectively a failure to exercise discretion and is subject to reversal. Cf . Garcia-Martinez , 88 Wn. App. at 330 .
¶18 Although the trial judge declined to give a DOSA "mainly" because he believed there was inadequate funding to support the program, we recognize that the judge did not state that this was his "sole" reason. But he did not articulate any other reasons for denying the DOSA, and he specifically rejected the prosecution's suggestion that more reasons be placed on the record. Further, it is clear that the judge's belief that the DOSA program was underfunded was the primary reason the DOSA was denied. Considering all of the circumstances, the trial court categorically refused to consider a statutorily authorized sentencing alternative, and that is reversible error.
¶19 We recognize that there were ample other grounds to find that Grayson was not a good candidate for DOSA. Grayson was facing significant time (108 to 144 months) for this crime and still was scheduled to face at least another 100 months for a pending marijuana delivery charge - a charge involving a quantity of drugs so substantial as to
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make him ineligible for DOSA. Grayson had an extensive and exclusively drug-based criminal history. He continued to commit drug offenses even while on conditional release from other drug offenses. While we reverse the sentence on procedural grounds, we leave it in the able hands of the trial judge on remand to consider whether Grayson is a suitable candidate.
CONCLUSION
¶20 We reverse on the limited grounds that the trial judge did not appear to meaningfully consider whether a sentencing alternative was appropriate. But we do not fault the judge at all for having background knowledge about DOSA. If judges are to consider meaningful alternatives to prison sentences, they should be knowledgeable about the programs, their effectiveness, and whether the offender is a good candidate for the program. Again, the purpose of DOSA is to provide meaningful treatment and rehabilitation incentives for those convicted of drug crimes, when the trial judge concludes it would be in the best interests of the individual and the community. See RCW 9.94A.660 . But trial judges do not rule in a vacuum, and we do not require trial courts to ignore funding realities. Cf . Hillis v. Dep't of Ecology , 131 Wn.2d 373 , 389, 932 P.2d 139 (1997) (court will not order expenditures to meet statutory requirements legislature has chosen not to fund).
¶21 Accordingly, we vacate Grayson's sentence and remand for further proceedings consistent with this opinion.
ALEXANDER , C.J ., and C. JOHNSON , MADSEN , and SANDERS , JJ ., concur .
¶22 BRIDGE, J . (dissenting) - The majority purports to climb into the mind of the trial judge and then castigate him for thoughts and intentions he is perceived to have had. The record cannot sustain this mind-reading exercise, nor does our deference to the trial court's discretion warrant it. Succinctly put, I believe that the trial court properly
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exercised its discretion when it concluded that John Grayson and the community would not benefit from a drug offender sentencing alternative (DOSA), and I would affirm the Court of Appeals decision in this case.
¶23 The majority concludes that the trial court erred by categorically refusing to consider a DOSA. Majority at 342. But in ordering a DOSA eligibility screening for Grayson, the trial judge clearly indicated that he not only did not refuse to consider the alternative sentence but was willing to consider such an alternative if appropriate in the circumstances. Clerk's Papers (CP) at 15. More importantly, while systemic funding problems were the reason why the trial judge denied the DOSA in this case, they were not the sole reason. Verbatim Report of Proceedings (RP) at 152. The trial judge did not assert that he would deny DOSA in every case, but instead spoke to the specific impact of the program's ineffectiveness on this case. RP at 152 ("[I]n this case if I granted [Grayson] a DOSA it would be merely to the effect of it cutting his sentence in half."). Therefore, I cannot agree with the majority's conclusion that the trial judge categorically refused to exercise his discretion.
¶24 Moreover, it is clear that the trial judge acted within his discretion in denying the DOSA here. Once a defendant has been deemed eligible for DOSA, as Grayson was, the court must consider whether "the offender and the community will benefit from the use of the [sentencing] alternative." RCW 9.94A.660 (2). The trial judge's evaluation of the practical effect of granting a DOSA in this case was relevant to the specific question presented by the DOSA statute. And nothing in the DOSA statute prevents the trial judge from taking the program's effectiveness into account. See RCW 9.94A.660 ; see also State v. Mail , 121 Wn.2d 707 , 711, 854 P.2d 1042 (1993). The trial judge was also aware that Grayson had a significant history of drug convictions, which included several counts of possession and possession with intent to deliver in 1992, 1994, 1998, 1999, and 2002. CP at 6. Most significantly, the trial judge was aware of other pending drug charges, one of which involved such a large
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quantity of marijuana that Grayson could not qualify for DOSA in that case. RP at 153-54 (charged with delivering seven pounds of marijuana, worth about $12,000). In addition, Grayson committed several other violations of his conditions of release, id ., and based on his criminal history and concurrent charges, his offender score in this case was 13. CP at 6.
¶25 The record does not sustain the majority's conclusion that the trial judge categorically refused to exercise his discretion. Instead the trial judge clearly answered the question posed by the DOSA statute: Would Grayson and the community benefit if the court were to grant him a DOSA sentence? The trial judge acted within his discretion when he concluded that the answer to this question was "no."
¶26 I dissent.
OWENS and FAIRHURST , JJ ., and IRELAND , J. Pro Tem ., concur with BRIDGE , J . No. 74986-8. En Banc.]
Argued November 10, 2004. Decided May 26, 2005.
REBECCA L. TROXELL , Respondent , v. RAINIER PUBLIC SCHOOL DISTRICT NO . 307, Petitioner .
[1] Statutes - Construction - Review - Standard of Review. An issue of statutory interpretation is reviewed by an appellate court de novo.
[2] Statutes - Construction - Legislative Intent - Statutory Language - Avoiding Absurdity. A court's duty in interpreting a statute is to discern and implement the legislature's intent. The court must take as its starting point the statute's plain language and ordinary meaning. An interpretation that produces absurd consequences must be rejected, since such results would belie the legislature's intent.
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[3] Municipal Corporations - Torts - Nonclaim Statutes - Purposes. The purpose of the claim filing requirement of RCW 4.96.020 (4) is to establish a period of time for government defendants to investigate claims and to settle those claims where possible.
[4] Municipal Corporations - Torts - Nonclaim Statutes - Compliance - Degree of Compliance - Strict Compliance - Necessity. A tort action may not be maintained against a municipality absent strict compliance with RCW 4.96.020 (4), which prohibits the commencement of a tort action against a local governmental entity until 60 days have elapsed after the claim was first presented to and filed with the governing body thereof.
[5] Municipal Corporations - Torts - Nonclaim Statutes - Timeliness of Claim - Included and Excluded Dates. Under RCW 4.96.020 (4), which prohibits the commencement of a tort action against a local governmental entity until 60 days have elapsed after the claim was first presented to and filed with the governing body thereof, 60 full calendar days must elapse after the filing of a claim before a tort action may be commenced. The statute is not satisfied if only 59 full calendar days intervene between the day the notice is filed and the day the legal action is commenced, i.e., the statute is not satisfied if the action is filed on the 60th day after notice of the claim was filed. For purposes of the statute, a "day" is a 24-hour period.
[6] Limitation of Actions - Waiting Period - Calculation - Exclusion of First and Last Days. Where a statute provides that a certain action shall not take place until after the expiration of a specified number of days from a stated date, both the first day and the last day must be excluded so that the full number of days will be allowed.
[7] Limitation of Actions - Waiting Period - Calculation - Court Rule - Effect. CR 6(a), which provides that the computation of a prescribed time period does not include the day of the event or occurrence that commences the time period and includes the last day of the period unless the last day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday, applies to the computation of a litigation related deadline or limitation period but does not apply to the computation of a waiting period. The purpose of the rule is to ensure that a party with a duty to act within a prescribed time period is accorded the full number of days specified in the court rule, court order, or applicable statute. In contrast, because a waiting period does not require a party to act but, rather, to refrain from acting, application of the end day provision of CR 6(a) to the computation of a legislatively prescribed waiting period would serve no practical purpose and would unnecessarily expand the period of time that the legislature deemed appropriate for refraining from acting.
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CHAMBERS , C. JOHNSON , and SANDERS , JJ., and IRELAND , J. Pro Tem., dissent by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.
Nature of Action: Action for damages against a public school district for injuries sustained by the plaintiff in a slip and fall on school property.
Superior Court: The Superior Court for Thurston County, No. 02-2-00239-8, Richard D. Hicks, J., on June 26, 2002, entered a summary judgment in favor of the school district.
Court of Appeals: The court reversed the judgment at 119 Wn. App. 361 (2003), holding that the plaintiff complied with statutory claim filing requirements by commencing the action on the 60th day after filing the claim with the school district.
Supreme Court: Holding that the statutory claim filing requirement was not satisfied where only 59 days elapsed between the day notice of the claim was filed with the school district and the day the action was filed, the court reverses the decision of the Court of Appeals and reinstates the judgment.
H. Andrew Saller, Jr. (of Vandeberg Johnson & Gandara ) and Neli T. Espe , for petitioner.
Mary Elizabeth Van Gemert ; Robert E. Sabido (of Cosgrave Vergeer Kester, L.L.P. ) ( Thomas M. Christ , of counsel ); and Michael L. Ritchey of Thompson & Ritchey, L.L.P., of counsel, for respondent.
¶1 OWENS, J . - RCW 4.96.020 (4) forbids the commencement of a tort action against a local government defendant "until sixty days have elapsed after" the plaintiff files a claim notice with the local government entity. We must
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determine whether a plaintiff strictly complies with the statutorily prescribed "sixty-day period" if only 59 full calendar days intervene between the day the notice is filed and the day the legal action is commenced. Consistent with the general rule applicable to the computation of waiting periods, we hold that, by its plain language, RCW 4.96.020 (4) requires that 60 calendar days must intercede between the dates on which a plaintiff files a tort claim notice and commences a lawsuit. Because the Court of Appeals erred in concluding that a complaint could be filed on the 60th day after the filing of the notice of claim, we reverse the Court of Appeals and affirm the trial court's summary dismissal of plaintiff Rebecca Troxell's suit against the Rainier Public School District #307 (the District).
FACTS
¶2 At 3:35 P.M . on Monday, December 10, 2001, Troxell served on the District a tort claim notice pursuant to RCW 4.96.020 . Troxell alleged in the notice that, on December 17, 1998, she fell in the unlighted parking lot at Rainier High School, injuring her left leg. The statute prescribes a waiting period between the filing of a notice of claim and the commencement of a lawsuit: "No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period ." RCW 4.96.020 (4) (emphasis added). Troxell commenced her action against the District on Friday, February 8, 2002, by filing a complaint at 11:29 A.M . in Thurston County Superior Court.«1»
¶3 The District moved for summary judgment in April 2002, arguing that Troxell had commenced her action
«1»"[A] civil action is commenced by service of a copy of a summons together with a copy of a complaint . . . or by filing a complaint." CR 3(a).
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against the District prior to the expiration of the statutorily imposed 60-day waiting period. The trial court granted the District's motion on June 6, 2002. The court determined that there was "no genuine issue as to the material fact that Plaintiff commenced this lawsuit on the 60th day after the filing of the Tort Claim Notice and . . . that because Plaintiff did not comply with RCW 4.96.020 the Defendant [was] entitled to judgment as a matter of law." Clerk's Papers at 68-69. Because the statute of limitations had run,«2»the trial court dismissed Troxell's complaint with prejudice.
¶4 Troxell appealed, but Court of Appeals Commissioner Eric B. Schmidt affirmed the trial court's summary dismissal of the suit, stating that "[t]he first day occurring after 60 days have elapsed is the sixty-first day, not the sixtieth day, following the filing of the tort claim notice." Ruling Affirming J. (Mar. 3, 2003) at 5. The Court of Appeals, however, granted Troxell's motion to modify Commissioner Schmidt's ruling and, in a published opinion, reversed the decisions of the trial court and Commissioner Schmidt. Troxell v. Rainier Pub. Sch. Dist. No. 307 , 119 Wn. App. 361 , 366, 80 P.3d 623 (2003). Although the Court of Appeals acknowledged that strict compliance with "the sixty-day period" of RCW 4.96.020 (4) was required, the court concluded that the mandatory 60-day waiting period was satisfied by the passage of 59 calendar days between the filing dates of Troxell's claim notice and complaint. In holding that suit could be commenced at any time on the 60th calendar day after the filing date of the claim notice, the Court of Appeals necessarily determined that strict compliance required neither the passage of 60 calendar days nor the passage of 60 24-hour periods.
«2»The last day of the original three-year statute of limitations period applicable to Troxell's claim was Monday, December 17, 2001. As required under RCW 4.96.020 (4), the limitations period was "tolled during the sixty-day period." We recently stated that the tolling provision of RCW 4.96.020 (4) "adds 60 days to the end of the otherwise applicable statute of limitations." Castro v. Stanwood Sch. Dist. No. 401 , 151 Wn.2d 221 , 226, 86 P.3d 1166 (2004). Consequently, the last day of Troxell's extended statute of limitations period was Friday, February 15, 2002.
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¶5 We granted the District's petition for review.
ISSUE
¶6 Under RCW 4.96.020 (4), which forbids the commencement of a tort action "until sixty days have elapsed after" the filing of the notice of claim with the "local governmental entity," does a plaintiff strictly comply with the required "sixty-day period," where only 59 full calendar days intervene between the day notice is filed and the day suit is commenced?
ANALYSIS
[1, 2]¶7 Standard of Review . Appellate review of a trial court's decision on summary judgment is de novo. Castro v. Stanwood Sch. Dist. No. 401 , 151 Wn.2d 221 , 224, 86 P.3d 1166 (2004). A motion for summary judgment is properly granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). Because the material facts in this case - the dates on which Troxell filed her notice and her complaint - have never been disputed, our review of the trial court's summary dismissal of Troxell's complaint turns solely on the proper interpretation of RCW 4.96.020 (4). As with all questions of law, the interpretation of a statute is reviewed de novo. Castro , 151 Wn.2d at 224 . When asked to resolve a question of statutory interpretation, this court's duty is "to discern and implement the intent of the legislature." State v. J.P ., 149 Wn.2d 444 , 450, 69 P.3d 318 (2003). The court must take as its "starting point . . . 'the statute's plain language and ordinary meaning.' " Id . (quoting Nat'l Elec. Contractors Ass'n v. Riveland , 138 Wn.2d 9 , 19, 978 P.2d 481 (1999)). An interpretation that produces "absurd consequences" must be rejected, since such results would belie legislative intent. State v. Vela , 100 Wn.2d 636 , 641, 673 P.2d 185 (1983).
[3, 4]¶8 Computation of the Waiting Period Required under RCW 4.96.020 (4) . RCW 4.96.020 (4) forbids the commencement of a tort action "until sixty days have elapsed after" the filing of the notice of claim with the "local
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governmental entity." As we observed in Medina v. Public Utility District No. 1 of Benton County , 147 Wn.2d 303 , 53 P.3d 993 (2002), "[t]he purpose of RCW 4.96.020 (4) is to establish a period of time for government defendants to investigate claims and settle those claims where possible." Id . at 317. In Medina , we held that, because "the legislature adopted a 60-day waiting period" to effect that purpose, plaintiffs must strictly comply with the statutory time requirement. Id . at 316-18.
¶9 Troxell contends that by filing her complaint on February 8, 2002, she strictly complied with the 60-day requirement. Troxell maintains that the "60-day clock" started ticking when she filed her tort claim notice (at 3:35 P.M . on December 10, 2001), that the first day of the waiting period was December 10 to 11, and that the 60th day was therefore February 7 to 8, 2002. Suppl. Br. of Resp't at 4. Troxell claims that, even though the clock started ticking when she served her notice at 3:35 P.M . on December 11, day 1 of the waiting period elapsed, not at 3:35 P.M ., 24 hours later, but at 12:00 A.M . on December 12; in fact, by Troxell's reckoning, one day elapses in the period of time from 11:59:59 P.M . until 12:00:00 A.M . Asserting that day 60 elapses the moment day 60 arrives, Troxell essentially argues that strict compliance with the statutory 60-day waiting period requires the passage of 59 calendar days and any portion of day 60.
¶10 The Court of Appeals agreed with Troxell that "[s]ixty days elapsed on the 60th day, which [was] February 8, 2002," but the court and Troxell offered conflicting explanations of their counting methods. 119 Wn. App. at 366 . Troxell stated "that 60 days . . . elapsed on the 60th day, not counting the starting date ." Suppl. Br. of Resp't at 1 (emphasis added). While Troxell thus excluded the starting date and counted the date on which suit was commenced, the Court of Appeals purported to "calculate the time elapsed to include the date of the filing of the notice and
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exclude the last date ."«3»Although Troxell and the Court of Appeals do not clearly agree on which filing date is to be included, they do have in common the need to count at least one of the two dates toward the 60-day waiting period, for if neither date were counted, they would be left with no more than the 59 intervening days.
¶11 In contrast, the District interprets the statute as mandating that a waiting period of 60 full calendar days must intervene between the filing of the tort claim notice and the commencement of suit; in other words, neither the filing date of the claim notice nor the date on which suit is commenced may be counted toward the 60-day period. Specifically, the District asserts that December 10, 2001, was excluded, contributing no time to the waiting period; that the 60 days in the waiting period included December 11, 2001, and ran through February 8, 2002; and that strict compliance with the statute thus precluded Troxell from filing suit prior to February 9, 2002.
[5]¶12 At issue, then, is whether the statute imposes a waiting period of 60 full days, as the District contends, or may be satisfied by 59 days and some fraction of a 60th day, as Troxell maintains. We hold that the plain language of RCW 4.96.020 (4) requires a waiting period of 60 full calendar days between the filing of the claim notice and the commencement of legal action. A day is commonly defined as the 24-hour period beginning at midnight. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 578 (2002) (defining "day" as a " CIVIL DAY ," " among most modern nations : the mean solar day of 24 hours beginning at mean midnight"); id . at 316 (defining "calendar day" as "a civil day: the time from midnight to midnight"). Providing that suit may not be commenced "until sixty days have elapsed," RCW 4.96.020 (4) requires that 60 calendar days must "pass away" or "expire" before legal action is com
«3»119 Wn. App. at 366 (emphasis added). It is unclear why the Court of Appeals, if it were indeed counting the first date (December 10, 2001) and excluding the last (February 8, 2002), would have referred to February 8 as day 60, rather than day 61.
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menced. See id . at 729 (defining the verb "elapse" as "to . . . PASS - usu. used of time" and the noun "elapse" as " of time : PASSAGE, EXPIRATION "); see also THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 332 (6th ed. 1976) (defining "elapse" as "(Of time) pass away"); WEBSTER'S , supra , at 1650 (defining "pass away" as "to go out of existence: come to an end"). In sum, because strict compliance with the plain language of the statute requires that a period of 60 calendar days must come to an end after the claim notice is filed, the waiting period ran from December 11, 2001, through February 8, 2002, making the commencement of a lawsuit permissible, at the earliest, on February 9, the day after Troxell filed her complaint.«4»
[6]¶13 Our plain language analysis comports with the general rule that, "[w]here it is provided that a certain result shall not accrue until after the expiration of a given number of days from a stated date, then both the first and last days must be excluded, so that the full number of days will be allowed." 74 AM. JUR. 2D Time § 15 (2001 & Supp. 2004) (emphasis added) (citing Owens v. Graetzel , 146 Md. 361, 373, 126 A. 224 (1924) (holding that, where mortgage sale may occur only after trustee gives at least three weeks' notice by newspaper advertisement, " 'at least three weeks' means 'three clear weeks,' and that in determining what space of time constitutes three clear weeks, the date of the first publication of the advertisement and the day of sale shall both be excluded"); Heuck v. State ex rel. Mack , 127 Ohio St. 247, 250, 253, 187 N.E. 869 (1933) (concluding that, where constitution provided that " '[n]o law passed by
«4»We also note that, by its plain language, the statute does not permit a computation of 60 24-hour periods that would begin precisely when the claim notice is filed - a method of computation that, in any case, would have been no more helpful to Troxell than the requirement of 60 intervening calendar days. To view the waiting period as 60 24-hour periods, we would not only have to ignore the common understanding of the word "day," but we would have to impute to the legislature an intent to draft a statute with potentially "absurd consequences." Vela , 100 Wn.2d at 641 . Where suit was commenced on the 60th calendar day after the filing of the claim notice, parties would have to attend to the precise hour, minute, and second of the filing of the claim notice and the commencement of the suit. See 74 AM. JUR. 2D Time § 13 n.1 (2001) (noting that requiring a computation based on the precise timing of an act "would produce endless confusion and strife, and would prove impolitic if not wholly impracticable").
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the general assembly shall go into effect until ninety days after it shall have been filed by the governor,' " provision meant "ninety full days" and that, consequently, an act filed on October 3, 1932, would not go into effect "until at least the first moment of January 2, 1933")). A very clear application of this rule is likewise reflected in State v. Smith , 557 So. 2d 393 (La. Ct. App. 1990). There, the Louisiana appellate court concluded that, where the defendant was convicted on May 19, 1987, and sentenced on May 22, 1987, the trial court violated the statutory requirement that " 'at least three days shall elapse between conviction and sentence.' " Id . at 400 (citing, inter alia, State v. Johnson , 275 So. 2d 405 (La. 1973)); see Carson v. McDowell , 203 Kan. 40, 41-42, 452 P.2d 828 (1969) (holding that, where zoning ordinance required that " 'at least twenty (20) days shall elapse between the date of such publication and the date set for hearing,' " hearing on January 10, 1966, violated ordinance, since only 19 days had elapsed since publication on December 21, 1965); see also In re Lancaster City Ordinance No. 55-1952 , 383 Pa. 471, 472, 473, 119 A.2d 307 (1956) (determining that, in requiring that " '[ a ] t least three days shall intervene ,' " legislature meant "three days must elapse between").
¶14 Our interpretation of RCW 4.96.020 (4) finds further support in prior Washington cases. First, references in various cases establish that the day on which the tort claim notice was filed was not counted toward the 60-day waiting period but, rather, that the first day following the filing of the claim notice was deemed day 1. See , e.g ., Hintz v. Kitsap County , 92 Wn. App. 10 , 12, 15, 960 P.2d 946 (1998) (where notice of claim was filed on August 24, 1995, and suit commenced "57 days later" on October 20, day 1 of 60-day period was August 25); Sievers v. City of Mountlake Terrace , 97 Wn. App. 181 , 182, 184, 983 P.2d 1127 (1999) (where claim notice was filed on August 19, 1997, and October 17 and 18 were identified as "day 59" and "the 60th day," day 1 was August 20). Second, Washington courts have often described the waiting period as a period of 60 intervening
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days. See Hall v. Niemer , 97 Wn.2d 574 , 584 n.4, 649 P.2d 98 (1982) (referring to "the 60-day buffer period between filing a claim and suit" (emphasis added)); see also Daggs v. City of Seattle , 110 Wn.2d 49 , 57, 750 P.2d 626 (1988) (quoting Hall ); Medina , 147 Wn.2d at 327 (Chambers, J., dissenting) (citing Daggs and recognizing that "the short 60-day buffer period between filing a claim and suit is reasonably related to achieving negotiated settlements" (emphasis added)). Third, and most significantly, we may infer that the Medina court viewed the waiting period as the 60 calendar days intervening between the filing dates of the claim notice and complaint. The Medina opinion established that the claim notice was filed on Wednesday, January 7, 1998; that the final two days of the 60-day waiting period were a Saturday and Sunday, March 7 and 8; and that the plaintiff filed the complaint four days early on Thursday, March 5. 147 Wn.2d at 307 , 308, 322. Consistent with those facts, the 60-day period at issue in Medina ran from January 8 through March 8, and the earliest permissible date for filing the complaint was the 61st day, Monday, March 9, 1998. Id . at 308 n.2.
¶15 Additionally, our interpretation of the statutory waiting period as 60 full calendar days is consistent with the principles expressed in our recent, unanimous decision in Castro , 151 Wn.2d 221 . There, we were asked to consider how the claim notice statute's tolling provision worked. We rejected the school districts' contention that, where a statute of limitations expires during the 60-day waiting period, the limitations period is simply tolled until the expiration of the waiting period, thus requiring the filing of the complaint the day after the waiting period ends. Rather, we concluded that the legislature intended to protect a plaintiff's total allotment of days in the three-year statute of limitations period; consequently, we agreed with the plaintiffs' position that, because the number of days lost due to the 60-day waiting period had to be preserved, the tolling provision "add[ed] 60 days " to the original limitations period. Id . at 226 (emphasis added).
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¶16 In support of her view that the waiting period must be 59 intervening days, Troxell applies a narrow reading of Castro to an extraordinary circumstance, the filing of the notice of claim on the last day of the original statute of limitations - a circumstance not at issue here, where Troxell filed her notice a week before the limitations period expired, or in Castro , where the hypothetical was neither raised by the parties nor contemplated by the court. Applying our last sentence in Castro - "Essentially, the provision adds 60 days to the end of the otherwise applicable statute of limitations" - Troxell observes that the hypothetical claimant's limitations period would expire on day 60 of the waiting period. Id . We acknowledge that a rigid "add-60" rule would result in the running of the statute of limitations against any litigant who waited until the last day of the original statute of limitations period to file a claim notice (unless the 60th day thereafter were a Saturday, Sunday, or legal holiday), but the imputation that our Castro opinion put into place such a rule - one that would foreclose a claimant's suit on statute of limitations grounds, despite the claimant's timely filing of the claim notice - is contrary to the entire thrust of our decision in Castro .«5»Because our Castro decision was based on our prior holding in Medina that the tolling provision "does not violate due process protections," our Castro decision cannot fairly be construed to deprive a litigant of the full limitations period. 147 Wn.2d at 315 . We view our prior jurisprudence as plainly protecting a plaintiff's entitlement to the full statutorily mandated limitations period; just as the partial day on which the claim notice is filed cannot be used to reduce the 60-day waiting period mandated by the legislature, it cannot be regarded as a full day of the limitations period. In sum, we decline to adopt Troxell's narrow reading of Castro as a basis for reducing the 60-day waiting period to 59 days.
«5»In a decision predating Castro , the Court of Appeals implied in dicta that a plaintiff must file the claim notice one day prior to the running of the statute of limitations. See Sievers , 97 Wn. App. at 184 (observing that, where the last day of the original limitations period was August 20, 1997, and the claimant filed her notice on August 19, 1997, she had "waited until the last possible day to file her notice of claim with the City before the running of the limitation period").
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While in Castro we sought to ensure that the waiting period did not reduce a plaintiff's limitations period , in the present case we are equally obliged to ensure that an unjustifiably narrow application of the statute's tolling provision does not indirectly impair the legislature's requirement of a 60-day waiting period .
[7]¶17 Finally, while we find some additional support in CR 6(a) for our interpretation of RCW 4.96.020 (4), we nevertheless must agree with Troxell that the rule is not dispositive here. The rule provides as follows:
In computing any period of time prescribed or allowed by these rules, by the local rules of any superior court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday.
CR 6(a); cf . RCW 1.12.040 (providing that "[t]he time within which an act is to be done . . . shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday"). The rule plainly applies to the computation of a litigation related deadline or limitations period (that is, as described in RCW 1.12.040 , a period of "time within which an act is to be done"), and it ensures that the party with the duty to act within the allotted time period is accorded the full number of days specified in the court rule, court order, or applicable statute. For example, CR 12(a)(1) provides that "[a] defendant shall serve his answer within . . . 20 days, exclusive of the day of service, after the service of the summons and complaint upon him pursuant to rule 4." The explicit exclusion of the day of service is consistent with CR 6(a)'s exclusion of "the day of the act, event, or default from which the designated period of time begins to run." CR 6(a) thus allows the defendant 20 full calendar days for serving the answer - not 19 days and some fraction of either the day the summons
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and complaint were served or the 20th day thereafter. See Corliss v. McFerran , 115 Wash. 56 , 196 P. 583 (1921).
¶18 While CR 6(a)'s exclusion of the date from which the time period runs, along with its preservation of the full period of time allotted, is consistent with our plain language analysis of RCW 4.96.020 (4), the remainder of CR 6(a) is indisputably inapplicable to the computation of the 60-day waiting period. Were CR 6(a) applied, the second sentence of the rule would mandate that the last day of the 60-day waiting period "shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday ." (Emphasis added.) This method of computing the final day of a time period has never been applied to the computation of the 60-day waiting period. Where the last day of the waiting period has fallen on a Saturday or Sunday, the following Monday has not been designated day 60 of the waiting period, an extension that CR 6(a) expressly requires. For example, in Sievers , the last day of the 60-day period was Saturday, October 18, 1997. Had CR 6(a) been applied, the waiting period would have been extended through Monday, October 20, but the Sievers court made no such extension, stating instead that, for purposes of filing suit, Monday, October 20, was "a date in compliance with the 60-day waiting rule mandated by RCW 4.96.020 (4)." 97 Wn. App. at 184 . Likewise, in Medina , having identified Sunday, March 8, 1998, as the final day of the 60-day period, this court did not suggest that, under CR 6(a), the waiting period would have to be extended through Monday, March 9, but indicated instead that legal action was permissible on that date. 147 Wn.2d at 307 , 308, 322.
¶19 In sum, while CR 6(a) is consistent with our determination that RCW 4.96.020 (4) requires the exclusion of the filing date for the claim notice, the rule's prescription for defining the final day of a time period has never been applied to compute the final day of the 60-day waiting period, nor should it ever be, given the obvious distinction between a limitations period and a waiting period. Because
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deadlines or limitations periods set forth in court rules, court orders, or applicable statutes generally require parties to take legal action, CR 6(a) ensures that the last date for taking such action will not fall on a Saturday, Sunday, or legal holiday. In contrast, because a waiting period does not require parties to act but, rather, to refrain from acting, the application of the second sentence of CR 6(a) to the computation of a legislatively defined waiting period would serve no practical purpose and would expand unnecessarily the period of time that the legislature had deemed appropriate for refraining from action.
¶20 We also reject the suggestion that Pederson v. Moser , 99 Wn.2d 456 , 662 P.2d 866 (1983), controls the computation of the waiting period in RCW 4.96.020 (4). At issue in Pederson was a statute prescribing a 20-day waiting period between the service of a recall demand and the preparation of a ballot synopsis: "The officer with whom the charge is filed shall serve a copy of the charge upon the officer whose recall is demanded not less than twenty days prior to formulation of the ballot synopsis."«6»Although syntactically different from RCW 4.96.020 (4), former RCW 29.82.015 (1976) likewise prescribed a waiting period between two events; it provided that the ballot synopsis could not be formulated until at least 20 days had passed following the service of the recall demand on the officer whose recall had been demanded. The recall demand at issue in Pederson was served late on the evening of December 14, 1982, and the county prosecutor issued the ballot synopsis on the morning of January 3, 1983. Id . at 462. While the Pederson court held that the 20-day waiting period had been satisfied despite the intervention of only 19 full calendar days between the service of the recall demand and the preparation of the ballot synopsis, the court based its holding on grounds that we find inapplicable to the present case. First, the Pederson court simply quoted CR 6(a) and, with no discussion of the rule's applicability, purported to rely on it,
«6»Former RCW 29.82.015 (1976). For the 1984 amendment deleting the 20-day waiting period, see LAWS OF 1984, ch. 170, § 2.
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despite the rule's inapplicability to the computation of a waiting period. Second, the Pederson court's "hold[ing] that fractions of days were properly ignored in the present case" is at best confusing, since the court necessarily counted as an entire day either the fractional day on which the recall demand was served or the fractional day on which the ballot synopsis was formulated. Id . at 463. Finally, rather than requiring strict compliance with the waiting period, as has been mandated for RCW 4.96.020 (4), see Medina , 147 Wn.2d at 316 -18, the Pederson court applied a substantial compliance standard, observing that, "[e]ven if the 20-day waiting period established by RCW 29.82.015 was not complied with ," Pederson's failure to show that the "technical noncompliance" had harmed him precluded issuance of an injunction or stay. 99 Wn.2d at 463 (emphasis added). In sum, the Pederson court's analysis of the waiting period prescribed in former RCW 29.82.015 furnishes no clear precedent for our interpretation of RCW 4.96.020 (4).
CONCLUSION
¶21 RCW 4.96.020 (4) forbids the commencement of a tort action "until sixty days have elapsed after" the plaintiff files a notice of claim with the "local governmental entity." Strict compliance with the waiting period is required. Medina , 147 Wn.2d at 316 -18. We decline to interpret the statute's plain references to "sixty days" and "the sixty-day period" as permitting a period of time less than 60 calendar days. RCW 4.96.020 (4). In light of the relevant dictionary definitions, the general rule derived from decisions in other jurisdictions directly addressing the computation of a statutorily imposed waiting period, and the treatment of the waiting period in several Washington cases, including Medina , we hold that the legislature intended that 60 calendar days must intervene between the filing dates of the claim notice and the commencement of suit. We reverse
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the Court of Appeals and affirm the trial court's summary dismissal of Troxell's suit.
ALEXANDER, C.J., and MADSEN, BRIDGE, and FAIRHURST, JJ., concur.
¶22 CHAMBERS, J. (dissenting) - If I were ill and a physician prescribed antibiotics, giving me one pill on December 10, and telling me to take another after one day elapsed, I would take the second pill on December 11. My learned colleagues of the majority, however, reasoning that for a day to elapse a full day must intervene, would not take their second pill until December 12. I must confess some concern for their well being. Because the majority's interpretation would frustrate the purpose of the statute it interprets; would lead to anomalous results; is inconsistent with previous judicial interpretations, common parlance, and dictionary definitions; I dissent.
¶23 We are asked to interpret RCW 4.96.020 (4). It has two subparts. One subpart sets the time that a government entity must be given to investigate and settle a claim, and the other tolls the statute of limitations during that time. RCW 4.96.020 (4) reads:
No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.
The court's fundamental objective is to ascertain the legislature's intent in enacting a statute. State v. J.M. , 144 Wn.2d 472 , 480, 28 P.3d 720 (2001). If the meaning of the statute is plain on its face, then the court must give effect to that plain meaning. Dep't of Ecology v. Campbell & Gwinn , L.L.C., 146 Wn.2d 1 , 9-10, 43 P.3d 4 (2002). If, however, the meaning is unclear, the court must examine the statutory scheme as a whole, as well as related statutes to determine what the legislature intended. Id . at 11. Because this case
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involves the method of computing time in different types of context, we must look at the statute in the context of the purposes of the timing requirements at issue.
¶24 Most of the time limits we confront are limits within which something must be accomplished. For example, a notice of appeal must be filed within 30 days. See RAP 5.2(a). Statutes of limitation are examples of time limits within which something must be accomplished. In the instant case, RCW 4.16.080 provides:
The following actions shall be commenced within three years:
. . . .
(2) An action . . . for any other injury to the person or rights of another not hereinafter enumerated. . . .
RCW 4.16.080 (emphasis added).
¶25 Where the action is against a government entity, there is a requirement that a notice be filed with the government entity 60 days before commencing an action against that governmental body. The first subpart of RCW 4.96.020 (4) thus presents us with a different type of time limit: one which prohibits action from being taken until a period of time has passed.«7»The majority concludes that, although generally action must be taken within a time limit, the legislature intended that action be taken outside of the notice waiting period. The majority's interpretation would frustrate the intent of the act because the statute of limitations would lapse before the 60 day waiting period expired. This is so because the majority interprets "elapse" to require that, not counting the day the notice is filed, a full 60 days must begin and end and filing cannot take place until the 61st day. However, when the 60-day tolling period is added to the statute of limitations, the plaintiff is required to act within 60 days. We must, if we can, interpret the two subparts of the statute in harmony with each other.
«7»I agree with the Court of Appeals and the majority that CR 6(a) controls the computation of time when action must be taken within a period of time but does not control the computation of time where action is prohibited until a period of time has passed. Troxell v. Rainier Pub. Sch. Dist. No. 307 , 119 Wn. App. 361 , 363, 80 P.3d 623 (2003).
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If we conclude that for a day to "elapse" the day need only end, and not start and end, then the two subparts of RCW 4.96.020 (4) are in harmony.
¶26 The first subpart of RCW 4.96.020 (4) prohibits the commencement of a tort action "until sixty days have elapsed after" the filing of the notice of claim with the "local governmental entity." This gives government defendants time to investigate and settle claims where possible. See Medina v. Pub. Util. Dist. No. 1 of Benton County , 147 Wn.2d 303 , 317, 53 P.3d 993 (2002). While the statute's purpose is clear, the statute is ambiguous as to when 60 days "elapse." It is apparent that two interpretations are possible: 60 days elapse on the 60th day after filing or 60 days elapse when 60 full days have intervened between filing of the notice and the commencement of a lawsuit. Because the former of these interpretations represents the plain and ordinary meaning of the phrase, "until 60 days have elapsed," I would hold that this is the only reasonable interpretation.
¶27 The conclusion that a day elapses when it ends is supported by both common parlance and the dictionary definition of "elapse" used by the majority. In common parlance, we compute time by omitting the first day but including all of the following days. Thus, if a physician gives a patient a prescription with instructions to take five pills beginning on Monday and to allow a day to elapse between taking each pill, we would understand the physician to be instructing us to take a pill on Monday, Tuesday, Wednesday, Thursday, and Friday.
¶28 Additionally, the majority defines "elapsed" so as to require that a day must "pass away" or "expire." Majority at 352. A day cannot pass away or expire at any time other than at the stroke of midnight. Rebecca Troxell served her claim notice at 3:35 P.M . on December 10. One could say that a day elapses after 24 hours but December 10 did not elapse at 3:35 P.M . on December 11; instead, the day elapsed just like every other day, at the stroke of midnight, which ended December 10 and began December 11. The majority seems
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to understand "a day elapsing" as not counting any of the day the notice was filed and then "a full day beginning and then ending." See majority at 352.
¶29 The majority suggests that if we read the statute so as to allow the suit to be filed on the 60th day, we will have adopted a rationale that considers a day to have "elapsed" in the time between 11:59:59 P.M . and 12 midnight. Majority at 351. The majority's interpretation of a day elapsing is arbitrary since, under its analysis, a person who files her notice of claim at 11:59:59 P.M . on December 9 could properly file her claim at 12 midnight on February 8, while a plaintiff who waited just one more second would be barred for an additional 24 hours and could not file until February 9.
¶30 More importantly, the majority's reading leads to an absurd result in a foreseeable circumstance, a situation we strive to avoid. State v. Neher , 112 Wn.2d 347 , 351, 771 P.2d 330 (1989). The purpose of the tolling clause is to account for the statutory delay associated with the waiting period. Despite the majority's recognition that "in Castro we sought to ensure that the waiting period did not reduce a plaintiff's limitations period ," majority at 357, the majority readily acknowledges that its reading effectively precludes claims from litigants who wait until the last day of the original statute of limitations period to serve claim notice. Majority at 356. The majority resolves this tension by noting that "the imputation that our Castro opinion put into place such a rule - one that would foreclose a claimant's suit on statute of limitations grounds, despite the claimant's timely filing of the claim notice - is contrary to the entire thrust of our decision in Castro ." Majority at 356-57. If this statement means only that we ought not lay the blame for such a result at Castro 's feet, I agree. Castro 's guaranty of the full statutorily mandated limitations period cannot rationally lead to a shortening of the limitations period. The majority's reading of Castro , however, effectively shortens the limitations period by one day by requiring that the claim notice be filed one day prior to the expiration of the
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limitations period. This harsh result is contrary to Castro 's guaranty and can hardly be said to have been intended by the legislature. Instead, "[t]he spirit or purpose of an enactment should prevail." State v. Day , 96 Wn.2d 646 , 648, 638 P.2d 546 (1981).
¶31 In Sievers v. City of Mountlake Terrace , 97 Wn. App. 181 , 983 P.2d 1127 (1999), the court interpreted the same statute. That court, as I do, read the two subparts of RCW 4.96.020 (4) in harmony. The court referred to the day on which the claimant filed, a Friday, as the 59th day. Id . The court thus implied that, but for the next day being a Saturday, the claimant could have brought her claim on that, the 60th day. Id . at 184. Because of the intervening weekend, the following Monday was "the only (last) possible day to commence the action . . . in compliance with the 60-day waiting rule . . . and within the applicable statute of limitation." Id . (emphasis added).
¶32 We do not read statutes to reach an absurd result when they may be read in an utterly sensible fashion. Glaubach v. Regence Blueshield , 149 Wn.2d 827 , 833, 74 P.3d 115 (2003). Since the majority's reading of the statute leads to an absurd result in a foreseeable circumstance, I respectfully dissent.
C. JOHNSON and SANDERS, JJ., and IRELAND, J. Pro Tem., concur with CHAMBERS, J.