143 Wn.2d 12, DEAN v. LEHMAN

[No. 68281-0. En Banc.]

Argued March 9, 2000. Decided February 8, 2001.

SUZANNE DEAN, Respondent, v. JOSEPH LEHMAN, ET AL., Appellants.

[1] Judgment - Collateral Estoppel - Elements - Injustice - Effect. Collateral estoppel will not bar the litigation of a claim if application of the doctrine would work an injustice on the claimant.

[2] Community Property - Status of Property - Acquisition During Marriage - Presumption - Burden and Degree of Proof. All property acquired during marriage is presumed to be community property, regardless of how title is held. To rebut the presumption, a party challenging the community property status of property acquired during marriage must show by clear and convincing proof that the property falls within a separate property exception.

[3] Community Property - Status of Property - Acquisition During Marriage - Presumption - Physical Separation of Spouses - Effect. The physical separation of married spouses does not, alone, alter the basic presumption that property acquired during marriage is community property.

[4] Community Property - Status of Property - Inability of Spouse To Control Property - Effect. A spouse's community property interest does not dissipate simply because the spouse is not in a position to exercise full control over the property.

[5] Community Property - Status of Property - Acquisition During Marriage - Presumption - Statutory Provisions - Legislative Intent. The presumption that property acquired during marriage is community property is not rebutted or superseded by a statute governing the disposition of a class of property absent an explicit statement of legislative intent to rebut or supersede the presumption.

[6] Gifts - Community Property - Status of Property - Gift - By Spouse to Spouse - Burden and Degree of Proof. A claim that one spouse made a gift of community property to the other spouse is not established absent clear, definite, and convincing proof of an intent by the spouse to presently give.

[7] Community Property - Status of Property - Funds Paid to One Spouse - Intent of Payor - Effect. A spouse's community interest in funds paid to the other spouse during marriage cannot be extinguished by the intent of the party who made the payment.

[8] Gifts - Community Property - Status of Property - Gift - Donative Intent - Effect. A spouse's community interest in property donated to the other spouse during marriage cannot be

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extinguished by the donative intent of the party who made the donation.

[9] Community Property - Prisons - Prisoner Property - Community Property Status - Statutory Assessments - Effect. Money and property received by a prison inmate who is married is presumed to be community property. The presumption is not rebutted by RCW 72.09.480, under which a 35 percent deduction is taken from outside funds received by prison inmates and applied to specified accounts in varying amounts.

[10] Prisons - Financial Assessments - Statutory Provisions - Validity - Standing To Challenge - Inmate's Spouse. The community interest a spouse has in outside funds acquired by the other spouse while incarcerated in prison is sufficient to confer standing on the spouse to challenge the validity of a statute mandating deductions from outside funds received by inmates and applying the sums to specified accounts in varying amounts.

[11] Taxation - Constitutional Law - Uniformity - Scope - In General. The uniformity requirement of Const. art. VII, 1 applies only to property taxes.

[12] Taxation - Constitutional Law - Uniformity - Regulatory Fees and Nontax Charges. Regulatory fees and other nontax-type charges are not subject to the uniformity requirement of Const. art. VII, 1.

[13] Taxation - Constitutional Law - Uniformity - Scope - Excise Tax. The uniformity requirement of Const. art. VII, 1 does not apply to excise taxes.

[14] State - Regulatory Fees - Distinguished From Tax - Test. The general difference between a tax and a regulatory fee is that a tax is an enforced contribution of money to the government for general governmental purposes while a regulatory fee is related to a direct benefit or service. Whether a charge imposed by government is a tax or a regulatory fee is determined by considering three factors: (1) whether the government's primary purpose is (a) to accomplish desired public benefits which cost money or (b) to regulate; (2) whether the money collected is allocated only to the purpose authorized; and (3) whether there is a direct relationship between the fee charged and the services received by those who pay the fee or between the fee charged and the burden produced by the fee payer. The fact that the public may incidentally benefit from a fee-based regulatory scheme does not necessarily make the fee a tax.

[15] Prisons - Financial Assessments - Cost of Incarceration - Married Inmate - Community Obligation. The cost of incarceration of a convicted offender, which is defined by RCW 72.09.480(l)(a) as the cost of providing an inmate with shelter, food, clothing, transportation, supervision, and other services and

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supplies while incarcerated, is a community obligation if the offender is married.

[16] Prisons - Financial Assessments - Statutory Provisions - Validity - Taxation Uniformity Requirement - Applicability. RCW 72.09.480, under which a 35 percent deduction is taken from outside funds received by prison inmates and applied to specified accounts in varying amounts, is not a tax and is not subject to the taxation uniformity requirement of Const. art. VII, 1.

[17] Eminent Domain - Inverse Condemnation - Constitutional Taking - User Fee. In general, a user fee does not constitute a taking within the meaning of the Fifth Amendment.

[18] State - Regulatory Fees - User Fees - Utilization by Government - Limitation. "User fees" collected by the government may be utilized for any purpose.

[19] Prisons - Financial Assessments - Statutory Provisions - Purposes. The overall purpose of RCW 72.09.480, under which a 35 percent deduction is taken from outside funds received by prison inmates and applied to specified accounts in varying amounts, is to obtain recompense for the costs associated with incarcerating inmates.

[20] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Argument - Necessity. Absent argument that the state constitution should be interpreted more expansively than the federal constitution or briefing on the nonexclusive factors set forth in State v. Gunwall, 106 Wn.2d 54 (1986), an appellate court may decline to consider an argument that the state constitution provides greater protection than the federal constitution in a particular circumstance.

[21] Prisons - Financial Assessments - Statutory Provisions - Validity - Constitutional Taking. RCW 72.09.480, under which a 35 percent deduction is taken from outside funds received by prison inmates and applied to specified accounts in varying amounts, does not effect a taking within the meaning of the Fifth Amendment.

[22] Prisons - Savings Accounts - Interest - Property Right. Under RCW 72.09.111(l)(d), interest earned or accumulated on funds deposited in a savings account on behalf of a prison inmate is the property of the individual inmate and may not be seized by the government.

ALEXANDER, C.J., and JOHNSON AND SANDERS, JJ., dissent by separate opinion; CHAMBERS AND OWENS, JJ., did not participate in the disposition of this case.

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Nature of Action: The spouse of a prison inmate sought the invalidation of a statute mandating the deduction of 35 percent of all funds received by prison inmates.

Superior Court: The Superior Court for King County, No. 97-2-12906-1, Glenna S. Hall, J., entered a judgment in favor of the plaintiff on May 17, 1999.

Supreme Court: Holding that the statute mandating the deduction is constitututional but that inmates are entitled to interest earned on inmate savings accounts, the court reverses the judgment in pari and orders that interest on inmate savings accounts be returned to present and former inmates.

Christine O. Gregoire, Attorney General, and Douglas W. Carr and Mary E. Fairhurst, Assistants, for appellants.

Chris R. Youtz, Jonathan P. Meier, and Marie E. Gryphon (of Sirianni & Youtz), for respondent.

Patricia J. Arthur on behalf of Pro-Family Advocates of Washington, amicus curiae.

Nancy L. Talner on behalf of American Civil Liberties Union of Washington, amicus curiae.

Nancy L. Sapiro on behalf of Northwest Women's Law Center, amicus curiae.

MADSEN, J. - Suzanne Dean (Dean), wife of a Department of Corrections (DOC) 1 inmate, sent money to her husband during his incarceration. She represents a class of similarly situated persons (Class) challenging the validity of RCW


1 Part of the Class' claim was based on 42 U.S.C. 1983, which is the reason Joseph Lehman and Chase Riveland are named in their individual capacities. Clerk's Papers (CP) at 26. For simplicity, all defendants in this case will be referred to as "DOC." The American Civil Liberties Union of Washington, the Northwest Women's Law Center, and the Pro-Family Advocates of Washington have filed a joint amicus curiae brief in support of the Class.


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72.09.480, which mandates the deduction of 35 percent of all funds received by prison inmates. The deductions are allocated in the following manner: 10 percent to an inmate savings account; 20 percent to contribute to the cost of incarceration; and 5 percent to a victims' compensation fund.

On a motion for summary judgment the trial court held, as to the Class: (1) RCW 72.09.480 violates the uniformity requirement of article VII, section 1 of the Washington Constitution; (2) deductions for the victims' compensation fund and costs of incarceration violate the Takings Clauses of the Washington and United States Constitutions; and (3) that the Class is entitled to earned interest on inmate savings accounts. The trial court also ordered the return of all previously seized funds. The DOC appealed, and the Court of Appeals certified the case to this court.

We reverse, holding that RCW 72.09.480 is constitutional, but that the inmates are entitled to previously earned interest on their inmate savings accounts.

FACTS

In 1995, the Legislature enacted RCW 72.09.480, authorizing specified deductions from any outside funds sent to DOC inmates:

When an inmate, except as provided in subsection (6) of this section, receives any funds in addition to his or her wages or gratuities, the additional funds shall be subject to the deductions in RCW 72.09.111(l)(a) and the priorities established in chapter 72.11 RCW.

RCW 72.09.480(2). The following deductions are authorized:

(i) Five percent to the public safety and education account for the purpose of crime victims' compensation;

(ii) Ten percent to a department personal inmate savings account; and

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(iii) Twenty percent to the department to contribute to the cost of incarceration.

RCW 72.09.111(l)(a). 2

The "personal inmate savings account" is essentially a compelled savings account. Funds from this account "together with any accrued interest" are available to the inmate upon his or her release. RCW 72.09.111(l)(d). 3 As applied to all of the deductions, the "amount deducted from an inmate's funds ... shall not exceed the department's total cost of incarceration for the inmate." RCW 72.09.480(3).

[1] Inmates subject to the statutory deductions filed a number of federal lawsuits, one of which (Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000)) was certified as a class action by United States District Court Judge Franklin Burgess. Class Br. at 3. Plaintiffs in that suit sought certification of a "non-inmate" class, which included the spouses of DOC inmates. Clerk's Papers (CP) at 100. The United States District Court denied the request, noting that "the proposed 'non-inmate' class may raise different claims and defenses than those raised by the 'inmate' class." Id. Specifically, the court recognized that "[a]n individual sending money to his or her incarcerated spouse may have a community property interest in the funds held in a prisoner's bank account." 4 Id. The District Court rejected most of plaintiffs' claims but held that the deductions could


2 The only Washington case to address the deductions in RCW 72.09.480 is In re Personal Restraint of Metcalf, 92 Wn. App. 165, 963 P.2d 911 (1998). In that case, a challenge was brought to RCW 72.09.480 by an inmate who was incarcerated prior to the passage of the statute. The court held: (1) application of the deductions statute does not violate a prisoner's due process rights; (2) the deductions were not punishment for purposes of ex post facto, double jeopardy, bills of attainder, and excessive fines clauses; and (3) the statute did not violate the single subject rule of the Washington Constitution, nor was it impermissible special legislation.

3 Funds may also be released if the "secretary determines that an emergency exists for the inmate." RCW 72.09.111(l)(d).

4 The DOC argues that the federal lawsuit brought by the inmates (Wright v. Riveland) should, under the doctrine of collateral estoppel, bar the Class' current Takings Clause claims. Four elements must be shown by the DOC for the doctrine of collateral estoppel to apply: (1) the issue decided in the prior adjudication must be identical with the one presented in the second action; (2) the prior adjudication


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not be made from certain federal entitlements on Supremacy Clause grounds.

Spouses of DOC inmates filed suit in King County Superior Court, challenging the validity of RCW 72.09.480 on a variety of bases. On cross-motions for summary judgment the trial court held, as to the Class: (1) RCW 72.09.480 violates the uniformity requirement of article VII, section 1 of the Washington Constitution; (2) deductions for the victims' compensation fund and costs of incarceration violate the Takings Clauses of the Washington and United States Constitutions; and (3) that the Class is entitled to earned interest on inmate savings accounts. The trial court also ordered the return of all previously seized funds. The trial court ordered the DOC to discontinue making deductions from funds received by married inmates, but continued to allow the deductions as to all unmarried inmates. CP at 349-50. The DOC appealed, and the Court of Appeals certified the case to this court.

ANALYSIS I

The first issue in this case is whether the Class, composed of spouses of DOC inmates, has standing to challenge the validity of RCW 72.09.480. The general rule is that "[o]ne who is not adversely affected by a statute may not question its validity." Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987). This basic rule of standing "prohibits a litigant. . . from asserting the legal rights of another." Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 281, 937 P.2d 1082 (1997)


must have ended in a final judgment on the merits; (3) the party against whom the doctrine is asserted must have been a party or in privity with the party to the prior adjudication; and (4) application of the doctrine must not work an injustice. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262-63, 956 P.2d 312 (1998). Even if the first three elements of collateral estoppel were satisfied in this case, barring the Class' claims would clearly work an injustice. The Class attempted, but was unsuccessful, in becoming a party to the federal lawsuit. The court felt that the issues raised by the Class would be significantly different from those of the inmates.


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(citing Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994)). It also mandates that a party have a "real interest therein," State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 680, 131 P.2d 943 (1942), prior to bringing a cause of action.

The Class contends that as inmate spouses it has a one-half community property interest in funds sent to its spouses. Therefore, it claims the 35 percent deduction authorized by RCW 72.09.480 directly implicates its "interests." The trial court agreed with the Class, finding that it ''presumptively has legally protected interests in its spouses' prison accounts by virtue of community property law." CP at 316. The DOC assigns error to this finding.

The DOC makes three arguments: (1) that RCW 72.09.480 overrides any potentially conflicting community property laws; (2) that money sent from Class members is a gift, thereby losing its community property character; and (3) that the 35 percent deduction authorized by RCW 72.09.480 reaches only the inmate spouse's one-half community property interest in the funds sent, which according to the DOC, is authorized by this Court's holdings in deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), and Keene v. Edie, 131 Wn.2d 822, 935 P.2d 588 (1997).

[2-10] Turning first to the DOC's contention that RCW 72.09.480 overrides conflicting community property laws, we have recognized that a community property interest may be a sufficiently "real" interest to confer standing. LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 776, 496 P.2d 343 (1972) (one-half beneficial interest in corporate stock by reason of community property law is sufficient to confer standing for stockholder derivative suit). In Washington all property acquired during marriage is presumptively community property, regardless of how title is held. Yesler v. Hochstettler, 4 Wash. 349, 353-54, 30 P. 398 (1892); see RCW 26.16.030; Harry M. Cross, The Community Property Law in Washington (Revised 1985), 61 WASH. L. REV. 13, 27-28 (1986). The burden of rebutting this presumption is on the

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party challenging the asset's community property status, In re Estate of Smith, 73 Wn.2d 629, 631, 440 P.2d 179 (1968) (citing Rustad v. Rustad, 61 Wn.2d 176, 377 P.2d 414 (1963)), and "can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception." Estate of Madsen v. Comm'r, 97 Wn.2d 792, 796, 650 P.2d 196 (1982), overruled in pari on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60, 689 P.2d 46 (1984). Physical separation of the spouses, without more, does not alter the basic community property presumption. Rustad, 61 Wn.2d at 180; Cross, supra, at 92; see also RCW 26.16.140.

The DOC essentially argues that RCW 72.09.480 serves to rebut the general community property presumption. Central to the DOC's argument is the fact that the DOC is the custodian of the funds and that the funds are "not subject to the management and control of either spouse" nor "available to satisfy general community obligations." DOC Br. at 8. According to the DOC, this reduced control by an inmate's spouse over sent funds extinguishes the spouse's community property "interest" in those funds. The Class correctly notes that this argument conflicts with a line of cases establishing that a spouse's community property interest does not dissipate simply because he or she is not in a position to exercise full control over the property. Class Br. at 5; see Seattle-First Nat'1 Bank v. Brommers, 89 Wn.2d 190, 200, 570 P.2d 1035 (1977) (spouse under guardianship continues to have an interest "in the ownership" of community property); Rustad, 61 Wn.2d 176 (wife confined to mental hospital for remainder of life retains community property rights in assets acquired by husband).

The DOC also cites Arnold v. Department of Retirement Systems, 128 Wn.2d 765, 912 P.2d 463 (1996). At issue in Arnold were two provisions of the Washington Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF) that precluded a divorced spouse from receiving LEOFF benefits, "earned" by the other spouse during mar-

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riage, after the death of the employee spouse. Id. at 767; see RCW 41.26.030(6), .160. This court held that the Legislature "may establish by statute the designated beneficiaries of a statutory death or survivorship benefit, notwithstanding traditional community property principles." Id. at 779; but see Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1199 (9th Cir. 1998) ("constitutionally protected property rights can - and often do - exist despite statutes . . . that appear to deny their existence").

The DOC's reliance on Arnold is misplaced. First, the statutory provision at issue in Arnold was explicit in delineating who did and did not have a property interest in LEOFF death benefits. 128 Wn.2d at 769. In contrast, RCW 72.09.480 says nothing about the ownership of funds received by an inmate spouse. At a minimum, to rebut the basic presumption of the community nature of marital property, which is firmly embedded in the policy of this State, Lyon v. Lyon, 100 Wn.2d 409, 414, 670 P.2d 272 (1983), the Legislature must be explicit in its intent. Second, Arnold involved a state-created death and disability benefit. The LEOFF provisions were merely a legislatively enacted condition to a legislatively granted benefit. And finally, as we noted in Arnold, an ex-spouse who may have been "deprived of appropriate recompense" by the LEOFF provisions was not remediless. 128 Wn.2d at 780. He or she was permitted to argue for a "just and equitable distribution of marital assets," RCW 26.09.080, in the dissolution proceeding. Id. at 783.

To further distinguish Arnold, the Class cites Estate of Madsen, which reflects our reluctance to find a legislative intention to classify marital property as separate property, absent a clear statement to that effect. At issue in Madsen was an RCW provision requiring that life insurance policies,

made payable to or for the benefit of the spouse of the insured... or in any way made payable to a spouse . . . shall, unless contrary to the terms of the policy, inure to the separate

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use and benefit of such spouse....

Estate of Madsen, 97 Wn.2d at 798 (quoting RCW 48.18.440(1)). The court was confronted with the question of whether the above statutory language converted "community property life insurance policies into the sole and separate property of the beneficiary spouse." Id. In accord with previous cases, we held that the statute was limited to the "proceeds" of a policy and did not change the community character of the underlying policy, despite statutory language indicating the policy was to "inure to the separate use" of the beneficiary spouse. Id. at 799-800.

The DOC's second argument is that community funds received by an inmate should be classified as gifts to the inmate. DOC Br. at 12. It is true that either spouse, acting alone, may give his or her share of a community asset to the other as a gift. Kern v. United States, 491 F.2d 436 (9th Cir. 1974). But in order to overcome the strong community property presumption evidence of a gift must be "clear, definite, and convincing." Id. at 439; Cross, supra, at 109. Consistent with the requirements for a valid gift, this proof must include evidence of "an intention on the pari of the donor to presently give." Henderson v. Tagg, 68 Wn.2d 188, 192, 412 P.2d 112 (1966).

Of course, this must be a fact specific inquiry, which necessarily precludes the DOC from making a credible argument that all members of the class subjectively "intend" to make gifts to their inmate spouses every time they send funds. Moreover, the DOC's argument fails to address the status of community funds from other sources (i.e., pension checks) that might be received by an inmate and be subject to the mandatory deductions. See Farver v. Dep't of Ret. Sys., 97 Wn.2d 344, 346, 644 P.2d 1149 (1982) (both spouses may have interest in retirement benefits). Regardless of donative intent, a party sending a pension check to an inmate has no power to extinguish the other spouse's community property interest in those funds.

The DOC also relies on two older "gift" cases, Johnson v.

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Dar Denne, 161 Wash. 496, 296 P. 1105 (1931), and In re Estate of Hubbard, 115 Wash. 489, 197 P. 610 (1921). In Johnson this court held that two diamond rings given by a husband to his wife were her separate property. Johnson, 161 Wash. at 497. We noted the extremely narrow scope of our holding:

In an action such as this, when the rights of creditors are not involved, and as between the husband and wife only, jewelry or articles of personal adornment, acquired after marriage with community funds, but worn and used solely by the wife, will be held to be the separate property of the wife by gift from the husband upon comparatively slight evidence.

Id.

In re Hubbard, the second case cited by the DOC, is equally unhelpful. In Hubbard, this court held that bonds given to a wife by a husband were the wife's separate property based upon undisputed testimony that the husband handed his wife the bonds and "told her to keep them as they were hers." In re Hubbard, 115 Wash. at 491. Here the DOC has failed to provide any evidence of intent, thus failing to meet even the standard of "comparatively slight evidence" announced in these cases.

Finally, the DOC contends that the deductions take less than the inmate spouse's one-half share of community property, which the DOC argues is permitted under this court's decisions in deElche and Keene. By taking less than the inmate's one-half interest, the Class members' interest remains intact, which argues the DOC, deprives them of standing. deElche involved a separate tort committed by a married man, Mr. Jacobsen. deElche, 95 Wn.2d at 238. Mr. Jacobsen was found liable to the victim in his separate capacity, but had no separate property to satisfy the judgment. Under then existing law Mr. Jacobsen was insulated from collection because his share of community property could not be reached to satisfy a judgment arising from his separate tort. Id. at 239. We altered this rule, holding that Mr. Jacobsen's one-half interest in community personal property could be attached to satisfy the separate tort

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judgment against him since he possessed insufficient separate assets to satisfy the claim. Id. at 246. In Keene, we extended deElche to allow recovery from a tortfeasor's one-half interest in community real property absent sufficient separate property or community personal property.

To counter the DOC's argument, the Class cites Bergman v. State, 187 Wash. 622, 60 P.2d 699 (1936). In Bergman, this court held that if a party is convicted of a crime,

for which he alone could be, and was, prosecuted and convicted, the judgment, both as to the penalty and as to its incident, the costs, operated upon him and him alone. If the costs be considered as a debt, or civil obligation, it was his debt, not that of the marital community.

Id. at 628.

The DOC argues that Bergman's rule must yield to the policies enunciated in deElche and Keene. While that poses an interesting question, it is not one which requires an answer in this case. Even under deElche and Keene the tortfeasor's (or in this case the criminal's) separate property must be entirely exhausted prior to allowing use of the offending party's one-half interest in community property. deElche, 95 Wn.2d at 246; Keene, 131 Wn.2d at 834-35. In this case, the State is not actively collecting a judgment, but rather it is passively taking a percentage of all funds received by an inmate. Under such circumstances there is simply no way to ascertain whether all of the inmate's separate property has been exhausted. Moreover, as conceded by the DOC, there are some circumstances where deductions may exceed 50 percent of the total amount received by an inmate. 5 DOC Br. at 9 n.4, 16 n.5. Therefore, we believe the Class' basis for standing remains intact under deElche and Keene.


5 Additional deductions include: (1) legal financial obligations, RCW 72.11.020; (2) assessments for services or supplies provided by the DOC, RCW 72.09.450; (3) court-ordered cost bills, RCW 72.09.450(3); (4) medical repayments, RCW 72.10.020(2)(c); and (5) restitution, RCW 72.09.010(7).


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II

[11] The trial court found that the deductions authorized by RCW 72.09.480 violated the taxing uniformity requirement of the Washington Constitution. Article VII, section 1 provides:

All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word "property" as used herein shall mean and include everything, whether tangible or intangible, subject to ownership.

WASH. CONST. art. VII, 1 (uniformity requirement).

This provision "applies only to property taxes," Cosro, Inc. v. Liquor Control Bd., 107 Wn.2d 754, 761, 733 P.2d 539 (1987), however, the term property "is as broad and comprehensive as may well be imagined." Am. Smelting & Ref. Co. v. Whatcom County, 13 Wn.2d 295, 302, 124 P.2d 963 (1942). It includes items as diverse as "income," Jensen v. Henneford, 185 Wash. 209, 53 P.2d 607 (1936), and franchises. Commercial Elec. Light & Power Co. v. Judson, 21 Wash. 49, 56 P. 829 (1899).

[12] Nevertheless, the uniformity requirement's limitation to "property taxes" serves to exclude some revenue generating practices from its scope. Charges described as anything other than a tax, which include "regulatory fees," are not subject to article VII, section 1:

Taxes are imposed to supply revenue for the public treasury. Not all demands for payment made by a governmental body are taxes. We have pointed out that "if the primary purpose of legislation is regulation rather than raising revenue, the legislation cannot be classified as a tax even if a burden or charge is imposed."

Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982) (citation omitted) (quoting City of Spokane v. Spokane Police Guild, 87 Wn.2d 457, 461, 553 P.2d 1316 (1976)).

[13] Excise taxes also fall beyond the breadth of the

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uniformity requirement. Black v. State, 67 Wn.2d 97, 100, 406 P.2d 761 (1965). These limitations are ubiquitous among states with constitutional requirements similar to Washington's:

It is frequently stated or recognized that the constitutional requirements of equality and uniformity of taxation are applicable only to the ordinary, recurring taxes on property, which are collected annually according to assessed value, and are imposed for the purpose of raising general revenue. The natural corollary to this proposition, that equality and uniformity provisions are not applicable to excise taxes, is occasionally asserted or recognized.

71 AM. JUR 2D State and Local Taxation 162 (1973) (footnote omitted).

In attempting to place the deductions authorized by RCW 72.09.480 outside the scope of Article VII, section 1, the DOC argues they are regulatory fees or, alternatively, excise taxes. In both cases, the DOC essentially argues that the deductions are not "taxes," as that term is used in article VII, section 1. We agree.

[14] It is beyond dispute that article VII, section 1 applies only to taxes. Anything other than a tax is beyond the provision's scope. The term "tax" has been defined by this court as,

an enforced contribution of money, assessed or charged by authority of sovereign government for the benefit of the state or the legal taxing authorities[,] [and i]t is not a debt or contract in the ordinary sense, but it is an exaction in the strictest sense of the word.

State ex rel. City of Seattle v. Dep't of Pub. Utils., 33 Wn.2d 896, 902, 207 P.2d 712 (1949).

A corollary to th s principle is that "[w]here the charge is related to a direct benefit or service, it is generally not considered a tax or assessment." King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 833, 872 P.2d 516 (1994).

In ascertaining whether a governmentally imposed

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charge is a foe or a tax this court adheres to a three factor test, most recently articulated in Covell v. City of Seattle, 127 Wn.2d 874, 879, 905 P.2d 324 (1995). The first factor is

"whether the primary purpose of the... [State] is to accomplish desired public benefits which cost money, or whether the primary purpose is to regulate . . .." If the primary purpose of the charges is to raise revenue, rather than to regulate, then the charges are a tax. Conversely, if the primary purpose is regulatory, "the charges are properly characterized as 'tools of regulation' rather than taxes."

Id. at 879 (quoting Hillis Homes, 97 Wn.2d at 809, and Teter v. Clark County, 104 Wn.2d 227, 239, 704 P.2d 1171 (1985)) (citation omitted).

While the general public may receive an incidental benefit from the deductions at issue here, it is the inmates who are the direct recipients of the 10 percent deduction which goes into inmate savings accounts and of the 20 percent deduction which pays for inmate work programs offered only to inmates. The remaining 5 percent deduction directly benefits victims of crime. It is apparent that the primary purposes of these charges is not to raise revenue but to benefit a small group of individuals, the inmates themselves and crime victims.

A recent opinion of the Ninth Circuit Court of Appeals, Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000), mirrors our reasoning. The question before the court was whether RCW 72.09.480's deductions, the same deductions at issue here, constitute a tax under the Tax Injunction Act (TIA), 28 U.S.C. 1341. In part, the test employed in Wright looked at whether the funds collected are expended for general public purposes or for the regulation or benefit of the parties on whom the deduction is imposed. 219 F.3d at 911. The court concluded that the deductions here are not a "tax" within the meaning of the TIA because the deductions provide only an incidental public benefit and directly benefit only the victims of crime and the inmates themselves. Id. at 911.

The second prong of the Covell test is whether the funds

 28    DEAN v. LEHMAN    Feb. 2001 
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collected are allocated only to the purpose authorized. 127 Wn.2d at 879. As mentioned above, 10 percent of the funds are deposited into : inmate savings accounts, 20 percent are used directly for prison work programs, and 5 percent are deposited into a victim's compensation fund. Although RCW 72.09.111 previously required the 20 percent deduction to be deposited in the general fund, this provision was amended to provide that these funds be used "only for the purpose of enhancing and maintaining correctional industries work programs." RCW 72.09.111(3). Under the second element of Covell the statute does not provide for a tax.

Similarly, under the third part of the Covell test, the statute does not constitute a tax. This last inquiry is whether there is a direct relationship between the fee charged and the services received by those who pay the fee or between the fee charged and the burden produced by the fee payer. 127 Wn.2d at 879. Where such a relationship exists it is not necessary that the charge be individualized as to the actual her efit received or burden imposed by the payer. Id. at 879. Here, the total deductions authorized by the statute may not exceed the cost of the inmate's incarceration, thus tying the deductions to the actual benefit received or burden imposed by the inmate.

[15, 16] We conclude that the deductions authorized in RCW 72.09.480 are not taxes.

It is difficult, however, to pigeonhole these charges. While the 20 percent deduction serves a regulatory purpose, the 10 percent deduction is a forced savings account for the inmate. Since the deductions in their entirety are capped at the cost of the inmate's incarceration we believe RCW 72.09.480 is best described as a recoupment provision, designed to collect a fee for specific services rendered by the State to inmates. We observe that states have been permitted to recover from an inmate his or her costs of incarceration. See, e.g., Burns v. State, 303 Ark. 64, 793 S.W.2d 779 (1990); Ervin v. Blackwell, 733 F.2d 1282 (8th Cir. 1984); Cumbey v. State, 699 P.2d 1094 (Okla. 1985); Auditor Gen.

 Feb. 2001     DEAN v. LEHMAN    29 
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v. Hall, 300 Mich. 215, 1 N.W.2d 516 (1942). 6 The total amount of authorized deductions permitted under RCW 72.09.480 is capped at the cost of an inmate's incarceration. RCW 72.09.480(3). Once these costs have been recouped, the deductions stop. Under no circumstances will an inmate be forced to pay more than the burden he or she has imposed on the system. In fact, because this cap includes the 10 percent mandatory savings, which is returned to the inmate upon his or her release, the DOC will never recoup the full "cost of incarceration." Also, if an inmate does not receive funds while in prison the DOC's costs are never recovered.

Viewed in this light the deductions authorized by RCW 72.09.480 are essentially akin to a direct "user fee," in that they allow the DOC to recoup its expenditures, but no more. In essence, an inmate is being asked to reimburse the State because the inmate "has made it necessary for the State to keep and maintain him at a large cost." Hall, 1 N.W.2d at 518.

In State ex rel. Dorothea Dix Hospital v. Davis, 292 N.C. 147, 232 S.E.2d 698 (1977), the North Carolina Supreme Court decided a question similar to that presented by the case at bar under the tax uniformity provision of its state constitution. At issue in Davis was a statute authorizing the state to obtain reimbursement for inpatient mental care provided to an individual acquitted of murder by reason of insanity. While we do not endorse Davis' holding in toto, we are persuaded by Davis' analysis of its tax uniformity question. The Davis court did not struggle with classifying the charge as a "regulatory fee" or "excise tax." Instead, the court found that a reimbursement scheme is not a tax:

The charges under consideration in present case are not made for the support of the government, nor are they related to or limited by the necessities of government. They represent the


6 The Class does not concede that the deductions of RCW 72.09.480 are made to collect an inmate's "costs of incarceration." Assuming that this is the purpose, and that it is a valid one, the Class has not presented an argument that the manner of collection itself is flawed.


 30    DEAN v. LEHMAN    Feb. 2001 
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actual cost of 1;he care, treatment and maintenance of a particular patient. It is not unequal or unjust taxation, "nor taxation at all, to require a man to be supported out of his own estate."

Id. at 705 (citation omitted) (quoting In re Yturburru's Estate, 134 Cal. 567, 66 P. 729 (1901)).

The Class contends, however, that under Bergman the marital community is not liable for the cost of a spouse's incarceration. We disagree. As noted earlier, Bergman provided that if a party is convicted of a separate crime, "for which he alone could be, and was, prosecuted and convicted, the judgment, bo1;h as to the penalty and as to its incident, the costs, operated upon him and him alone," not the marital community. Bergman, 187 Wash. at 628. We interpret Bergman's reference to "costs" as limited to costs, such as attorney fees, penalties, and the like, not food, shelter, and other living expenses, the latter of which are included in an inmate's "cost of incarceration." Cost of incarceration is defined by statute:

"Cost of incarceration" means the cost of providing an inmate with shelter, fool, clothing, transportation, supervision, and other services and supplies as may be necessary for the maintenance and support of the inmate while in custody of the department, base d on the average per inmate costs established by the department and the office of financial management.

RCW 72.09.480(1 i(a).

The types of expenses identified above would be community expenses if one spouse were simply living in a separate home from the cither spouse. The fact that one of the spouses is in prison receiving "shelter, food, clothing, [and] transportation" does not alter the basic character of these expenses.

We recognize that funds collected by the DOC are not directly allocated to paying for an inmate's "shelter, food, clothing, [and] transportation." We believe the allocation of funds does nothing to detract from the fact that the overall scheme of RCW 72.09.480 is to "reimburse" the state for its

 Feb. 2001     DEAN v. LEHMAN    31 
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"costs of incarceration." When the government is seeking reimbursement for services it has provided, the manner in which it directs those funds after their collection is of no significance. Indeed, the state here could have simply directed that the funds be placed in the general fund. Cf. United States v. Sperry Corp., 493 U.S. 52, 54, 110 S. Ct. 387, 107 L. Ed. 2d 290 (1989) ("user fee" for Iran-United States claims tribunal deposited in the "United States Treasury"). Nevertheless, funds collected under RCW 72.09.480 go directly to benefit the inmates or crime victims and, thus, are expended within the criminal justice system, upon which the inmate has placed a burden. The 20 percent deduction is used to fund prison work programs. The 10 percent mandatory savings account contribution is later returned to the inmate. And the 5 percent deduction goes to a statewide victims' compensation fund.

We hold that the deductions authorized by RCW 72.09.480 do not violate the tax uniformity requirement of article VII, section 1 of the Washington Constitution. 7

III

Pursuant to the Takings Clause of the Fifth Amendment, "private property [shall not] be taken for public use, without just compensation." U.S. const. amend. V. This provision is applied to the states through the Due Process Clause of the Fourteenth Amendment. The trial court found that the deductions for "cost of incarceration" and "victims' compensation" violated the Takings Clauses of the United States and Washington Constitutions. 8 We disagree.

If the deductions authorized by RCW 72.09.480 could be construed as a taking, they are in the nature of a monetary exaction, as opposed to a regulatory taking. The principle


7 Amici raise legitimate concerns regarding the burden this statute places on Class members who are in many instances struggling financially. These concerns, however, must be addressed to the Legislature.

8 In its briefing the Class contends that the 10 percent deduction for mandatory savings is a taking. Class Br. at 33. The trial court did not rule in favor of the Class on this issue and it has not appealed this matter.


 32    DEAN v. LEHMAN    Feb. 2001 
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case relied upon by both parties is Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980). At issue in Webb's was the validity of a state statute that permitted a county to take the interest accruing on an interpleader fund deposited in the county court registry and place it in the general revenue fund. Id. at 157-58. This interest was taken in addition to a fee for court services that had already been charged, thus precluding the court from finding that the seized interest was a fee for services. Id. at 162. The Court held that the seized interest "is a forced contribution to general governmental revenues, and it is not reasonably related to the costs of using the courts." Id. at 163.

The Class concedes that under Webb's Fabulous Pharmacies if a charge is "reasonably related" to either a benefit provided to, or a burden produced by, a particular citizen it is not a taking. Class Br. at 35. Instead, the Class contends that it is the inmates, not the spouses of inmates, that may be assessed fees. Once again, the Class relies on Bergman for this proposition. We hold that the Class' argument fails for the same reasons it did with respect to its article VII, section 1 claim. We believe the marital community is liable for a spouse's costs of incarceration.

[17] User fees have consistently been upheld under the Takings Clause. United States v. Sperry Corp., 493 U.S. 52; Massachusetts v. United States, 435 U.S. 444, 98 S. Ct. 1153, 55 L. Ed. 2d 403 (1978). In Sperry the Supreme Court upheld a two-percent deduction from all awards made by the Iran-United States claim tribunal as a "user fee." The collected fees were not used to fund the tribunal, but were deposited directly into the "United States Treasury." 493 U.S. at 54. The Court noted that it "has never held that the amount of a user fee must be precisely calibrated to the use that a party makes of Government services." Id. at 60. Moreover, the Court rejected a claim that it was improper to charge a party "for the use of procedures that it has been forced to use, or at least that it would rather not have used." Id. at 63.

 Feb. 2001     DEAN v. LEHMAN    33 
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[18, 19] The Class separates out each of the deductions made under RCW 72.09.480, looking specifically to what the funds are ultimately used for. We believe this analysis is unnecessary. The overall scheme of the deductions authorized by RCW 72.09.480 is to seek recompense for the costs associated with incarcerating an inmate. Under Sperry, the government cam utilize collected "user fees" for any purpose. Funds may even be placed in the general treasury, although that has not occurred in this case.

[20, 21] The Class has not argued that the Washington Takings Clause should be interpreted more expansively than its federal counterpart, nor has it engaged in the necessary predicate to asserting such a claim, a briefing of the Gunwall factors. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Accordingly, we decline to address the question, holding only that the deductions authorized by RCW 72.09.480 do not violate the Takings Clauses of the United States Constitution.

IV

[22] Prior to February 28, 1997, interest was accumulated on mandatory inmate savings accounts. The accounts were pooled and accrued interest was distributed to an "Inmate Betterment Fund," described by the DOC as,

a state fund set up to provide inmates with amenities that would otherwi se likely not be available to inmates . . . [It] pays for recreation staff, recreation supplies, hobby craft equipment, holiday events, extended family visiting supplies, visiting room supplies, cable TV service, television for day rooms, library supplies, offender store staff salaries and benefits, and other activities and equipment approved by the Secretary of DOC.

CP at 138. The Class contends that the seizure of these funds was improper. 9 Specifically, they claim to have a


9 The DOC asserts that the Class should be prohibited from raising this argument because, argues the DOC, it was not in the complaint and was raised for the first time in a motion for summary judgment. This argument is without merit. The Class' complaint alleges that "10 percent [of the seized funds] is placed in a


 34    DEAN v. LEHMAN    Feb. 2001 
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state-created, constitutionally protected property right in the accrued interest, which they assert is derived from RCW 72.09.480. That provision states:

[t]he department personal inmate savings account, together with any accrued interest, shall only be available to an inmate at the time of his or her release from confinement....

RCW 72.09.111(l)(d) (emphasis added). We agree.

The Class' challenge to the DOC's practice is not the first of its kind in Washington. An individual Washington DOC inmate, Peterson, filed a civil rights suit in United States District Court, Eastern District of Washington, challenging the DOC's pooling of inmate accounts and depositing accrued interest in the "inmate betterment fund." CP at 107. The district court ruled in favor of Peterson, finding that the state, by reason of RCW 72.09.lll(l)(d), had created a property right in favor of Peterson as to the accrued interest. CP at 110-11. In response to the Peterson decision, on February 28, 1997, the DOC began placing inmate savings in noninterest bearing accounts. 10 DOC Br. at 42; DOC Policy 200.000.

We believe Peterson was correct in its resolution of this issue. A nearly identical question was presented in Tellis v. Godinez, 5 F.3d 1314 (9th Cir. 1993). In Tellis, a Nevada state inmate alleged that prison officials had violated the


mandatory savings account which cannot be accessed until the prisoner is released, and on which the State pays no interest to the prisoner or to the Class." CP at 69 (emphasis added). Under notice pleading, this is a sufficient basis to be permitted to raise the claim. Waller v. State, 64 Wn. App. 318, 337, 824 P.2d 1225 (1992).

10 It is unclear whether the DOC continues to place inmate funds in noninterest bearing accounts. See DOC Br. at 43; Class Br. at 45. However, it does appear that if interest is being earned it is being returned to the inmates. Laws of 1999, ch. 324, 4 requires:

The secretary of corrections shall prepare a plan for depositing inmate savings account funds into an interest bearing account. . . [t]he secretary shall present the plan to the governor and the legislature not later than December 1, 1999.

Section 1(7) of the same bill provides:

The interest earned on an inmate savings account created as a result of the plan in section 4 of this act shall be exempt from the mandatory deductions under this section [RCW 72.09.480] and RCW 72.09.111.


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Takings Clause by confiscating funds earned in his personal prison bank account (e.g., prisoner's fund) and using them to fund "prisoner recreation and law library expenses." Id. at 1316 n.3. A Nevada statute provided that "interest and income earned on the money in the [prisoner's] fund . . . must be credited to the fund." Id. at 1316 (emphasis omitted) (citing NEV. REV. STAT. 209.241); see also Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) (property interests are "created and . . . defined... by existing rules . . . that stem from an independent source such as state law . .."). The court concluded that the "plain language of this section . . . does create a protected property interest in interest and income actually earned on money deposited in the prisoners' personal property fund." Tellis, 5 F.3d at 1317. On this basis, the court found the Nevada department of corrections' practice constitutionally infirm. Id.

In Schneider v. California Department of Corrections, 151 F.3d 1194 (9th Cir. 1998), the Tellis rule was broadened to include "all" interest that is earned on inmate bank accounts, even if there is a specific statutory directive that the interest be used for an "Inmate Welfare Fund." Id. at 1196. The California Penal Code provided that the State " 'may deposit. . . [inmate bank account] funds in interest-bearing bank accounts' and that, if it does so, it 'shall deposit the interest or increment accruing on such funds in the Inmate Welfare Fund.' " Id. (emphasis omitted) (quoting cal. PENAL CODE 5008) Despite this statutory directive, the court held that interest income "is sufficiently fundamental that States may not appropriate it without implicating the Takings Clause." Id. at 1201. Central to the court's finding of a constitutionally protected property right was the basic proposition that "interest follows principal." Id. at 1199; see Phillips v. Wash. Legal Found., 524 U.S. 156, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998) (interest earned on client trust funds held by lawyers in "Interest on Lawyers Trust Account" (IOLTA) is a property right of the clients, cognizable under the Takings Clause). Of course, nothing in

 36    DEAN v. LEHMAN    Feb. 2001 
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Schneider precluded the California Department of Corrections from placing inmate funds in noninterest bearing accounts.

RCW 72.09.111(l)(d) explicitly provides that inmates are entitled to "accrued interest" upon their release. Even if the statute had been silent on this issue, the inmates claim might still have merit under Schneider if the DOC had collected interest on the accounts. Under Schneider, the seizure of earned interest would be an unconstitutional taking. See Tellis, 5 F.3d at 1316 (fact that accumulated interest was used for recreation and law library expenses is not "just compensation"). As with all other community property, the Class has an interest in these funds.

Under the facts of this case it is clear the DOC violated RCW 72.09.lll(l)(d) by failing to make "accrued interest . . . available... to an inmate at the time of his or her release." Since the interest was earned, it belonged to the inmates. To the extent the principal is a community asset, the interest also belonged to the Class members. We hold that the DOC violated RCW 72.09. lll(l)(d) by failing to provide inmates (and Class members) with "accumulated interest" on their inmate savings accounts and order that accrued interest be credited to the accounts of those inmates currently incarcerated and returned to those who have already been released.

CONCLUSION

We hold that the Class has standing to challenge the validity of RCW 72.09.480 by virtue of its community property interest in funds received by inmates. We further hold that the mandatory deductions are constitutional under the Tax Uniformity Clause and the Takings Clause, but we order the return of previously seized interest on the inmate savings accounts, which the inmates were entitled to upon release pursuant to RCW 72.09.111(l)(d).

SMITH, IRELAND, AND BRIDGE, JJ., AND GUY AND TALMADGE, JJ. Pro Tem., concur.

 Feb. 2001     DEAN v. LEHMAN    37 
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ALEXANDER, C.J. (dissenting) - Just as "a rose [b]y any other name would smell as sweet," 11 a tax has distinctive features that cannot be obscured merely by giving it another name. Because the majority determines that the state's confiscation of 35 percent of all money that an inmate's spouse sends to the inmate for minor necessities is not what it is, a tax, but rather what it calls a "recoupment provision," I dissent.

In 1995, the Legislature adopted RCW 72.09.480. This statute purports to authorize the Department of Corrections (DOC) to subject "any funds" received by an inmate, "in addition to . . . wages," to certain deductions which are set forth in RCW 72.09.lll(l)(a). 12 RCW 72.09.480(2). As a practical matter, this means that every time the spouse of a prison inmate, like the Respondent Suzanne Dean, transmits money to the inmate for food, toiletries, or basic necessities, the State intercepts the transmission and deducts 35 percent of the sum so that it can then distribute it pursuant to RCW 72.09.111(l)(a) as follows:

(i) Five percent to the public safety and education account for the purpose of crime victims' compensation;

(ii) Ten percent to a department personal inmate savings account; and

(iii) Twenty percent to the department to contribute to the cost of incarceration.

Significantly, the portion of the funds ostensibly deducted for the purpose of contributing to the "cost of incarceration" does not actually go to underwrite the actual cost of providing the inmate with shelter, food, clothing, transportation or the like. Rather, these sums are deposited into a dedicated account to be used only for "enhancing and


11 WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2.

12 RCW 72.09.111 permits the Secretary of the DOC to deduct from the "gross wages" or "gratuities" of an inmate working in correctional industries work programs certain minimum deductions, depending upon the amount of the wage or gratuity. Subsection (l)(a) of RCW 72.09.111 sets forth the deductions for inmates earning "class I gross wages."


 38    DEAN v. LEHMAN    Feb. 2001 
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maintaining correctional industries work programs." RCW 72.09.111(3).

In my view, the State's blatant confiscation of 35 percent of the money that an inmate receives from his or her spouse is a tax. Although the majority does not share that view, it apparently does agree that the central issue before us is whether or not this deduction from the community property of an inmate and the inmate's spouse is a tax. Resolution of that issue is critical because if the deduction is a tax on property then, for reasons I set forth hereafter, it runs afoul of article VII, section 1, of the Washington Constitution, which requires that taxes be uniformly applied.

As the majority correctly observes, a tax is:

an enforced contribution of money, assessed or charged by authority of sovereign government for the benefit of the state or the legal taxing authorities[,] [and i]t is not a debt or contract in the ordinary sense, but it is an exaction in the strictest sense of the word.

Majority at 26 (quoting State ex rel. City of Seattle v. Dep't of Pub. Utils., 33 Wn.2d 896, 902, 207 P.2d 712 (1949)). On the other hand, if a governmental "charge is related to a direct benefit or service, it is generally not considered a tax or assessment." Majority at 26 (quoting King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 833, 872 P.2d 516 (1994)).

In reaching its conclusion that the above-described deduction is not a tax, the majority purports to apply the three-part test we set forth in Covell v. City of Seattle, 127 Wn.2d 874, 879, 905 P.2d 324 (1995), for determining if a charge by a government is a tax or regulatory fee. There we said that the determination is made after consideration of three factors, to wit: (1) whether the primary purpose of the charge is to raise revenue or to regulate; (2) whether the money that is collected from the charge is allocated only to the authorized regulatory purpose; and (3) whether there is a direct relationship between the fee charged and the service received by those who pay the fee or between the fee charged and the burden produced by the fee payer. Id.

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In concluding that the charge levied here by DOC is not a tax, the majority reasons that the primary purpose behind the deduction is not to raise revenue but to benefit "a small group of individuals, the inmates themselves and crime victims." Majority at 27. As additional support for its conclusion it relies on the fact that the "deductions authorized by the statute may not exceed the cost of the inmate's incarceration, thus tying the deductions to the actual benefit received or burden imposed by the inmate." Majority at 28.

After applying the Covell factors, I reach an entirely different conclusion than does the majority. The conclusion I reach-that the charge is a tax-is, in my view, compelled by the fact that the charge here is totally unrelated to the regulation of an inmate's conduct. Although the majority says that the purpose of the charge is not to raise revenue, it makes no effort to tell us how the charge is tied to regulating an inmate's conduct. Its failure to do so is entirely understandable since it is readily apparent that the primary purpose of the deduction is not to regulate but, rather, to generate revenue for the crime victims' compensation fund and the DOC inmate work program. The fact that these programs benefit a discrete group of citizens, rather than the entire populace, does not make the charge any less a tax.

Even if I accepted the majority's dubious premise that a governmental charge is not a tax if it is tied to the benefit received or the burden caused by a group within society as a whole, I would still reach the same conclusion. I say that because the contribution that the State enforces here by statute benefits all of the citizens of the state. While one can fashion an argument that an inmate and his or her spouse benefit from the inmate's imprisonment, it is apparent that Washington's prison system is maintained principally to "ensure the public safety" and "punish the offender." RCW 72.09.010(1), (2). Prisons, after all, are not resorts where persons choose to be. Rather, they are houses of detention, punishment, and, hopefully, rehabilitation. As such, prisons

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provide more than an incidental benefit to the whole public by punishing convicted criminals and separating them from the law-abiding public. This has the effect of promoting public safety and deterring misconduct by others. If an inmate becomes rehabilitated during his or her stay in prison, the citizenry benefits even more. Because the State is the primary beneficiary of the prison system, the costs associated with the incarceration of the inmates, who are clearly wards of the State during their imprisonment, is properly the responsibility of all of the taxpayers. It should not be the special burden of any group of individuals, within society, including the inmates and their spouses.

In this regard, I would analogize the State's prison system to our public school system. Most would readily agree that public schools benefit all of society, not just students or the parents of school age children. If the State were to legislate a seizure of a portion of every allowance that a school child receives from his parents in order to recoup the cost of educating that child, I submit that we would have little difficulty in concluding that this was a tax on the students and parents masquerading as a recoupment provision.

It is even more obvious that the portion of the deduction that goes to crime victims does not directly benefit the inmates. 13 The same can be said of the amount that goes to underwrite inmate work programs, programs in which an inmate is not assured of being a participant. While a portion of the deduction goes to the inmate's savings account, it is beyond dispute that none of the 35 percent that is deducted by the State is used to regulate inmate


13 RCW 7.68.070. Even if we were to assume that an inmate benefits in a moral sense from contributing to a fund that benefits the victim of a crime that he or she perpetrated, it is notable that victims of crimes are entitled to receive money from this fund only if they have suffered a physical injury at the hands of a criminal. RCW 7.68.020(3) (For purposes of compensating crime victims, victim means "a person who suffers bodily injury or death as a proximate result of a criminal act of another person . ..."). Many, if not most, persons who are housed in our state prisons have not been found to have physically injured the crime victim. Indeed, in many instances the victim is not an individual, but rather, the general public.


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conduct or recover money expended for the fundamental costs of incarceration.

Although the majority determines that the deduction with which we; are here concerned is not a tax, it never explicitly says it is a regulatory fee either, noting simply that "[i]t is difficult... to pigeonhole these charges." Majority at 28. Faced with this difficulty, it concludes that the charge is a "recoupment provision" akin to a direct "user fee." Majority at 28, 29.

This holding is inexplicable in light of the majority's acknowledgement that the "funds collected by the DOC are not directly allocated to paying for an inmate's 'shelter, food, clothing, [and] transportation.' " Majority at 30. The majority is apparently not troubled by this concession, concluding that as long as the funds "are expended within the criminal justice system, upon which the inmate has placed a burden," it is not a tax. Majority at 31. Under this theory, would the majority conclude that a portion of the confiscated money could be devoted to salaries of prosecuting attorneys, sheriffs, or judges since those are expenditures within the criminal justice system? I think not. The plain fact is that despite the majority's effort to justify this hefty charge against the community property of the inmate and his or her spouse as some sort of recoupment provision, or user fee, it is a tax.

Faced with what I submit is an inescapable conclusion that this statutorily mandated deduction is a tax under the Covell test, the next question becomes this: is the tax uniformly applied? If it is not, it violates article VII, section 1, of the Washington Constitution. Because, as I have noted above, the majority determined that the deduction was not a tax and thus did not implicate the tax uniformity requirement, it did not delve into this issue. Majority at 26. I will do so very briefly.

In my view, the trial court correctly held that RCW 72.09.480 violated the taxing uniformity requirement of the Washington Constitution. That provision, article VII, section 1, provides as follows:

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All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word "property" as used herein shall mean and include everything, whether tangible or intangible, subject to ownership.

While this provision "applies only to property taxes," Cosro, Inc. v. Liquor Control Bd., 107 Wn.2d 754, 761, 733 P.2d 539 (1987), the term "property" is "as broad and comprehensive as may well be imagined." Am. Smelting & Ref. Co. v. Whatcom County, 13 Wn.2d 295, 302, 124 P.2d 963 (1942). Accordingly, it includes items such as "income," Culliton v. Chase, 174 Wash. 363, 374, 25 P.2d 81 (1933) (property is " 'everything, whether tangible or intangible, subject to ownership.' ") and Jensen v. Henneford, 185 Wash. 209, 217, 53 P.2d 607 (1936) ("income is property, and that an income tax is a property tax"). See also Apartment Operators Ass'n of Seattle, Inc. v. Schumacher, 56 Wn.2d 46, 47, 351 P.2d 124 (1960) (rental income held to be property). In my view, money that is derived from one's income is property as much as is the income.

I conclude that the tax here is not uniformly applied because the obligation to pay it falls only on the community property of inmates and their spouses. When a person who is not married to an inmate transmits community money to his or her spouse to enable that person to purchase personal items, no tax is collected under this statute. Thus, the tax is not uniformly applied on the same class of property. This inconsistency in the taxation scheme goes against the basic notion behind the Uniformity Clause that the burdens of taxation should be uniformly applied among members of the same class. Bond v. Burrows, 103 Wn.2d 153, 157, 690 P.2d 1168 (1984).

In reaching the conclusion that this statute imposes a tax that is not uniformly applied, I have strived not to be influenced by any considerations of public policy. Whether or not the statute in question is good public policy is a question for the Legislature to decide in its wisdom - not for the courts. I must confess, though, that I have scratched my head more than once trying to determine what public

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good is promoted by a statute that essentially authorizes the seizure of 35 percent of every cent that a prison inmate's spouse sends to the inmate. While I do not know this fact for certain, I feel comfortable believing that many, if not most, of the spouses of inmates are low income individuals and that some may even be beneficiaries of forms of public assistance. Consequently, the money they send to the prisons may not be easy for them to acquire. When the State takes almost half of this money from the grasp of the inmate, the needs of the inmate will often have to be met by another contribution from the spouse. These spouses, who are mostly women, must then dig deep again if they are to offset the State's cut. In doing so they undoubtedly deprive themselves of funds that could be devoted to the purchase of necessities for them and their children. Such a scheme strikes me as not only unwise but unfair.

I would affirm the trial court.

JOHNSON AND SANDERS, JJ., concur with ALEXANDER, C.J.

[No. 68155-4. En Banc.]

Argued June 20, 2000. Decided February 8, 2001.

NORTH PACIFIC INSURANCE COMPANY, Respondent, v. ROBERT E. CHRISTENSEN III, et al., Petitioners.

[1] Insurance - Construction of Policy - Question of Law or Fact. The interpretation of insurance policy language is a question of law.

[2] Insurance - Construction of Policy - Meaning of Words - Undefined Terms - Reasonable Interpretation - Average Purchaser. An undefined term in an insurance policy is given a fair, reasonable, and sensible construction as would be given by an average insurance purchaser.

[3] Insurance - Construction of Policy - Meaning of Words - Ordinary Meaning - Resort to Dictionary. The terms of an insurance policy are understood in their plain, ordinary, and popular

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sense as may be determined by reference to a standard English language dictionary.

[4] Insurance - Underinsured Motorist - Definitions - "Operator" of Motor Vehicle - In General. For purposes of an underinsured motorist policy under which the insurer agrees to pay damages that the insured becomes legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by the insured and caused by an accident, an "operator" is a person who is in actual physical control of a vehicle.

[5] Insurance - Underinsured Motorist - Definitions - "Operator" of Motor Vehicle - Passenger Who Grabs Steering Wheel. A passenger who grabs the steering wheel of a moving car can qualify as the "operator" of the car for purposes of an underinsured motorist policy under which the insurer agrees to pay damages that the insured becomes legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by the insured and caused by an accident.

MADSEN, J., ALEXANDER, C.J., JOHNSON, J., AND TALMADGE, J. Pro Tem., concur in the result by separate opinion; CHAMBERS AND OWENS, JJ., did not participate in the disposition of this case.

Nature of Action: An insurer sought a declaration that a motor vehicle passenger who grabbed the vehicle's steering wheel, which caused an accident injuring the insured, was not the "operator" of the vehicle for purposes of the insured's underinsured motorist coverage.

Superior Court: The Superior Court for King County, No. 97-2-19770-8, Robert H. Alsdorf, J., on March 12, 1998, entered a summary judgment in favor of the insured.

Court of Appeals: The court reversed the judgment and granted judgment in favor of the insurer at 95 Wn. App. 447 (1999), holding that the passenger's grabbing the steering wheel did not make the passenger the "operator" of the motor vehicle for purposes of the insured's underinsured motorist coverage.

Supreme Court: Holding that the passenger assumed physical control of the motor vehicle by grabbing its steering wheel and was the "operator" of the vehicle for purposes of the insured's underinsured motorist coverage, the court reverses the decision of the Court of Appeals and reinstates the judgment.

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Steven T. Russell (of Koelker & Swerk), for petitioners.

Robert N. Gellatly, Jr., and Jennifer S. Divine (of Helsell Fetterman, L.L.P.), for respondent.

IRELAND, J. - In this case, we must determine whether a passenger who causes an accident by unexpectedly grabbing the steering wheel of a motor vehicle is the operator of that vehicle for purposes of underinsured motorist (UIM) coverage. We hold that, under the facts of this case, the passenger assumed physical control of the vehicle. Therefore, the passenger was the operator of the vehicle for purposes of the UIM provisions of this particular policy.

FACTS

Robert Christensen, a 16-year-old student, was driving his family's car in traffic when Christensen's high school friend, Christopher Chase, reached over from the front passenger seat and grabbed the steering wheel. Chase caused the car to swerve across the center line and to collide with an oncoming vehicle. 1 Christensen and others were injured in the collision. Chase was found guilty in juvenile court of vehicular assault.

At the time of the collision, Christensen was insured under a North Pacific Insurance Company (North Pacific) automobile policy issued to his parents, James and Pamela Farmer. The policy provided liability and underinsured motorist coverage. The limits of the liability coverage were exhausted to satisfy the claims of others injured in the accident.


1 According to the backseat passenger, Waldemar Tarasewicz, before Chase grabbed the steering wheel, Christensen had been swerving the car back and forth "trying to scare us." Clerk's Papers (CP) at 93. Christensen admitted swerving, but said that he stayed in the lane and "had total control." CP at 118. Tarasewicz said the car was going straight when Chase grabbed the wheel.


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Christensen submitted a UIM claim under this policy seeking to recover damages for his injuries on the grounds that Chase was the "operator" of the vehicle at the time of the collision, and therefore was an underinsured motorist.

PROCEDURAL HISTORY

Christensen requested arbitration of his UIM claim as an insured under the UIM coverage of the Farmers' North Pacific policy. North Pacific stated that Christensen "was insured under the policy by virtue of being a family member of the named insured." Clerk's Papers (CP) at 161. However, North Pacific denied coverage on the basis that Chase was neither the owner nor operator of the car in which he was traveling at the time of the accident. North Pacific asserts that Chase's action of grabbing the steering wheel did not make him an "operator" of the vehicle under the insuring clause of the North Pacific policy.

Christensen continued to assert a right to coverage. North Pacific then filed a declaratory judgment action in King County Superior Court, seeking a declaration that there was no coverage of Christensen's UIM claim under North Pacific's policy and that North Pacific, therefore, had no duty to pay benefits with respect to the claim.

Both parties moved for summary judgment. The trial court granted Christensen's motion, holding that Christensen's UIM claim was covered under North Pacific's policy. The trial court held that Chase was the operator of the vehicle, "even though Chase was not operating the vehicle with permission or with full control, or apparently with any common sense." CP at 215. The trial court entered judgment granting attorney fees and costs to Christensen pursuant to Olympic Steamship Co. v. Centennial Insurance Co., 117 Wn.2d 37, 811 P.2d 673 (1991). 2

North Pacific appealed, arguing that the plain and unambiguous meaning of "operator" within the terms of its


2 The parties agree that Christensen's award of fees and costs is dependent upon how the insurance coverage issue is resolved on appeal.


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policy provision is the driver, and a passenger who grabs the steering wheel is merely interfering with the driver's operation of the car. The Court of Appeals agreed, reversed the trial court, and remanded to that court to grant summary judgment for North Pacific. N. Pac. Ins. Co. v. Christensen, 95 Wn. App. 447, 453-54, 975 P.2d 552 (1999).

This Court granted Christensen's petition for review of the Court of Appeals' decision.

ANALYSIS

Standard of Review

When reviewing an order for summary judgment, an appellate court engages in the same inquiry as the trial court. Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party. Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992). Questions of law are reviewed de novo. Mountain Park Homeowners Ass'n, 125 Wn.2d at 341.

In the instant case, no material facts are in dispute. Thus, this Court decides whether a passenger who grabs the steering wheel is the "operator" of the vehicle for purposes of North Pacific's UIM policy language purely as a matter of law.

Statutory and Insurance Policy Language

Washington's UIM statute requires automobile insurance policies to insure "against loss resulting from liability imposed by law for bodily injury, death, or property damage, suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle. , .." RCW 48.22.030(2). Such policies must provide coverage "for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of

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underinsured motor vehicles, hit-and-run motor vehicles, and phantom vehicles because of bodily injury, death, or property damage . . .." Id. (emphasis added).

The UIM provision of the North Pacific policy reads as follows:

We will pay damages which an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of:

1. Bodily injury sustained by an insured and caused by an accident.

CP at 129 (emphasis added). 3

As is shown above, North Pacific's policy language tracks the UIM statute. However, neither the statute nor the provision at issue defines the term "operator." Consequently, the case turns on the definition of this term.

The Meaning of "Operator"

[1, 2] The interpretation of insurance policy language is a question of law. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 480, 687 P.2d 1139 (1984). Undefined terms in an insurance policy "must be given a fair, reasonable, and sensible construction as would be given by an average insurance purchaser." Mid-Century Ins. Co. v. Henault, 128 Wn.2d 207, 213, 905 P.2d 379 (1995).

[3] "The terms of the policy must be understood in their plain, ordinary, and popular sense." Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 73, 549 P.2d 9 (1976). "To determine the ordinary meaning of an undefined term, our courts look to standard English language dictionaries." Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990).

The Court of Appeals, applying the rule that courts may rely on the dictionary to determine the ordinary meaning of an undefined term, looked to WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1581 (1969):


3 The boldfaced terms are defined in the definitions section of the policy.


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"Operator" is defined as "one that produces a physical effect or engages himself in the mechanical aspect of any process or activity as ... [a] driver." A driver is "a person in actual physical control of a vehicle," and control means the "power or authority to guide or manage."

Christensen, 95 Wn. App. at 451-52 (footnotes omitted) (alteration in original).

The Court of Appeals then followed by stating that an operator is "the person who controls all the critical functions of operating a car-the ignition, accelerator, brake, and steering." Id. at 452. However, an "operator" is not solely the person occupying the driver's seat, but rather is anyone who is "in actual physical control of a vehicle," having the "power to guide" it. The appellate court inserted unwarranted restrictions based on its own perception of what the "average insurance consumer" would understand. Id. While the appellate court correctly relies on the dictionary definitions, those definitions contain no suggestion that an "operator" must be a single person who is in command of all the controls of a car.

The flaw in the appellate court's analysis is also apparent in its subsequent observation:

While we agree that one who grabs the steering wheel usurps for an instant one part of operating a car, he is at most interfering with the driver's ability to completely control the car and is not in actual physical control of it.

Id. at 452.

The dictionary definitions do not impose limits on the "purpose, extent, or duration" of an operator's control over a vehicle. The appellate court erroneously includes restrictions as to purpose (one who "usurps" the wheel is "interfering with the driver's ability to completely control the car"), extent ("all the critical functions of operating a car"), and duration ("for an instant"). The ordinary meanings do not support such restrictions.

North Pacific argues that the customary meaning of a car's operator is the driver. While this meaning may be appropriate in common situations, Christensen responds

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that automobile insurance should also "afford protection for the broad range of unusual events that can occur to injure people during the operation of motor vehicles." Br. of Resp't at 6.

From a practical standpoint, narrowing the scope of "operator" to a single person who is in sole command of all the controls of a vehicle does not sufficiently address the real-life situations that arise while driving. Auto mishaps rarely result when drivers are in total control of all of the functions of their cars. Instead, accidents occur when there are failures to maintain complete control, including when a passenger unexpectedly grabs the steering wheel. Accidents can happen almost instantaneously-when only one of the car's critical controls is compromised.

Here, Chase did not merely interfere with Christensen's driving-he took actual physical control of the car himself. When Chase suddenly grabbed the steering wheel, he became the operator of the vehicle in which he had been a passenger. Although Christensen was sitting in the driver's seat, he became powerless to control the car. 4 Chase assumed control of the steering mechanism long enough to cause the collision and resulting injuries.

[4, 5] For purposes of North Pacific's UIM policy provision, the term "operator" should be defined as "a person who is in actual physical control of a vehicle." 5 "Operator" reasonably includes a passenger who grabs the steering wheel of a moving car.


4 As North Pacific states in its complaint: "The accident occurred when Christopher Chase, a passenger sitting in the right front seat of the vehicle, momentarily grabbed and/or interfered with the steering wheel, causing defendant Christensen to lose control, cross the center line, and collide with another vehicle." CP at 8 (emphasis added).

5 This construction of the term "operator" corresponds with the definition found in the Motor Vehicle Code, Title 46 RCW:" 'Operator or driver" means every person who drives or is in actual physical control of a vehicle." RCW 46.04.370 (emphasis added). This meaning is also consistent with public policy: "RCW 48.22.030 [the UIM statute] is to be liberally construed in order to provide broad protection against financially irresponsible motorists." Finney v. Farmers Ins. Co., 92 Wn.2d 748, 751, 600 P.2d 1272 (1979).


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This interpretation is consistent with two Washington cases that have dealt with "wheel grabbing." 6

In the first case, Viking Insurance Co. v. Zinkgraf, 47 Wn. App. 645, 737 P.2d 268 (1987), Mr. Zinkgraf was a front seat passenger who "unexpectedly grabbed the steering wheel causing the car to leave the road and strike a tree." Id. at 645-46. The driver sued Zinkgraf for personal injuries and property damage. In order for the driver to recover under Zinkgraf s automobile insurance policy, Zinkgraf had to be found to have used or driven the car with the owner's permission. Although coverage was denied due to lack of permission, the court's analysis of "using" the car is consistent with our definition of "operating": "The term 'use' in an automobile insurance policy has been defined as '[a]ny exercise of control over the vehicle . . . regardless of its purpose, extent, or duration.' " Id. at 647 (quoting 12 GEORGE J. COUCH, COUCH CYCLOPEDIA OF INSURANCE LAW 45:64 (Ronald A. Anderson & Mark S. Rhodes, 2d rev. ed. 1981)).

The facts of the second case, In re Arambul, 37 Wn. App.

805. 683 P.2d 1123 (1984), are remarkably similar to the case at issue, [n this second case, the teenage passenger, Rose Arambul, caused a fatal accident when she grabbed the steering wheel and caused the car she was riding in to cross the center line and collide with an oncoming car. Id. at

806. Miss Arambul was charged with negligent homicide by means of a motor vehicle under former RCW 46.61.520 (1975); the statute applied to persons who caused death


6 Courts in other states have split as to whether a passenger who grabs the steering wheel is an "operator." Some jurisdictions hold that a passenger who grabs the steering wheel is an operator. See Gibbs v. Nat'1 Gen. Ins. Co., 938 S.W.2d 600 (Mo. Ct. App. 1997); United States Fire Ins. Co. v. United Serv. Auto. Ass'n, 772 S.W.2d 218 (Tex. Civ. App. 1989); United States Fid. & Guar. Co. v. Hokanson, 2 Kan. App. 2d 580, 584 P.2d 1264, 1267 (1978) ("[W]hen a person takes control of a moving vehicle, even though for only an instant, that person has gained control over it and is operating it within the normal definition and understanding which ordinary laymen would give to an insurance policy."); State Farm Mut. Auto. Ins Co. v. Larsen, 62 I11. App. 3d 1, 377 N.E.2d 1218, 18 I11. Dec. 582 (1978). Others hold that the passenger is interfering with the vehicle's operation. See Harrison v. Tomes, 956 S.W.2d 268 (Mo. 1997); Farm Bureau Gen. Ins. Co. v. Riddering, 172 Mich. App. 696, 432 N.W.2d 404 (1988); West Bend Mut. Ins. Co. v. Milwaukee Mut. Ins. Co., 384 N.W.2d 877 (Minn. 1986); State Farm Mut. Auto. Ins. Co. v. White, 60 Or. App. 666, 655 P.2d 599 (1982).


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" 'by the operation of any vehicle in a reckless manner or with disregard for the safety of others.' " Id. at 807 (quoting former RCW 46.61.520). The statutory definition of "operator," for purposes of the crime, is " 'every person who drives or is in actual physical control of a vehicle.' " Id. (quoting RCW 46.04.370).

Miss Arambul argued that she was not the operator of the vehicle "because she had no control of the gas, brake, or gearshift, and only split-second contact with the steering wheel." Id. at 807.

After noting that the use of the disjunctive "or" in the statutory language indicates that "operator" is intended to include persons who are not necessarily drivers, the Arambul court reasoned as follows:

The ordinary meaning of the terra "actual physical control" is "existing" or "present bodily restraint, directing influence, domination or regulation." Miss Arambul's acts fall within this definition.... The fact Miss Arambul did not have access to the accelerator or brakes did not affect her "influence, dominion, or regulation" of the vehicle. The momentary duration of this dominion is insignificant; for that instant in time she directed the path of the automobile and caused the death of another.

Id. at 808 (citations omitted).

The court held "that Miss Arambul's momentary grabbing of the steering wheel of the vehicle in which she was riding comes within the ordinary meaning of the term 'actual physical control.' " Id. at 808.

In the instant case, Chase's momentary control of the steering wheel was likewise sufficient to cause Christensen's car to cross the center line, to collide with an oncoming car, and to result in injuries.

It is argued that the statutory definition of "operator" should be disregarded because it was enacted for purposes of determining criminal conduct, not insurance coverage. Rather, the insurer would have us resort to guessing what the "average insurance consumer" would understand "operator" to mean. This argument is weak. A written defini-

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tion by statute iii clearly superior to supposition concerning the "average insurance consumer's" understanding. The fact that the definition is for purposes of a criminal statute actually enhances its value, for a person's liberty may depend upon it.

CONCLUSION

In the context of this case, the term "operator" is not ambiguous; it is merely undefined by North Pacific in its policy. When the term is given its usual and ordinary meaning according to dictionary definitions, an "operator" is a person who is in "actual physical control" of a vehicle. This meaning is also consistent with other Washington cases, the Motor Vehicle Code, and public policy.

While the passenger, Chase, did not have sole and continuous control of all the car's functions, he was in "actual physical control" of the steering mechanism long enough to cause a collision and resulting injuries. Therefore, Chase is an "operator" of Christensen's vehicle for purposes of North Pacific's UIM policy provisions.

We reverse the Court of Appeals' ruling and reinstate the trial court's order granting Christensen's summary judgment motion and its judgment granting fees and costs to Christensen. We award attorney fees on appeal to Christensen pursuant to RAP 18.1.

SMITH, SANDER;, and BRIDGE, JJ., AND GUY, J. Pro Tem., concur.

MADSEN, J. (concurring) - Although I agree with the majority's result, I disagree with its analysis. First, the majority concludes that the term "operator" in the North Pacific Insurance Company policy is not ambiguous. I disagree. Second, the majority states that using a criminal statutory definition of the term "operator" is superior to determining the meaning according to the average consumer of insurance. However, the principle is well settled

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that insurance terms should be construed in accord with the average insurance purchaser's understanding of the term. For these reasons, I concur only in result.

As noted, the majority concludes the term "operator" is unambiguous and means "a person who is in actual physical control of a vehicle." Majority at 50. This is a dictionary definition of "driver," see WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 692 (1993), and is also the definition of "operator" found in the Motor Vehicle Code, specifically in RCW 46.04.370. See majority at 50 n.5.

Turning first to the majority's reliance on the Motor Vehicle Code, there is no indication that the Legislature intended that the definition in the Motor Vehicle Code is to be applied to insurance policy provisions respecting underinsured motorist coverage. Because that definition accords with the dictionary definition of driver, however, the more important point to be made is that in discussing the statutory definition the majority completely departs from the essential rule for construing insurance policy language. The majority first pays lip service to this rule, i.e., that policy language is to be construed as " 'an average insurance purchaser' " would construe it. Majority at 48 (quoting Mid-Century Ins. Co. v. Henault, 128 Wn.2d 207, 213, 905 P.2d 379 (1995)). Then, disregarding this well-settled principle of insurance contract construction, the majority calls the insurer's argument based upon this principle "weak" and says that "[a] written definition by statute is clearly superior to supposition concerning the 'average insurance consumer's' understanding." Majority at 52-53. The majority is internally inconsistent and inappropriately dismisses the established rule of law. Its analysis injects needless uncertainty into other insurance policies having terms that must be construed, because, while the statutory definition here may reflect the common understanding, that may not be true in other cases.

As to the majority's conclusion that "operator" is unambiguous, I would instead apply the following reasoning. An insurance policy should be given a "fair, reasonable, and

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sensible construction as would be given to the contract by the average person on purchasing insurance." Kitsap County v. Allstate Ins. Co. 136 Wn.2d 567, 575, 964 P.2d 1173 (1998) (quotation marks and citations omitted). Undefined terms in a policy are to be given their " 'plain, ordinary, and popular' " mean: ng. Id. at 576 (quoting Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1990)).

The term "operator" is undefined. As the Court of Appeals observed, the ordinary definition of " '[o]perator' " is " 'one that produces a physical effect or engages himself in the mechanical aspect of any process or activity as ... [a] driver.' " N. Pac Ins. Co. v. Christensen, 95 Wn. App. 447, 451-52, 975 P.2d 552 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1581 (1969)), review granted, 139 Wn.2d 1001, 989 P.2d 1141 (1999). In relevant part, driver means, as noted, one in actual physical control of a vehicle. These definitions do not, in and of themselves, resolve the meaning of the term "operator," because even under these definitions the term is subject to two reasonable interpretations in the context here:

In a narrow sense, the term may be limited to the primary driver and exclude a passenger who interferes with the driver's appropriate cortrol and management of a vehicle by grabbing the steering wheel. But the term may also be interpreted more broadly to include any volitional act of control that [a]ffects the movement of a vehicle, such as when a passenger intentionally grabs the steer ng wheel without the driver's consent.

Harrison v. Ton.es, 956 S.W.2d 268, 269 (Mo. 1997). Both the narrow and broad interpretations fall within the standard dictionary definition. "Because there may be degrees of control over a vehicle's movement, ambiguity creeps into the term 'operated by'. ..." W. Bend Mut. Ins. Co. v. Milwaukee Mut. Ins. Co., 384 N.W.2d 877, 879 (Minn. 1986). As the majority notes, courts have in fact split on the meaning of the (Minn "operator." Majority at 51 n.6.

Where ambiguity exists in an insurance policy, the court's goal is to interpret and enforce the contract as the parties

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intended. PUD No. I v. Int'l Ins. Co., 124 Wn.2d 789, 799, 881 P.2d 1020 (1994). The contract is viewed as a whole, and its subject matter and objective are considered, as well as the circumstances surrounding the making of the contract, subsequent conduct of the parties, and the reasonableness of their respective interpretations. Id. If ambiguity remains, then the ambiguity is resolved most favorably to the insured. Id.

Here, the ambiguity remains unresolved. Where ambiguity remains in an inclusionary clause, liberal construction in favor of coverage is given where possible. Ross v. State Farm Mut. Auto. Ins. Co., 132 Wn.2d 507, 515-17, 940 P.2d 252 (1997). Under this rule, "operator" includes the wheel-grabbing passenger. The circumstances involve a volitional act of control that affects the movement of the vehicle.

This conclusion is in harmony with the underinsured motorist statute. The underinsured motorist provisions do not provide any specific indication of the scope of coverage where underinsvtred operators are involved, and do not define "operator." However, RCW 48.22.030 is to be liberally construed to provide broad protection from motorists who do not carry sufficient liability insurance. Touchette v. N.W. Mut. Ins. Co., 80 Wn.2d 327, 332, 494 P.2d 479 (1972).

I would hold that the term "operator" as used in the policy language is ambiguous and should be construed in favor of coverage.

The majority's attempt to bolster its approval of the statutory definition in the Motor Vehicle Code is unconvincing. The majority suggests that "[t]he fact that the definition is for purposes of a criminal statute actually enhances its value, for a person's liberty may depend upon it." Majority at 53. It is a little difficult to respond to this statement; however, I believe the court's goal in determining the meaning of an insurance term is not to engage in a metaphysical weighing of definitional values, but rather to ascertain what the term is intended to mean in the contract

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in light of the understanding of the average purchaser of insurance.

I concur in the result.

ALEXANDER, C.J., JOHNSON, J., AND TALMADGE, J. Pro Tem., concur with MADSEN, J.