Opinion
No. 55773-4-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 00-2-04749-3, Arden Bedle, J. Pro Tem., entered January 11, 2005.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Counsel for Respondent(s), Douglas Wayne Carr, Attorney at Law, Atty General's Ofc, PO Box 40116, Olympia, WA 98504-0116.
Sara J. Olson, Attorney Generals Office, PO Box 40116, Olympia, WA 98504-0116.
Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick, C.J., and Grosse, J.
Thomas Baja is a military veteran who is now a permanent inmate of the Washington Department of Corrections (DOC). He challenges deductions taken from his military pension as required by state law. The superior court upheld the deductions. Baja provides no grounds for reversal, and we affirm.
BACKGROUND
RCW 72.09.480(2) mandates certain deductions from moneys received by inmates in Washington state prisons:
When an inmate, except as provided in subsection (7) of this section, receives any funds in addition to his or her wages or gratuities, except settlements or awards resulting from legal action, the additional funds shall be subject to the following deductions and the priorities established in chapter 72.11 RCW:
Inmates sentenced to death or to life imprisonment without possibility of release or parole are exempted from the 10 percent deduction to a personal savings account. RCW 72.09.480(7). Though Baja consistently asserts that DOC deducts the maximum of his pension (35 percent), it appears that DOC actually deducts only 25 percent because Baja is serving a life sentence without possibility of parole for aggravated first degree murder and therefore does not have a savings account. Uncertainty as to the amount deducted does not alter our analysis of the issues.
(a) Five percent to the public safety and education account for the purpose of crime victims' compensation;
(b) Ten percent to a department personal inmate savings account;
(c) Twenty percent to the department to contribute to the cost of incarceration;
(d) Twenty percent for payment of legal financial obligations for all inmates who have legal financial obligations owing in any Washington state superior court; and
(e) Fifteen percent for any child support owed under a support order.
Thomas Baja's monthly military retirement checks are, at his direction, sent to him at DOC. DOC receives the checks and deposits the amount into Baja's inmate trust account, deducting a percentage of the funds as required by the statute.
Baja, on his own behalf and for a class of similarly situated inmates, filed this action seeking declaratory and injunctive relief as well as disgorgement of funds. He alleged the deductions constituted an unconstitutional taking and violated RCW 6.15.020, which protects federal pensions against seizure by legal process. The trial court dismissed the claims on summary judgment. Baja appeals from the dismissal of his statutory claim.
RCW 6.15.020(2) provides: 'Unless otherwise provided by federal law, any money received by any citizen of the state of Washington as a pension from the government of the United States, whether the same be in the actual possession of such person or be deposited or loaned, shall be exempt from execution, attachment, garnishment, or seizure by or under any legal process whatever, and when a debtor dies, or absconds, and leaves his or her family any money exempted by this subsection, the same shall be exempt to the family as provided in this subsection.'
The court dismissed the takings claim with prejudice. Baja does not assign error to that ruling.
DISCUSSION
This appeal is problematic, for several reasons. Despite appealing from the court's dismissal of his claim under RCW 6.15.020, Baja now expressly disavows any reliance upon that statute as the basis for his appeal, and has supplied this court with neither written argument nor citation to authority supporting any alleged error. We therefore do not review the trial court's ruling on that issue. See RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Farmer, 116 Wn.2d 414, 433, 805 P.2d 200, 812 P.2d 858 (1991). Baja instead predicates his appeal upon the Veteran's Administration benefits anti-alienation statute, 38 U.S.C. sec. 5301, and rests his argument entirely upon a ruling by United States District Court Judge Franklin Burgess in Wright v. Riveland, in which a class of Washington inmates challenged the same statutory deductions on a variety of constitutional bases. Baja contends Judge Burgess' ruling in Wright constitutes controlling precedent establishing that RCW 72.09.480(2) conflicts with 38 U.S.C. sec. 5301 and is therefore void to the extent it permits seizure of federal pension funds.
This argument itself presents several problems. First, Baja did not make it below, and his contention to the contrary is belied by the record. Baja's counsel made one reference to Wright in the long argument at the summary judgment hearing, but did not advance the argument he makes here. The argument was not preserved for review.
RAP 2.5(a); Price v. Farmers Ins. Co., 133 Wn.2d 490, 503 n. 13, 946 P.2d 388 (1997).
Even were we inclined to review the argument because the parties have addressed it, we are unable to do so because Baja provides neither an adequate record nor a legal foundation. No copy of Judge Burgess' order appears in the record. The order is not published, and apparently is not available through print or Internet case reporters. Nor is the text of the order included in the briefs submitted in this case. Baja's only description of the order is taken from the Ninth Circuit Court of Appeals opinion in Wright, which states that the district court (Judge Burgess) found RCW 72.09 void under 38 U.S.C. sec. 5301(a) to the extent it authorizes funds to be deducted from Veteran's Administration benefits. Wright v. Riveland, 219 F.3d 905, 910 (9th Cir. Wash. 2000). The district court judge's reasoning for that ruling is not divulged, presumably because his ruling was not appealed and so is not addressed in the Ninth Circuit's opinion. Id. We are thus left in the dark as to the scope or extent of any relevant ruling by the district judge.
State v. Valentine, 132 Wn.2d 1, 7, 935 P.2d 1294 (1997) (addressing issue not preserved for appeal because 'both parties have placed [the] issue sharply in focus both in their briefing and at oral argument').
Further, Baja denies that he seeks to give collateral estoppel effect to the ruling, and instead premises his argument upon 'stare decisis law in effect.' App. Rep. Br. at 4. But a federal district court decision is not binding precedent on a state court. See Tift v. Prof'l Nursing Servs., 76 Wn. App. 577, 583, 886 P.2d 1158 (1995).
Finally, Baja cannot demonstrate that his pension is similar to the one at issue in Wright. There is no evidence in the record that Baja receives a Veteran's Administration pension governed by 38 U.S.C. sec. 5301(a). His complaint alleges he receives a 'monthly military retirement check [from] the United States government.' Victoria Barshaw, who manages inmate accounts where Baja is incarcerated, describes the funds only as a 'federal government' pension. Clerk's Papers at 68. Nor is there evidence in the record indicating whether his pension is paid on the basis of service or disability.
Baja did not argue to the trial court or otherwise indicate that his pension is identical to or is governed by the statute at issue in Wright. He now contends his pension is in fact the same. But he offers only the conclusory argument that his benefits are protected by 38 U.S.C. sec. 5301(a) such that Wright should apply. As discussed above, this premise is not supported by the record. The "facts" required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions are insufficient. Likewise, conclusory statements of fact will not suffice. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Thus, even if we had the district court ruling before us and were persuaded by it, Baja does not establish he would be governed by it.
Baja has presented neither evidence nor legal theory suggesting error. We affirm.
GROSSE and APPELWICK, JJ., concur.