(dissenting) — By failing to set forth adequate procedural safeguards to assure that the Department of Corrections (DOC) will reasonably define what conduct is criminal, the legislature has unconstitutionally delegated its legislative authority. “The determination of crime [ ] and punishment is a legislative function.” State v. Ermert, 94 Wn.2d 839, 847, 621 P.2d 121 (1980). Although the legislature may delegate its legislative authority, it remains subject to the separation of powers doctrine. State ex rel. Schillberg v. Cascade Dist. Court, 94 Wn.2d 772, 781, *460621 P.2d 115 (1980) (holding that “[t]he separation of powers principle requires that the delegation of legislative power to the executive be accomplished along with standards which guide and restrain the exercise of the delegated authority’). The separation of powers doctrine is not violated “if the Legislature defines generally what is to be done, which administrative body is to accomplish the specified purposes, and what procedural safeguards are in effect to control arbitrary administrative action.” Diversified Inv. P'ship v. Dep't of Soc. & Health Servs., 113 Wn.2d 19, 25, 775 P.2d 947 (1989) (emphasis added). Here, the legislature has defined what is to be done and who is to do it. I dissent, however, because the legislature has failed to provide constitutionally sufficient procedural safeguards.9
When determining whether the legislature has established sufficient procedural safeguards, we have stated that “it is imperative to consider the magnitude of the interests which are affected by the legislative grant of authority.” In re Pers. Restraint of Powell, 92 Wn.2d 882, 892, 602 P.2d 711 (1979). Indeed, “ ‘the desideratum should be safeguards proportionate to the grant; the larger the grant, the greater the safeguards required.’ ” Id. (quoting City of Amsterdam v. Helsby, 37 N.Y.2d 19, 36, 332 N.E.2d 290, 371 N.Y.S.2d 404 (1975) (Fuchsberg, J., concurring)).
The majority relies on State v. Crown Zellerbach Corp., 92 Wn.2d 894, 602 P.2d 1172 (1979) where we upheld a delegation of legislative power to the departments of fisheries and game. There, the agencies were authorized to impose conditions on permits for hydraulic projects, which if violated could result in a gross misdemeanor conviction. Id. at 898, 902. We upheld that delegation because the legislature required the agencies to abide by the Administrative Procedure Act (APA), former chapter 34.04 RCW, when exercising their power. Id. at 901. Although the permit requirements at issue in Crown Zellerbach were not formally promulgated as regulations under the Washington Admin*461istrative Code, the agency was completely subject to the APA. Thus, in accordance with the APA, an individual contesting the agency’s action could seek review through the agency and the courts. See RCW 34.05.413 (providing for administrative review); RCW 34.05.570 (providing for judicial review).
Unlike the agency in Crown Zellerbach, the legislature has expressly exempted the DOC from the APA. RCW 34.05.030(l)(c). At the same time, it has granted the DOC the ability to define what acts will constitute a felony; a delegation of greater power than was the case in Crown Zellerbach, where only a gross misdemeanor could result.
The focus of our inquiry should be on the procedural safeguards placed on the DOC by the legislature. The majority cites RCW 9.94.070 and RCW 72.09.130, which it contends provide sufficient public scrutiny and judicial review. Majority at 455-56. RCW 9.94.070(2) states, in relevant part, that “ ‘[s]erious infraction’ means misconduct that has been designated as a serious infraction by department of corrections rules adopted under RCW 72.09.130.” The only applicable language in RCW 72.09.130 provides that:
(1) The department shall adopt, by rule, a system that clearly links an inmate’s behavior and participation in available education and work programs with the receipt or denial of earned early release days and other privileges. . . .
(2) Earned early release days shall be recommended by the department as a reward for accomplishment. The system shall be fair, measurable, and understandable to offenders, staff, and the public.. . .
(3) The department shall provide each offender in its custody a written description of the system created under this section.
While these statutes empower the DOC to define a “serious infraction,” they do not, as the majority asserts, establish a process “to examine the action by the DOC before it adopts specific rules or institutes any criminal proceeding.” Majority at 458. Indeed, these statutes do not contain any procedural safeguards.
*462The majority also concludes that there are adequate procedural checks because the DOC voluntarily adopted procedures similar to the APA that it uses when determining what infractions are “serious infractions.” Majority at 457-58. However, as I have observed, the focus of the inquiry is on the safeguards placed on the DOC by the legislature. While the DOC’s own policies are noteworthy, they will not solely cure a violation of the doctrine of separation of powers because the legislature must retain adequate control over the DOC, not merely hope the DOC will control itself. The legislature cannot simply give away the legislative authority to define criminal conduct, authority which is granted to it by the Washington Constitution. See Brower v. State, 137 Wn.2d 44, 54, 969 P.2d 42 (1998) (stating “[t]he legislative authority of the State is vested in the Legislature, art. II, § 1, and it is unconstitutional for the Legislature to abdicate or transfer its legislative function to others”).
The legislature, in sum, cannot have it both ways. It cannot exempt the DOC from the APA because it wants the agency free to react quickly to prison disturbances and grant the agency the far reaching power to define what conduct constitutes a felony.10 There may be situations where the legislature need not control an agency receiving delegated authority through the APA. However, in my view, when the gravity of the interests affected by the grant of power is as great as it is here, the legislature must, at a minimum, place the agency under some procedural requirements. In this instance, the legislature has not supplied any *463procedural safeguards and, consequently, I cannot join the majority opinion.
Madsen, Sanders, and Chambers, JJ., concur with Alexander, C.J.
Because RCW 9.94.070 violates the separation of powers doctrine, I do not reach Simmons’ equal protection argument.
It is not as if the DOC is without a remedy for prison misconduct. In this instance, the alleged behavior included, in part, throwing feces on staff members, destruction of DOC property, and drug possession. See majority at 453 nn. 2, 3. These actions would constitute any number of felonies such as malicious mischief in the second degree, ROW 9A.48.080, or assault in the third degree, RCW 9A.36.031. Instead of relying on these crimes, the legislature has unconstitutionally authorized the DOC to create new crimes.