McGovern v. Department of Social & Health Services

Stafford, J.

I dissent. Contrary to the majority's conclusion, it is apparent that appellants, the Department of Social and Health Services, have failed to comply with the requirements of RCW 72.64.050. Since its conversion to an adult facility, Cedar Creek Youth Camp has not been operated as an "honor camp" nor is it intended to be a "temporary branch institution". Moreover, contrary to appellant's contention, Substitute House Bill 1533, 46th Legislature (1980), Laws of 1980, ch. 167, § 1(1), p. 527, does not, and cannot, authorize appellant to operate Cedar Creek as an adult correction facility. Appropriations bills may not be used for the enactment of substantive law. Washington Educ. Ass'n v. State, 93 Wn.2d 37, 604 P.2d 950 (1980).

As properly noted by the majority, the power and authority of an administrative agency are limited to those which are expressly granted by statute or necessarily implied therein. Taylor v. Morris, 88 Wn.2d 586, 564 P.2d 795 (1977). The only existing statutory authority to support the conversion of the Cedar Creek facility into an honor camp is RCW 72.64.050. In order for that statutory authority to be properly exercised, however, it is imperative that the institution be "temporary" in nature and "in the form of honor camps". It is evident from the record that neither requirement has been met.

First, the majority has failed to note the trial court expressly found ” [t] he Cedar Creek facility is now, and has *454been since September of 1979, operated as an adult minimum security correctional facility."1 No assignment of error was made to this finding of fact, thus it must be accepted as a verity on appeal. Yakima Cement Prods. Co. v. Great Am. Ins. Co., 93 Wn.2d 210, 608 P.2d 254 (1980).

Second, there is substantial evidence in the record to support the trial court's finding that "[t]he Cedar Creek facility is not being operated on a temporary basis, and the Department of Social and Health Services intends to operate the facility indefinitely."2 Further, uncontested finding of fact No. 3 states that "Cedar Creek Youth Camp was converted to an adult facility because of increased overcrowding in adult facilities, and a drop in the juvenile population." Moreover, as noted by the majority, Cedar Creek will continue to operate as an adult facility as long as it is necessary to ease the adult facility overcrowding.

Overcrowding in the state correctional institutions is a continuing problem the solution of which is not likely to occur in the near future. If the continued operation of Cedar Creek as an adult facility depends upon a persistent overcrowding in adult facilities, there is nothing "temporary" about its operation.

It is obvious appellant was unable to give a specific date when Cedar Creek would cease to operate as an honor camp. This inability to fix the duration of the facility's operation is wholly contrary to the ordinary meaning of the word "temporary". "Temporary" is defined as "lasting for a time only: existing or continuing for a limited time: impermanent, transitory". Webster's Third New International Dictionary (1971). The majority simply ignores the common or accepted English definition and merely concludes the lack of a termination date "is not substantial evidence

*455that the facility is other than temporary under the meaning of RCW 72.64.050." The difficulty with -the majority's position is that it is dependent upon no accepted definition of the word "temporary". Indeed, the majority goes further and defers explanation of the word to appellant, thus virtually begging the question. The majority states: ” [although DSHS did not specify a date on which the facility will close, it is programmed only through 1985. The record shows none of the other camps operated by the state has a date set for closure and all have been operated for a number of years." But, the method of operating the other state honor camps is immaterial in determining whether Cedar Creek is in fact a "temporary" facility under RCW 72.64.050.

Appellant asserts that even if it failed to comply with the requirements of RCW 72.64.050, SHB 1533 authorizes operation of Cedar Creek as an honor camp. This contention is wholly without merit. SHB 1533 is nothing more than an appropriations bill designed to fund Cedar Creek for the present biennium as an adult correctional facility. The bill contains no substantive or authorizing legislation. Moreover, we have previously ruled that appropriations bills cannot be used for the enactment of substantive law. As noted in Flanders v. Morris, 88 Wn.2d 183, 191, 558 P.2d 769 (1977):

We realize that in certain instances the legislature must place conditions and limitations on the expenditures of monies, but to the extent that such conditions or limitations have the effect of modifying or amending the general law they are unconstitutional enactments. An appropriations bill may not constitutionally be used for the enactment of substantive law which is in conflict with the general law as codified.

Accord, Washington Educ. Ass'n v. State, supra; State ex rel. Washington Toll Bridge Auth. v. Yelle, 54 Wn.2d 545, 342 P.2d 588 (1959).

*456I would affirm the trial court.

Rosellini, Wright, and Brachtenbach, JJ., concur with Stafford, J.

Finding of fact No. 11.

Finding of fact No. 9.