dissenting.
My second vote would be to affirm the judgment of the district court, and utilize Judge Rowett’s opinion as the opinion for the Court, and at the same time endorse with approval the well-written opinion of the Hon. Gerald F. Schroeder in Woods v. Dept. of Health & Welfare, District Court, Ada County (1981). Even though but six years elapsed between the two opinions, I would also accord at least a limited stare decisis effect to what Judge Schroeder wrote, especially where there was no appeal — which is likely attributable to Mr. Thomas L. Puree’s respect for Judge Schroeder’s ability.
My first vote is to dismiss the appeal as moot. We are now well into the fiscal year 1987-88, and the Dept. of Health & Welfare is now operating on the money appropriated to it by the 1987 legislature. It is a reasonable presumption that the increase of appropriations generally has taken care of the problem which generated this lawsuit, and that it will not occur again. The Respondent’s brief informs us that the state made the payment mandated by law, and ordered by Judge Rowett, apparently discovering some available fiscal year 1986-1987 funds.
I see little in the proposed majority to commend it. On the contrary, I readily agree with the views of Judge Rowett and Judge Schroeder, and the excellent brief submitted by counsel representing the disadvantaged children. The members of this Court should allow themselves to be guided by the language of Judge Schroeder. We are not dealing in principles of abstract law, but with the future of three real live persons who happen to be little children:
There has unfortunately developed an adversary situation between the Department and the plaintiff, a disabled child, that threatens to lead the two litigants down the path of legal adjudication to the exclusion of a proper resolution of a very human problem____ Hopefully the interest of the fray will not cause either the child’s representatives or representatives in the Department to forget the human condition that might be dealt with properly by imaginative minds working toward the same end. Per Judge Schroeder’s Memorandum Decision and Order, p. 5.
An examination of the case of Epperson v. Howell, now 71 years of age shows no applicability.1 Likewise, I very much doubt *393that the Court should base its decision on the Gallett case — which like Epperson apparently was based on different statutory law than is now in existence. Admitting to not being knowledgeable as to how things are done in the Executive Department, in the Legislative Department, or even in the Judicial Department, I do have a general feeling that in the latter named department, specific application of funds as needed, or desired, is not subject to scrutiny by either of the other departments. If so, Gallett is inapplicable, assuming also that no single department of the three branches of the government is entitled to preferential fiscal treatment not accorded the other two.
The real basis of the majority opinion is that mandamus is not an available remedy in the circumstances here presented. Closer attention to the opening sentence of Judge Rowett’s opinion would, perhaps, have benefited those in the majority. “Plaintiffs brought suit, seeking relief in the form of an alternative writ of mandate, peremptory writ of mandate, declaratory judgement2 and injunctive relief.” Time after time, at least when the mood is right, this Court’s opinions declare that we do not exalt form over substance. Just as in the Woods case decided by Judge Schroeder, there was a genuine issue presented which had to be decided, and was decided. To turn the minor plaintiffs away on the pretext that they improperly brought a mandamus action is ludicrous. While it is an easy disposition of the appeal, it is not a fair dispensing of justice.
Attached hereto, and adopted as my views of the facts and law here involved, are the written decisions of Judge Schroeder and Judge Rowett.
APPENDIX
In the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada
John Jessen Woods, by and through his parents and next friends John Clare Woods and Janice Lee Woods, Plaintiff,
The Idaho Department of Health and Welfare;
Thomas L. Puree, individually and in his official capacity as Director of the Idaho Department of Health and Welfare;
Lawrence Coleman, individually and in his official capacity as Regional Services Manager for Region IV of the Idaho Department of Health and Welfare, Defendants.
Case No. 74139
Oct. 27, 1981.
MEMORANDUM DECISION AND ORDER
The above-named matter is an action for declaratory judgment brought pursuant to I.C. § 67-5207 of the Administrative Procedure Act whereby the plaintiff seeks a determination that a policy of the Department of Health and Welfare relative to the placement of developmentally disabled persons is invalid. The plaintiff is a developmentally disabled thirteen year old boy who seeks placement in a small, community group living facility. The Department proposes placement of the plaintiff in the Idaho State School and Hospital in Nampa. At issue is the validity of the Department policy that precludes the placement sought by the plaintiff in the absence of federal funds. A review of the record is helpful.
The plaintiff filed his complaint for declaratory judgment on January 16, 1981, alleging that he is a developmentally disabled person who requires special living *394arrangements in a small group living facility integrated into the community and that placement in the Idaho State School and Hospital would be harmful to him. He alleges that an appropriate facility, Challenge Group Home, is available but that the Department has a policy of making such placements only when the arrangement is funded under the Social Security Act. He challenges this policy of the Department.
The defendants filed their answer February 5, 1981, in which they deny the plaintiff’s claims. They assert that Challenge Group Home is not an appropriate placement within the meaning of the statute, that the plaintiff requires a more restrictive placement, that the Department’s contract with Challenge Group Home does not provide for services for the mentally retarded, and that placement of the plaintiff in that facility would preclude placement of another child. They also maintain that the statute requires appropriate services of habilitation but not the best or most expensive services, that the legislature has not appropriated funds for the placement the plaintiff seeks, and that the Department has a plan for developmental and disability services and has made services available to the plaintiff in compliance with the statute.
The plaintiff moved for summary judgment August 5, 1981, supporting his motion by affidavit. The defendants filed a cross-motion for summary judgment August 20, 1981, also supported by affidavits.
While the defendants deny in their answer that they have a policy precluding placements of the developmentally disabled in community based group homes absent federal funds, they proceed on the motions for summary judgment on the basis that the Department does in fact have such a policy. See Brief in Opposition to Plaintiff’s Motion for Summary Judgment, pp. 5, 9, 13.
“The Department has chosen to provide community residential placements for developmentally disabled persons where Title XIX federal funds are available to pay for the placements. The Department has chosen not to utilize other funds for that purpose because those funds are being utilized for other programs.” Supplement to Defendant’s Brief, p. 2.
Therefore, this court will proceed on the basis that such a policy exists as the facts and arguments indicate. Both parties have argued the underlying merits of the case; that is, where should this little boy be placed? However, the court will not reach that question at this time. The first inquiry must be whether the Department has improperly precluded itself from the consideration of alternatives by a fiscal policy that violates the mandates of the state legislature.
Idaho Code Section 39-4605 provides as follows:
Duties of the department: The department shall provide appropriate services of habilitation and rehabilitation to the eligible population of developmentally disabled, and shall consult with the state council on developmental disabilities. The department shall be the primary agency responsible for the services set forth herein, and shall:
1. Develop and prepare an annual plan for the initiation and maintenance of developmental disabilities services authorized in this chapter. Such services shall include, but not be limited to community comprehensive developmental disability services;
2. Initiate and provide services which shall include, but not be limited to, community comprehensive developmental disabilities services;
3. In order to provide services, enter into agreements with any person or persons, corporation or association, approved by the department, for the contracting of all or a portion of the costs(,) the care, treatment, maintenance, support and training of developmentally disabled persons; and
4. Provide technical assistance for state and local personnel working in the field of developmental disabilities under this chapter.
Any person, corporation or association may make application to the department *395for approval and certification of the applicant’s developmental disabilities facility. The department may either grant or deny certification or revoke certification previously granted after investigation of the applicant’s facilities, to ascertain whether or not such facilities are adequate for the health, safety, and the care, treatment, maintenance, training and support of developmentally disabled persons, in accordance with standards as set forth in rules and regulations promulgated by the Board of Health and Welfare and consistent with existing national accreditation bodies.
The defendants argue that the provisions of Idaho Code 39-4601 are merely directory, not mandatory. The Department is wrong. The language is mandatory, stating that the Department “shall” do the things set forth in the statute. It is a specification of duties. That fact has been recognized by the Department in its State Plans for Community Developmental Disabilities Programs for fiscal years 1981 and 1982 (Plaintiff’s exhibits # 1 and # 2, admitted without objection). In its plans the Department recognizes that there are mandatory duties under the act, contrary to its assertion at this time that the act is merely directory as a statement of policy by the legislature (Exhibit # 1, p. 89; Exhibit # 2, p. 69). If portions of the act are mandatory, as acknowledged by the Department in its statements of policy, clearly those duties set forth in I.C. 39-4605 are mandatory.
This is not a case of the court trying to run the Department, as suggested by the defendants, except as the court is called upon to interpret legislative purpose. The legislature determined that the Department shall initiate and provide comprehensive developmental disability services. There is no authorization for conditioning these services upon the availability of Title XIX funds for the payment of placements. Therefore, the policy that precludes placement of the plaintiff in a community based group home by reason of a lack of Title XIX funds is invalid. This is not a dictate that the Department make a particular placement but a determination that it may not use the state policy as a basis for the determination.
The court does not reach the question of the appropriate placement at this time and reserves the question of whether it may or should enter this realm. The Department argues that there is a question of fact concerning the propriety of placement in defense of its decision to use the State School and Hospital. That may be, but it appears that if the facts submitted in opposition to the plaintiff’s motion for summary judgment are lined up against those submitted by the plaintiffs at trial it is most likely that a determination would be made that the Department is presently committed to a position that would be harmful to a child for which it has responsibility as indicated by the legislature. There has, unfortunately developed an adversary condition between the Department and the plaintiff, a disabled child, that threatens to lead the two litigants down the path of legal adjudication to the exclusion of a proper resolution of a very important human problem. In its brief the Department makes the following statement: “If this court were to order the Department to pay for plaintiff’s placement at Challenge Group House the Department would request guidance as to where the money should come from to make such a placement.” The court, of course, hopes that this case will not develop to the point of being asked to adjudicate a specific placement. The Department would most likely be more unhappy with an acceptance of the offer to determine its financial organization than with its own determination pursuant to sound fiscal planning in accordance with the dictates of the legislature, consistent with the best interests of this child, its legal and ethical responsibility. Hopefully the interest of the fray will not cause either the child’s representatives or representatives in the Department to forget the human condition that might be dealt with properly by imaginative minds working toward the same end.
The plaintiff’s motion for summary judgment is granted to the extent that the Department's policy is declared void that limits placements in community based *396group homes to those cases in which Title XIX funds are available.
DATED this 27 day of October, 1981. /s/ Gerald F. Schroeder Hon. Gerald F. Schroeder District Judge
Coalition of Advocates for the Disabled
1510 West Washington
Boise, ID 83702
Phone: (208) 336-5353 (TDD)
J. Brent Marchbanks, Attorney for Plaintiffs
In the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada
Trin George, by and through her next friend and mother Bonnie George, Michael Fodge, by and through his next friend and father Kermit Fodge, and Lucas Mead, by and through his next friend and mother Pamela Mead, Plaintiffs
v.
Rose Bowman, individually and in her official capacity as Director of the Idaho Department of Health and Welfare, John Morgan, individually and in his capacity as Director of the Division of Community Rehabilitation, John Evans, in his official capacity as Governor, and The Idaho Department of Health and Welfare, Defendants
No. 88819
March 31, 1986
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs brought suit, seeking relief in the form of an alternative writ of mandate, peremptory writ of mandate, declaratory judgement and injunctive relief. This court issued an alternative writ of mandate on January 23, 1986, directing Defendants to comply with the writ, or to show cause on February 14, 1986, why they should not be enjoined from refusing to provide appropriate individualized developmental programs and treatment services to Plaintiffs. Defendants appeared on February 14,1986, and answered the writ by filing a motion for summary judgement with an accompanying brief, the affidavit of Mr. Gary Broker, a copy of Idaho Senate Bill No. 1308 and Idaho Executive Order #85-20. It was stipulated between the parties that these documents would constitute the Defendants’ “pleadings” in this matter.
Plaintiffs filed a motion for judgement on the pleadings which was heard on March 17, 1986, immediately prior to the time set for trial. Concurrently, Plaintiffs orally moved for leave to amend their pleadings to include counts for money damages.
The Court having reviewed the pleadings, memoranda and responses to discovery in this case, and having considered the arguments of counsel, it hereby makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. At all times relevant to this action, Defendants Bowman, Morgan and Evans are and have been residents of Ada County, Idaho. The Defendant Idaho Department of Health and Welfare (hereinafter “Department”) is an agency of Idaho State government, with administrative offices in Boise, Idaho. Rose Bowman is the Director of the Department, John Morgan is the administrative head of the Department’s Division of Community Rehabilitation. John Evans is Governor of the State of Idaho.
2. Plaintiffs Michael Fodge, Lucas Mead and Trin George are handicapped children.
3. Michael is two years old and has cerebral palsy. He has spasticity and is severely delayed in his gross motor and speech development. Michael needs and would benefit from an individualized developmental program, including Developmental Therapy, Occupational Therapy and Speech Therapy. He previously received some of the individualized developmental treatment services he needs from- the Department, *397through the Adult and Child Development Center in Coeur d’Alene, Idaho. The Defendants now refuse him any and all developmental disability service.
4. Lucas Mead resides in Bonners Ferry, has Down’s Syndrome and is diagnosed as mentally retarded. He is an active learner, and would benefit from developmental disability programs and treatment services including Developmental Therapy, Occupational Therapy and Speech/Language Therapy. He previously received these services from the Department. They now refuse him any such services.
5. Trin George lives in Kellogg, is five, and has Rett’s Syndrome, a condition which causes functional limitation much like cerebral palsy. She cannot walk, talk or eat independently. Trin would benefit from Speech and Physical Therapy. The Department previously provided Speech Therapy to Trin. The Department now refuses to provide that service to Trin.
6. The disabling conditions of each Plaintiff is attributable to an impairment, such as mental retardation, cerebral palsy or similar conditions, which is expected to continue indefinitely, and constitutes a substantial handicap to such person’s ability to function normally in society, particularly in the areas of language, learning, mobility, capacity to live independently and earning a living. The impairments reflect a need for interdisciplinary care and treatment, individually planned, for an extended duration. Each of the plaintiffs’ need for such services was determined through the “Multidisciplinary Treatment Team” process of the Department, which is the standard procedure used by the Department to determine developmental disabled citizens’ need for service.
7. Defendants assert that all funds appropriated by the legislature for the community developmental disabilities program have been allocated to that program, that the funds so appropriated have been reduced by legislative and federal action, and that transferring funds from other programs would reduce the services provided by the other programs. However, on the basis of the pleadings, and Departmental documents obtained through discovery the Court funds there are funds available for the provision of the services being denied Plaintiffs in other Department programs.
CONCLUSIONS OF LAW
1. Plaintiffs are “developmentally disabled” as that term is defined in I.C. 39-4601 et seq., the Idaho Developmental Disability Services and Facilities Act. As developmentally disabled citizens of Idaho, Plaintiffs are entitled under that Statute, to comprehensive developmental disability services from the Department, including individualized developmental programs of the type currently denied them.
2. Defendants Bowman, Morgan and the Department are already bound by this Court’s (J. Schroeder’s opinion) in Woods v. Idaho #74139 (1983), that the provision of I.K.C. 39-4601 et. seq. are mandatory upon the Department and its officials.
3. While the Department and its officials have discretion as to how to allocate available funds so as to best carry out the mandate of I.C. 39-4601 et. seq., they have no discretion as to whether to provide such services to eligible developmentally disabled citizens. They must.
4. There are funds available to the Department which are spent on services which are not statutorily mandated, as are community developmental disability services.
5. If funds allocated to the Community Developmental Disabilities program are insufficient to provide services to eligible developmentally disabled children, the Defendants must draw upon funds being used for non-mandated purposes.
7. That the Plaintiffs’ legal right to community comprehensive developmental disabilities services is enforceable by *398them through writ of mandate and injunction.
Dated this 27 day of March, 1986.
/s/ Robert M. Rowett
District Judge
. 28 Idaho 338, 154 Pacific 621 (1916). The facts and holdings of that case are found in three paragraphs on p. 343 and 344, which for facility are:
No appropriation of money has been made with which to pay the state's proportion of the expense of giving emergency employment, and it is urged by defendants that the chapter is unconstitutional because it conflicts with sec. 13, art. 7, of the constitution, which is as follows: "No money shall be drawn from the treasury, but in pursuance of appropriations made by law.”
An appropriation, within the meaning of the section of our constitution last above quoted is authority from the legislature expressly given in legal form, to the proper officers, to pay from the public moneys a specified sum, and no more, for a specified purpose, and no other. It follows that no money may lawfully be paid from the treasury except pursuant to and in accordance with an act of the legislature expressly appropriating it to the specific purpose for which it is paid. No money having been appropriated for that purpose, the state is as effectually precluded by sec. 13, art. 7, from paying its proportionate share of the expense of giving emergency employment as is the county from retaining it from the state treasury by sec. 7, art. 7, of the constitution. (Kingsbury v. Anderson, 5 Ida. 771, 51 Pac. 744; Kroutinger v. Board of Examiners, 8 Ida. 463, 69 Pac. 279; and Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065.)
Our attention is also directed to the fact that no provision is made for the submission of claims against the state, arising out of emergency employment, to the state board of examiners, but, upon the other hand, payment of funds belonging to the state, without such examination, is attempted to be provided for. This feature of the chapter is in contravention of sec. 18, art. 4, of the constitution, which grants to that board power to examine all claims against the state, except for salaries or compensation of officers fixed by law. (Winters v. Ramsey, 4 Ida. 303, 39 Pac. 193.).
. As will be noted, Judge Schroeder’s decision was based on an application for declaratory relief.