dissenting.
I must respectfully dissent for the reasons expressed in the dissent by Justice Bistline to the original opinion of the Court. At a minimum, I would remand for further proceedings to resolve whether there were funds available to apply to the subject program. The trial court made the following finding:
However, on the basis of the pleadings, and Departmental documents obtained through discovery the Court finds there are funds available for the provision of the services being denied Plaintiffs in other Department programs.
The trial court also correctly entered the following two Conclusions of Law:
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.
The majority opinion casts this Court in the position of finding facts to the contrary.
I am, likewise, not impressed with the argument that not enough defendants were specifically named to mandate action. The claim, in essence, is that the State of Idaho, which acts only through human beings, is improperly withholding services. The three individuals sued (including the Governor) plus the entire Department of Health and Welfare, would seem to constitute adequate representative defendants to bring the State before the Court.
BISTLINE, J., concurs.EXHIBIT A
MEMORANDUM IN SUPPORT OF PETITION FOR REHEARING
I
In reversing and remanding Judge Rowett’s decision in this case this Court ruled *400that to require the Appellant Department of Health and Welfare to transfer funds appropriated by the State Legislature to the Department for other programs to “mandatory” services for developmentally disabled children would violate Article 7, Section 11 of the Idaho Constitution. Respondents respectfully assert that the Court has misread the factual record of the case as to relevant legislative appropriations.
The record in the case demonstrates that certain funds were appropriated to the Appellant without a specific purpose, and which were legally available to fund the disability-related therapies sought by the Respondents and mandated by the Legislature.
II
The factual record of the case before the Court, including Appellants’ response to discovery, demonstrates that Appellant received a legislative appropriation for “Social Services,” consisting of federal Title XX Block Grant funds. The services that can be financed by the Social Services Block Grant include therapies for disabled children.
The appropriation legislation itself (which is a part of the record) reveals that the block grant funds were appropriated to the Appellant without specification that any particular social service be funded thereunder. Since the authorized uses of these federal funds, include therapies for developmentally disabled children, the District Court’s Order can hardly be said to violate Article 7, Section 11 of the Idaho Constitution.
Ill
The Court’s opinion indicates that it relied upon the District Court’s Findings of Fact in concluding that the District Court’s order would require the Appellant to re-allocate funds from purposes to which the Legislature has specifically appropriated funds. This Court cites Findings 4 and 7 (that the Appellant is spending money on non-mandatory programs) and Finding 5 (that the Appellant is required to draw on funds being spent on non-mandated programs to fund mandated programs), to conclude that a necessary result of the District Court Order is that funds would be taken from one specifically appropriated purpose to another. This is not so. There are at least two appropriations which the Legislature gave Appellant to fund such services (the Community Developmental Disabilities Program and the Block Grant funds).
Judge Rowett made no specific finding that the “non-mandated” programs that the Appellant could draw upon were those funded under the Block Grant. However, such a finding would not have been relevant to the argument below. No reference to the Constitutional argument made by the Appellant on appeal, exists in the record.
Evidence in the record does document that non-appropriated, non-mandated, non-enforceable activities, such as day card licensing, were being funded by the Social Services Block Grant funds.
IV
For these reasons, the interests of justice will be served by the granting the Motion For Rehearing.
Respectfully submitted this 7 day of October, 1987.
/s/ J. Brent Marchbanks
J. Brent Marchbanks
Attorney for Respondents