(dissenting) — In an obvious attempt to uphold the decision of the trial court denying the preliminary injunction, the majority has improvidently crossed the line which separates an appellate court of review from a factfinding body. This is a dangerous precedent and for that reason, I must dissent.
*893I
Factual Background
While I agree with most of the factual background related by the majority, I feel much relevant information has been omitted.
The present controversy arose on July 16, 1982, when the Governor notified all state employees that effective August 31, 1982, the State would implement a new "lagged payroll" method of compensation. Under this new plan, the compensation owed to an employee and statutorily paid by the State at the end of the month would be "lagged" 10 days. To make the shift to the new plan in August of 1982, the Governor informed the employees that on August 31, 1982, they would receive only 80 percent of their earned compensation and would receive the balance on September 10. The employees were further informed, "For September 1982, and after, you will receive 100 percent of your pay ... on the 10th day or second Friday, whichever occurs first, following the last of the preceding month". The Governor's letter gave as his reason for adopting the "lagged payroll" plan the fact that it would "yield $4 million for the remainder of this biennium".
On the same date the Governor sent a similar letter to numerous financial institutions informing them that a "lagged payroll" plan was to be adopted in August 1982 to make the state operate more like a private business "and at the same time yield $4 million for the remainder of the fiscal year 1983 — $4 million that will in fact reduce the remaining $20 million budget deficit ..." Thus, as things stood on July 16, 1982, the Governor had announced the adoption of a "lagged payroll" plan to be effective August 31, 1982. His announced reason for adopting the plan was to save $4 million and thus reduce a large budget deficit.
At this juncture it is important to note that while the Governor's intentions may have been laudable, the "lagged payroll" system initiated by him was without authority of law. RCW 42.16.010 provides clearly that "The salaries of all state officers and employees shall be paid monthly on *894the last day of each month unless the director of financial management shall establish different dates in accordance with RCW 42.16.017". (Italics mine.) Thus, only the director of financial management had authority to establish a different date. Consequently, the Governor improperly usurped that authority. Further, RCW 42.16.0178 provides that even the director of financial management has power to change the statutory dates only "[t]o facilitate payroll preparation and accounting" and certain other matters not here important. Yet, the Governor's declared reason for acting was to raise additional revenue as an aid in meeting the budget deficit. Clearly this was not authorized by statute.
On July 16, 1982, following the Governor's unauthorized adoption of the lagged payroll plan, for reasons not authorized by statute, petitioner Washington Federation of State Employees (WFSE) commenced the instant action. Petitioner WFSE asked that the lagged payroll system be declared unlawful and unconstitutional. Petitioner further requested preliminary injunctive relief under RCW 7.40.020 to preserve the existing method of payment of state employees' salaries until the trial court could consider and determine the legal and factual issues involved.
On August 9, 1982, the trial court rejected petitioner's constitutional challenge and thereafter considered the legality of the lagged payroll system adopted by the Governor and due to take effect August 31, 1982. After a continuance to August 20, 1982, the trial court held the lagged payroll system was authorized by RCW 42.16.010 and .017. This result was reached despite the fact that the Governor clearly had no statutory authority to have proceeded as he did. The trial court held that although the Governor's letter contemplated implementation of the lagged payroll plan for *895an unauthorized purpose (i.e., to raise additional revenue) it had the required effect of facilitating payroll and accounting efficiencies. This holding wholly overlooked the fact that the director of financial management had the exclusive power to so act and at that time had taken no such action.
Having determined that the lagged payroll plan was implemented in accordance with statutory requirements, the trial court found that WFSE was not likely to prevail in a later trial on the unresolved factual issues. The trial court therefore refused to grant the preliminary injunction requested by WFSE to preserve the status quo until the remaining factual issues could be resolved. In denying the injunction, while ignoring the glaring statutory deficiencies of the lagged payroll plan, the trial court abused its discretion. The majority herein has erred in failing to find such abuse of discretion.
II
Motion for Receipt of Additional Evidence on Review
Petitioner WFSE filed a motion for discretionary review in this court August 23, 1982, and on August 24, 1982, then Chief Justice Brachtenbach heard oral argument on petitioner's motion for discretionary review and request for preliminary injunctive relief. On that date the Chief Justice properly granted the motion for discretionary review and, pursuant to RAP 8.3, preserved the fruits of the appeal by enjoining implementation of the proposed lagged payroll plan until there could be review by the en banc court.
At the time of the hearing before the Chief Justice, the facts and the total failure to comply with RCW 42.16.010 and .017 were as related above. It was the Chief Justice who brought the statutory deficiencies to the attention of all parties. The lagged payroll plan had been implemented by the wrong person for the wrong reasons. Clearly the trial court had committed error by holding to the contrary.
This was the state of the record at the time the issues *896were submitted to the en banc court for review on September 7, 1982.
Two days after the Chief Justice disclosed the serious statutory flaws, the State began an "after-the-fact" attempt to rectify the problem. On August 26, 1982, the director of financial management, the one properly authorized to act under RCW 42.16.010 and .017, finally issued a directive initiating the lagged payroll plan, stating that payroll and accounting efficiencies would be gained thereby. While it is possible this may have belatedly brought the State's efforts into compliance with RCW 42.16.010 and .017, it also completely changed the nature of the case that had been considered by the trial court and the Chief Justice.
At this juncture the State moved to have the late changes considered by the en banc court in its review of both the trial court's ruling and the action of the Chief Justice. Without question, RAP 9.11(a) authorizes this court to direct that additional evidence be taken before the decision of a case on review; however, RAP 9.11(a) permits the receiving of such new evidence only if six conditions are met. It is of importance to note the majority conceded the six conditions were not met. This would normally have prevented granting the State's motion. Nevertheless, the majority, after conceding noncompliance with RAP 9.11(a), admittedly " alter [ed] the provisions of the rule in this case to consider respondents' motion in light of the other six requirements of RAP 9.11(a)." Majority opinion, at 885. Even then, however, the normal procedure under RAP 9.11(b) would have required a remand to the trial court for its consideration of the new evidence.
While I do not deny our rules should be interpreted to promote justice and facilitate the decision of cases on the merits, RAP 1.2, 18.8, the instant subjective result-oriented change causes me great concern. If, as the majority contends, consideration of the State's changed position was "necessary to fairly resolve the issues on review" the matter should at least have been remanded to the trial court under *897RAP 9.11(b). We are an appellate court of review; we are not a factfinding court. Moreover, the issues being "reviewed" by this court, after the majority's gratuitous amendment of RAP 9.11(a), are not the same as those faced by the trial court being reviewed.
Under the guise of promoting justice and facilitating decisions, the majority has considered matters injected by the State 6 days after the trial court's ruling and 2 days subsequent to the Chief Justice's action. By so doing, the majority set itself up to review issues totally different from those before the trial court and the Chief Justice. Yet, the majority proceeded on the comfortably false assumption that "we treat this matter as an appeal in the nature of a motion to modify his preliminary ruling. See RAP 17.7." Majority opinion, at 883.
Granted, this court can grant relief to insure effective and equitable review. RAP 1.2. Without question the court can hear motions to modify rulings pursuant to RAP 17.7. In the granting and reviewing of such motions, however, this court must exercise some judicial restraint to insure that it will actually be performing some function of review. Here, the majority performed no function of review. It not only failed to give the trial court an opportunity to rule on the newly admitted evidence, but also heard and passed upon totally new and different issues, a function not usually usurped by the Supreme Court. Normally, we have followed the proper course of reviewing only those matters actually before the court being reviewed. We have, in fact, refused to consider matters raised for the first time on review. State v. Davis, 41 Wn.2d 535, 250 P.2d 548 (1952). This is but a matter of common sense and orderly appellate procedure.
I do not assert that this court lacked the raw power to proceed as it did. I am concerned, however, with the wisdom of the maneuver, particularly since it would have required only a short delay to permit the remaining factual issues to be heard on their merits by the trial court. If the lagged payroll change was truly made to accomplish the *898payroll and accounting efficiencies authorized by RCW 42.16.017, as belatedly claimed by the State, the act of maintaining the status quo for a few more days would not have been disruptive. If, however, the lagged payroll system was actually adopted to accumulate interest for the state treasury, as originally claimed by the Governor, the short delay would only have put off an illegal procedure. Thus, the nebulous "emergency" upon which the majority relied simply did not exist. In either possible event, the action by the majority was unnecessarily precipitous and improperly taken.
Ill
Injunctive Relief
I agree with the majority that the granting or withholding of injunctive relief is addressed to the sound discretion of the trial court. Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 233, 635 P.2d 108 (1981). I also agree that RCW 7.40.020 governs the granting of injunctions and that one seeking relief by temporary or permanent injunction must show (1) that he has a clear legal or equitable right, (2) that he has a well grounded fear of immediate invasion of that right, and (3) that the acts complained of will result in substantial injury to him. Tyler Pipe Indus., Inc. v. Department of Rev., 96 Wn.2d 785, 638 P.2d 1213 (1982). Unlike the majority, however, I would find the trial court abused its discretion in finding that WFSE failed to meet its burden.
A
Clear Legal or Equitable Right
In Tyler Pipe, at 793, we held that to determine whether a party has a clear right we must analyze the movant's likelihood of prevailing on the merits. The trial court specifically held that petitioner WFSE was not likely to prevail on the merits. In so holding the trial court committed clear error.
As indicated above, RCW 42.16.010 and .017 govern the timing of state employee salary payments, the authority to *899change the statutory pay schedule and the reasons for which changes may be made. The majority agrees the statutes give the director of financial management the exclusive power to change the payment dates for the purpose of facilitating payroll preparation and accounting. Thus, it is said, "[t]he only real question is whether the proper procedures were followed in establishing a lagged payroll system and whether it was done for the proper reasons". Majority opinion, at 889.
As indicated earlier, the Governor, acting without authority, implemented the plan for unauthorized budgeting purposes. Consequently, at the time the matter was heard by the trial court and the Chief Justice, the action violated a clear statutory right of state employees. While the State made a belated attempt to correct the error, this late act was not before the trial court or the Chief Justice for consideration. Thus, clearly the trial court committed error by concluding the petitioner WFSE could not prevail on the merits. It was only after the majority herein agreed to consider the State's documents, thus changing its position, that there was even a real issue to consider.
As indicated earlier the majority's action was incorrect. Thus, when properly considered, the employees did have an invasion of a clear legal right at the time the issue was presented to the trial court and reviewed by the Chief Justice. That right continued until the majority inappropriately changed the rules in the middle of the contest. Without this additional evidence, it is apparent the trial court erred in finding no legal right was invaded.
B
Well Grounded Fear of Invasion
The majority has concluded that the state employees had a well grounded fear their rights were about to be invaded. Thus, it is unnecessary to discuss the issue further.
C
Substantial Injury
The majority acknowledges the existence of numerous *900"affidavits detailing the potential hardships to be suffered by state employees and by programs designed to serve state employees' interests (e.gretirement funds and pension funds)." Majority opinion, at 891. The majority admits "there is no remedy at law that would restore the affected state employees to the status quo ante if their homes or cars are repossessed, or if their health insurance and retirement systems are depleted or canceled." Majority opinion, at 891. These contentions are rejected, however, because the majority is not satisfied that any specific state employee has asserted such potential injury.
Apparently, the majority feels it should not act until there is actual proof that disaster has struck. Unfortunately, as admitted by the majority, there then would be "no remedy at law that [cjould restore the affected state employees to the status quo ante ..." Majority opinion, at 891. This makes no sense to me, particularly when only a very short delay in implementation of the lagged payroll plan was requested to permit a hearing on the merits.
Additionally, the majority contends it is unable to take judicial notice of the potential hardships. I would suggest the affidavits plus the use of a pencil and some paper would have revealed the hardships most graphically. For example, it takes little imagination to determine that as a result of the lagged payroll plan the state employees would be paid in 1982 for 11 and not 12 months of work. The use of pencil and paper would also have disclosed that the Internal Revenue Service "withholding" for 1982 would thus be considerably less. This alone would create quite an impact on employees who relied on a specific estimated amount for paying their annual income tax. In addition, by making the December payment in January 1983, the employees' salary would be subject to an OASI (FICA) installment that would not have been imposed had the salary been paid in December 1982. This is no small matter to many employees who were relying on a full December paycheck. It does the employee little good to say " it will all come out in the wash some time in the next few years."
*901Again, the simple use of pencil and paper would have disclosed that employees considering retirement will be severely affected by adoption of the lagged payroll system. The base for retirement is the employee's highest average final compensation received over 24 consecutive months. See RCW 41.40.010(15)(a). This is usually the last 2 years of employment because normally payment in these months would be the highest. Under the lagged payroll system, however, employees will be paid for only 11 months in 1982; therefore, anyone seeking retirement in the next 2 years will be credited for only 23 months in the 24-month period. Simple arithmetic reveals a serious impact on potential retirees. This is also disclosed in affidavit form.
Turning from the impact the lagged payroll system would have on IRS withholding, OASI withholding and retirement, it is again clear that much can be learned by the simple use of pencil and paper. There is no need to turn to technical rules of judicial notice and affidavits.
It is obvious that in the real world banks, credit unions, stores with charge accounts and creditors who issue credit cards (e.g., VISA, Master Charge, American Express, Diner's Club and gasoline companies to name a few) all assess a fee for late payment. While it would require affidavits to determine the actual percentage points used by the various companies, it is clearly common knowledge that the system is operative and that it applies to any person who makes a late payment. It is unrealistic to conclude that a 10-day delay in payments will not cause many employees to incur such "late charges". In fact, the State concedes that the lagged payroll system will "require alignment of personal budgeting and spending patterns to accommodate payments normally made on the first of the month ..." Clerk's Papers, at 95.
Finally, the lagged payroll system, as applied to salaries paid prior to January 1, 1983, raises a problem of constitutional dimensions albeit affecting only a small number of the total state personnel. Const. art. 3, § 25 and Const. art. 28, § 1 as amended by Const. art. 30, § 1 provide that com*902pensation for state officers must not be diminished during their terms of office. During 1982 the state officers were paid 11 months' compensation for 12 months' work. This is reflected in their IRS W-2 forms, their OASI withholding and their IRS withholding. Surely the majority could have considered this either by way of judicial notice or simple common knowledge.
Based on all of the foregoing it is clear petitioner WFSE established substantial harm in its request for a preliminary injunction pending a full hearing by the trial court on the merits.
After applying the criteria of Tyler Pipe to the facts established both by affidavit and common knowledge, I can only conclude WFSE has established the prerequisites for preliminary injunctive relief. In light of the record before the trial court, I am compelled to find an abuse of discretion by the trial court in failing to grant the preliminary injunction. The majority compounded the problem by improperly admitting evidence ex post facto to justify the trial court's erroneous decision. I would reverse the trial court and remand with instruction to enter a preliminary injunction pursuant to RCW 7.40.020.
Rosellini, J., concurs with Stafford, J.
RCW 42.16.017. "Payroll preparation and accounting — Establishment of pay dates. To facilitate payroll preparation and accounting, or to implement the provisions of RCW 42.16.010 through 42.16.017, the director of financial management may adopt customary and necessary procedures including the establishment of pay dates at reasonable times following periods in which payment is earned."