91 Wn.2d 591, PANNELL v. THOMPSON

CITE:          91 Wn.2d 591, 589 P.2d 1235

               PANNELL v. THOMPSON

CAUSE NUMBER: 45684

FILE DATE:     February 1, 1979

CASE TITLE: Charles Pannell, et al, Appellants, v. Gerald
               Thompson, as Secretary of the Department
               of Social and Health Services,
               Respondent.

[1] Appeal and Error - Findings of Fact - Failure To Assign Error - Effect. A trial court's findings to which no error is assigned become the established facts of the case.

[2] Statutes - Construction - General and Specific Provisions. A statute which specifically deals with a subject will control over the provisions of another statute which deals generally with the subject.

[3] Statutes - Construction - Legislative Intent - Expectations. The fact that at the time of enactment of a bill the legislature may have expected an early opportunity to reconsider the matter and such opportunity did not occur does not, by itself, change the legislative intent with respect to that enactment.

[4] States - Legislature - Obligation To Fund Statutory Programs. Action by the legislature in establishing programs and directing certain activities does not bind the legislature to appropriate funds to support or make possible the program or activity. The courts will not direct the legislature to provide funding for a specific program unless it is constitutionally mandated.

[5] Statutes - Appropriation Enactments - Spending Limitations. A prohibition on exceeding the appropriation for a specific program may properly be included in the appropriation enactment. Such a provision does not attempt to repeal or amend existing laws.

[6] Administrative Law and Procedure - Application - Statutory Funding Mandate. The administrative procedures act, including the requirement of notice prior to the adoption of regulations, is not applicable to administrative action in compliance with an express legislative limitation on expenditures for an exclusively state funded and administered program.

[7] Appeal and Error - Disposition of Cause - Affirmance on Other Grounds. A judgment will be sustained if correct even if the trial court gave wrong or insufficient reasons for its rendition.

NAMES OF CONCURRING OR DISSENTING JUDGES: Williams, J., did not participate in the disposition of this case.

NATURE OF ACTION: Several recipients of noncontinuing general assistance brought a class action seeking a declaratory judgment and injunctive relief to prevent a reduction in the amount of benefits.

Superior Court: The Superior Court for Thurston County, No. 78-2-00043-3, Warner Poyhonen, J. Pro Tem., on August 3, 1978, entered a judgment in favor of the defendants denying injunctive relief.

Supreme Court: Holding that there was no statutory authority for continuing the payments at the level sought by the plaintiffs, the court AFFIRMS the judgment of the trial court except as to the validity of an administrative order relating to the reduction in benefits.

COUNSEL:      PATRICK HENRY MCINTYRE, GERALD R. TARUTIS, and TONY LEE of EVERGREEN LEGAL SERVICES (Seattle), for appellants.

SLADE GORTON, ATTORNEY GENERAL, RICHARD A. MATTSEN, SENIOR ASSISTANT, and WALTER E. WHITE and DAVID R. MINIKEL, ASSISTANTS, for respondent.

AUTHOR OF MAJORITY OPINION: Stafford, J.-

MAJORITY OPINION: This class action was submitted to the trial court by affidavit and documentary evidence only. The class has appealed from a judgment dismissing their claim for declaratory and injunctive relief.

[1] Appellants have not assigned error to any finding of fact; consequently, the unchallenged findings become established facts of the case. LAKESIDE PUMP & EQUIP., INC. v. AUSTIN CONSTR. CO., 89 Wn.2d 839, 842, 576 P.2d 392 (1978). The findings and those facts upon which the parties appear to agree in their briefs indicate that appellants brought this action for declaratory judgment to prevent respondent Secretary of the Department of Social and Health Services (DSHS) from implementing a proposed reduction in payments made under a "non-continuing" general assistance program (GAN).

The GAN program is an exclusively state-funded and state administered plan of "non-continuing" general assistance for unemployed employable persons. Recipients of GAN funds must have exhausted all private nonexempt or public resources and must have applied for all other public benefits. WAC 388-37-230. They also must have registered for employment with the Employment Security Department, must meet work registration and work search requirements and must accept bona fide employment offers. WAC 388-27-215(3)(7). Applicants are certified for a fixed period of time at the expiration of which they must reestablish eligibility as a new applicant. In most cases the certification period is 2 weeks although it may extend to 30 days. At trial it generally was agreed that approximately 5,000 persons a month received GAN payments. The GAN program is to be distinguished from "continuing" assistance programs under which recipients remain eligible until some change in circumstances results in termination (E.G., Aid to Family with Dependent Children).

Prior to August 1977 GAN recipients were provided between $53-$60 a month from the BASIC GAN assistance appropriation. Proportionately higher amounts were authorized depending upon the number of recipients in a household. For the 1977-79 biennium, however, the Legislature specifically earmarked an ADDITIONAL $6,090,000 to permit INCREASES in GAN payments above the amount provided in the BASIC appropriation. Laws of 1977, 1st Ex. Sess., ch. 339, 57(7), p. 1444 (hereinafter 57(7)). Pursuant to 57(7) DSHS INCREASED the allowance from the BASIC amount of $53-$60 funded under the BASIC appropriation to $201-$212 per month. As with the BASIC GAN payments, proportionately higher amounts were authorized based upon the number of recipients in a household. Significantly, however, the 57 appropriation of funds for GAN INCREASES contained the following specific limitations:

"     The APPROPRIATIONS CONTAINED IN THIS SECTION SHALL BE SUBJECT TO THE FOLLOWING CONDITIONS AND LIMITATIONS:

. . .

(7) NOT MORE THAN $6,090,000 SHALL BE EXPENDED TO PROVIDE INCREASES in noncontinuing general assistance grants.

(Italics ours.)

The trial court's oral opinion appears to bear out appellants' contention that both the Legislature and DSHS were aware $6,090,000 would be insufficient to support the INCREASE in GAN payments for the entire biennium. Some legislators thought the Legislature could reconsider the matter when the Governor called it into extraordinary session. However, the Governor did not call a special session and thus the Legislature was not able to consider whether additional funds should be appropriated to continue further support for the INCREASED GAN payment.

As might have been expected, the $6,090,000 appropriated for GAN grant INCREASES was fully expended well before the end of the biennium. When the funds allotted for such increased grants had been expended completely, the Governor directed DSHS to file Administrative Order 1316 with the Code Reviser. The order, filed July 17, 1978, reestablished the GAN grant levels in effect prior to the appropriation authorizing the INCREASE (I.E., between $53 $60). Based upon the total depletion of the $6,090,000, Administrative Order 1316 was characterized as an "emergency" order to take effect immediately as authorized by RCW 34.04.030. 1


1 RCW 34.04.030. "If the agency finds that immediate adoption or amendment of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observance of the requirements of notice and opportunity to present views on the proposed action would be contrary to the public interest, the agency may dispense with such requirements and adopt the rule or amendment as an emergency rule or amendment. The agency's finding and a brief statement of the reasons for its finding shall be incorporated in the emergency rule or amendment as filed with the office of the code reviser under RCW 34.04.040."


The DSHS statement in support of the alleged "emergency" asserted that the amount appropriated under 57, for increases in GAN payments, had been depleted.

On July 17, 1978, appellants filed the instant class action seeking declaratory and injunctive relief. Initially the trial court issued a temporary restraining order. However, after a hearing on the merits, the trial judge dismissed appellants' case with prejudice, dissolved the temporary restraining order and denied the motion for preliminary injunction. Appellants' motion for a direct accelerated review by this court was granted. We affirm the trial court as modified herein.

In their opening brief, appellants assert the State has a constitutional duty to provide them with the INCREASED GAN payments, citing Const. art. 8, 7. However, since they expressly abandon the claim in their reply brief, we decline to consider the issue further. Similarly, appellants appear to contend they have a "vested" statutory "right" to a continuation of GAN grants at the increased levels. This claim also was abandoned in their reply brief and therefore will not be considered.

Appellants now assert a statutory "entitlement" to the increased GAN funds which they assert stems from RCW 74.08.040 which provides in pertinent part:

"     For general assistance to UNEMPLOYED EMPLOYABLE persons, the department SHALL ESTABLISH STANDARDS OF ASSISTANCE based upon annual living cost studies and COMPATIBLE WITH A MINIMUM NECESSARY FOR DECENT AND HEALTHFUL SUBSISTENCE.

Such standards shall permit the meeting of actual and emergent need on an individual basis.

(Italics ours.) They urge that the $53-$60 furnished them under the BASIC GAN allowance fails to comply with RCW 74.08.040 in that it is not "compatible with a minimum necessary for decent and healthful subsistence" and does not meet "actual and emergent need on an individual basis."

No one appears to argue seriously that the BASIC GAN payments of $53-$60 are sufficient to provide necessary subsistence for a single person. Clearly the grant levels under the basic GAN appropriation do not comply with the statement of need in RCW 74.08.040. Based on this fact appellants argue that DSHS is mandated to reinstate the INCREASED GAN allowance. They assert that additional GAN funds may be obtained from either of two sources (1) transfer of money from other DSHS controlled appropriations, citing Laws of 1977, 1st Ex. Sess., ch. 339, 51(7), p. 1438 (hereinafter 51(7)) or, (2) a court order that DSHS must obtain, from the Governor or Legislature, the funds necessary to support the program at levels provided in RCW 74.08.040. We do not agree with either argument.

[2] First, in light of the applicable legislation, any attempt to transfer funds from other DSHS programs to support INCREASED payments under the GAN program would have placed the Secretary in the unenviable position of potentially violating a specific legislative mandate. Despite a GENERAL legislative directive contained in 51(7) authorizing DSHS to transfer up to $10 million among its programs and a GENERAL legislative directive in Laws of 1977, 1st Ex. Sess., ch. 339, 51(5), p. 1438 (hereinafter 51(5)), prohibiting rateable reductions in grant payments, there is a SPECIFIC directive applicable strictly to INCREASED GAN funds which places a specific limitation on the expenditure of those funds. It provides that NOT MORE THAN $6,090,000 is to be expended on increases in GAN grant levels. 57(7). Clearly there is an inconsistency between the GENERAL authorization for transfer of funds among DSHS programs, the GENERAL directive against rateable reductions, and the SPECIFIC limitation placed upon the expenditure of INCREASED GAN funds in the GAN program. However, a basic rule of statutory construction reconciles this apparent inconsistency. When there is a conflict between one statutory provision which treats a subject in a GENERAL way and another which treats the same subject in a SPECIFIC manner, the SPECIFIC statute will prevail. OLSON v. UNIVERSITY OF WASH., 89 Wn.2d 558, 562, 573 P.2d 1308 (1978); HAMA HAMA CO. v. SHORELINES HEARINGS BD., 85 Wn.2d 441, 536 P.2d 157 (1975); JOHNSTON v. BENEFICIAL MGT. CORP. OF AMERICA, 85 Wn.2d 637, 538 P.2d 510 (1975); KNOWLES v. HOLLY, 82 Wn.2d 694, 513 P.2d 18 (1973); 2A Sutherland, STATUTORY CONSTRUCTION 51.05 (4th ed. C. Sands 1973). Consequently, the SPECIFIC LIMITATION on expenditure of increased GAN funds to $6,090,000 prevails over the GENERAL AUTHORIZATION to transfer funds among DSHS programs and the GENERAL prohibition against rateable reductions.

An unchallenged finding of fact declared that the funds appropriated for increased GAN payments had been totally expended, I.E., the specific statutory limitation of 57(7) had been reached. Because this specific limitation was reached, NO FURTHER FUNDS COULD BE EXPENDED although funds remained in other DSHS programs and possibly in the Governor's emergency appropriation fund. In short, only an amendment of legislative authorization can correct the insufficient funding in light of the Legislature's own specific limitation on the specific appropriation for GAN grant increases.

[3] Appellants argue that both DSHS and the members of the legislature were aware that the $6,090,000 appropriated in 57(7) would, in all probability, be insufficient. This is offered as a reason to believe that the 57(7) specific limitation on expenditures does not mean what it says. We do not agree. Expectations of the DSHS staff are not relevant when attempting to devine the Legislature's intent at the time of making and limiting the appropriation. Further, the fact that one legislator, in an affidavit, stated she recognized the insufficiency of the appropriated increase but believed, incorrectly, there would be a special session to consider possible additional increases is not helpful. What one legislator may have believed does not establish that the Legislature intended something contrary to its express declaration in 57(7). Rather, if we assume the Legislature realized the insufficiency of its appropriation and still appropriated the amount it did, with a specific limitation on expenditures, we must also assume the Legislature intended to do exactly what it did. The Legislature may, as appellants argue, have intended to increase the appropriation, as needed, in a special session but this is not evidence of an intent to override the specific limitations of 57(7) enacted in the current session. Rather, it is supportive of the specific limitation. The fact that some members of the legislature may have been frustrated in their hope for a special session to enable further review of the need for increased GAN funds does not change the limitation they imposed in 57(7). At best it means only that the Legislature meant what it said and wanted an opportunity to review the financial picture at a later date.

[4] Appellants' second contention would require DSHS to award the increased GAN grants in an amount sufficient to maintain the subsistence envisioned by RCW 74.08.040 despite the Legislature's failure to provide sufficient funds. Basically, it is appellants' position that if the Legislature authorizes a program it must fund it fully. BRESOLIN v. MORRIS, 86 Wn.2d 241, 543 P.2d 325 (1975) is cited as support for this contention. However, reliance upon BRESOLIN is misplaced. In BRESOLIN we did not order DSHS to provide funds to carry on a legislatively authorized program despite an insufficient appropriation of funds. Rather, we ordered DSHS to request the Legislature for an appropriation sufficient to maintain the program. It is of interest that upon being informed of the cost of fully funding, the Legislature changed the program and did not provide the requested funds. Appellants fail to recognize a legislative fact of life. Legislatures often provide laudable programs but may fail to fund them adequately or may decline to fund them at all. The decision to create a program as well as whether and to what extent to fund it is strictly a legislative prerogative.

We will not direct the Legislature to act in this regard unless creation of a program and/or the funding thereof is constitutionally mandated. Such is not the case here nor is it claimed to be.

[5] Next, appellants contend the Legislature's specific limitation of increased GAN funds to an expenditure of $6,090,000 creates an unconstitutional limitation upon a statutory entitlement created by RCW 74.08.040. Appellants argue that the statutory entitlement to increased GAN funds, said to be required by RCW 74.08.040, may not be limited by an appropriations bill. This, they assert amounts to an unconstitutional amendment of the general law contrary to Const. art. 2, 19. FLANDERS v. MORRIS, 88 Wn.2d 183, 558 P.2d 769 (1977) is cited for support. We do not agree.

FLANDERS is not in point. It dealt with an amendment to the public assistance law accomplished by the addition of a SUBSTANTIVE ELIGIBILITY CRITERIA, I.E., an age restriction, in an appropriations bill. As we pointed out, one looking for such a change in the substantive public assistance law would not have looked for it in an appropriations bill. We held the addition of the age restriction was in itself a substantive enactment which did not constitutionally belong in an appropriations bill. Such is not the case here. Section 57(7) makes no substantive change in or amendment of RCW 74.08.040. No eligibility criteria are changed. In fact it does not even change the amount of funding for BASIC GAN grants. Rather, 57(7) is a specific appropriation of a specific amount of money for a SEPARATE INCREASE in GAN funds as distinguished from BASICALLY appropriated GAN funds. The appropriation contained an express prohibition against exceeding the expenditure limitation for INCREASES. Where else but in an appropriation bill would one look for such a limitation? The section reflects only appropriation matters, it does not change the SUBSTANTIVE law on the subject. The BASIC GAN appropriation was in no way affected. Such budgetary limitations are the function of appropriations bills and clearly within the power of the Legislature.

Far from being required to expend more DSHS funds to continue the increased grant levels, such action by the Secretary would have been UNLAWFUL in light of 57(7)'s limitation. RCW 43.88.260, .270, .290, .300. Further, an incurred deficiency, overencumbrance or expenditure of funds contrary to the terms, limits, or conditions of any appropriation made by law could have caused summary removal of the responsible agency head or appointive officer and could have given rise to civil as well as criminal penalties. RCW 43.88.260, .270, .290, .300.

The continued payment of the increased GAN funds (as distinguished from continued payment of the basic GAN compensation) would have been directly contrary to the specific directive of 57(7). All told it is clear the Legislature in the case of INCREASED funds did not desire its direction to be circumvented. Consequently, RCW 74.08.040 provides appellants with no statutory entitlement to INCREASED GAN payments beyond those appropriated for that purpose and subject to the specific limitations of the appropriation.

Finally, appellants assert that Administrative Order 1316 which halted payment of INCREASED GAN grants after total expenditure of appropriated funds and reinstated the basic grant level, was adopted in violation of notice and hearing requirements of the Administrative Procedures Act. Appellants point out that RCW 34.04 requires both public notice and an opportunity to comment before the adoption of proposed agency regulations. They acknowledge that in exceptional cases (I.E., emergencies) an administrative agency may dispense with prior notice and hearing and immediately adopt a regulation if, pursuant to statutory procedures, the agency finds: the action is "[1] necessary for the preservation of the public health, safety or general welfare, AND [2] observance of the requirements of notice and opportunity to present views . . . would be contrary to the public interest . . ." RCW 34.04.030. Appellants contend no emergency existed, or if one did exist it was created by the agency's own ineptness in handling a predictable financial problem.

Whether DSHS violated the Administrative Procedures Act (APA) by failing to hold hearings prior to increasing the GAN grants pursuant to the legislative authorization found in 57 or whether DSHS violated the APA when it reduced the previously increased GAN payments as required by the 57 appropriation is not before us. Under the terms of the specific appropriation and the specific limitation on expenditures, a challenge based upon DSHS's failure to follow prior notice and hearing procedures under the APA is not an appropriate remedy.

[6] In the instant situation the APA is not applicable. Notice and hearing prior to discontinuing payment of previously appropriated, but currently exhausted, increased GAN grant funds would have accomplished nothing. The Legislature itself previously had established an ABSOLUTE limitation on increased expenditures for the GAN program. This limit had been reached. Thus pursuant to the Legislature's own directive there was nothing further for DSHS to do but discontinue the increased payments. DSHS could not by rule or by administrative regulation, amend or change the impact of 57(7). Administrative rules or regulations may not amend or change legislative enactments. KITSAP-MASON DAIRYMEN'S ASS'N v. STATE TAX COMM'N, 77 Wn.2d 812, 815, 467 P.2d 312 (1970). Further, as provided by RCW 34.04.940:

"     NOTHING IN THE ADMINISTRATIVE PROCEDURE ACT SHALL BE HELD TO . . . LIMIT or repeal additional REQUIREMENTS IMPOSED BY STATUTE or otherwise recognized by law.

(Italics ours.)

Appellants argue that an administrative hearing at least would have made it known that funds were available from alternate sources such as (1) transfer from other DSHS programs, (2) the Governor's emergency funds, (3) through a call for a special session of the Legislature. However, these are not viable alternatives to the specific directive of 57(7). As explained above, transfers from other DSHS programs pursuant to the general authorization of 51(7) would have been in direct violation of the specific limitations and conditions of 57(7). Further, the use of money obtained from the Governor's emergency funds would have been subject to the same limitation plus the discretion of the Governor which is not subject to the directive of any administrative agency. Finally, whether an extraordinary session of the Legislature may be called is solely a prerogative of the Governor and is not subject to order of the judiciary, the Legislature or any administrative body.

Consequently, we hold there is no need to determine whether DSHS failed to follow the APA in adopting Administrative Order 1316. Further, we need not decide whether, under the APA, there was such an emergency as would call into play the emergency exception set forth in RCW 34.04.030. The APA is not applicable to a situation involving the funding of programs where: (1) the program is an exclusively state-funded and state-administered program and no federal funds or federal administrative rules are involved; (2) the Legislature previously had enacted an express absolute limitation on expenditures for the program; and (3) previously determined conditions and limitations on expenditures have been reached and the funds have been totally expended.

Whether 57(7) should be amended to authorize the use of funds from other sources and whether additional funds should be appropriated for increased GAN grants are decisions which only the Legislature can make, there being no constitutional mandate to the contrary. Further, whether an extraordinary session of the Legislature should have been called to consider the instant matter was a matter strictly within the discretion of the Governor, there being no constitutional mandate to the contrary.

[7] We affirm the trial court except insofar as it concluded that Administrative Order 1316 was validly adopted in accordance with the requirements of RCW 34.04.030. As explained above, the APA is not applicable to the instant case and thus the conclusion of law was inappropriate. Nevertheless, the ultimate resolution of the total issue before the court is correct. Where a judgment or order is correct it will not be reversed merely because the trial court gave wrong or insufficient reason for its rendition. CHENEY v. MOUNTLAKE TERRACE, 87 Wn.2d 338, 347, 552 P.2d 184 (1976); RETAIL CLERKS LOCAL 629 v. CHRISTIANSEN, 67 Wn.2d 29, 31, 406 P.2d 327 (1965); KIRKPATRICK v. DEPARTMENT OF LABOR & INDUS., 48 Wn.2d 51, 53, 290 P.2d 979 (1955).

CONCURRING JUDGES: Utter, C.J., and Rosellini, Wright, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., concur.

POST-OPINION INFORMATION: Reconsideration denied March 14, 1979.