AUTOMOBILE DRIVERS & DEMONSTRATORS UNION LOCAL No. 882, ET AL, Respondents, v. THE DEPARTMENT OF RETIREMENT SYSTEMS, Appellant.
No. 45706
En Banc.
August 2, 1979
92 Wn.2d 415
ROSELLINI, STAFFORD, WRIGHT, BRACHTENBACH, HOROWITZ, DOLLIVER, and HICKS, JJ., and RYAN, J. Pro Tem., concur.
Herman L. Wacker and Vance, Davies, Roberts, Reid & Anderson, for respondents.
HICKS, J.—This is a direct appeal from a King County Superior Court judgment pursuant to
July 14, 1976, the union and its Port police members petitioned for admission of the Port police to the LEOFF retirement system established under
Pursuant to
We believe the issues to be resolved are: (1) Does the definition of “law enforcement officer” contained in
The Department acknowledges that the issues are purely legal; there are no disputed facts. The first issue is one of statutory construction. Do respondent Port police officers meet the statutory definition of “law enforcement officer“, thus entitling them to coverage under
The LEOFF system became effective in March 1970. The legislative purpose of the system is set forth in
The purpose of this chapter is to provide for an actuarial reserve system for the payment of death, disability, and retirement benefits to law enforcement officers and fire fighters, and to beneficiaries of such employees, thereby enabling such employees to provide for themselves and their dependents in case of disability or death, and effecting a system of retirement from active duty.
The Port police department was created in 1972, subsequent to enactment of the LEOFF enabling act. Effective April 1975, the Port police department became a recognized law enforcement agency with full police powers.
Pension legislation is to be liberally construed in favor of the beneficiaries. Hanson v. Seattle, 80 Wn.2d 242, 493 P.2d 775 (1972). The issue in this case, however, is whether respondents are intended beneficiaries under
(2)(a) “Employer” . . . means the legislative authority of any city, town, county or district or the elected officials of any municipal corporation that employs any law
enforcement officer and/or fire fighter, any authorized association of such municipalities, and, except for the purposes of RCW 41.26.150 , any labor guild, association, or organization, which represents the fire fighters or law enforcement officers of at least seven cities of over 20,000 population and the membership of each local lodge or division of which is composed of at least sixty percent law enforcement officers or fire fighters as defined in this chapter.(3) “Law enforcement officer” means any person who is serving on a full time, fully compensated basis as a county sheriff or deputy sheriff, including sheriffs or deputy sheriffs serving under a different title pursuant to a county charter, city police officer, or town marshal or deputy marshal, with the following qualifications:
(c) Only such full time commissioned law enforcement personnel as have been appointed to offices, positions, or ranks in the police department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinance enacted by the legislative body of the city shall be considered city police officers . . .
(Italics ours.)
Respondents argue that Port police are “city” police officers under
It is clear that the Port is a municipal corporation. The legislature has explicitly described port districts as “municipal corporations.”
A basic rule of statutory construction is that when the language of a statute is clear and unambiguous, there is no room for judicial interpretation. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972). Here, however, there is disagreement as to the meaning of the term “city” police officer in the context of the definition of “law enforcement officer” for the purpose of inclusion in the LEOFF system. To ascertain legislative intent, the statutory scheme as a whole should be examined. Hartman v. State Game Comm‘n, 85 Wn.2d 176, 532 P.2d 614 (1975).
Under the act, “fire fighter” is statutorily defined as any person “serving on a full time, fully compensated basis as a member of a fire department of an employer“. (Italics ours.)
In contrast with the definition of “fire fighter“, the statutory definition of “law enforcement officer” makes no reference to “employer.” Instead,
We note that the LEOFF statutes were enacted prior to the statutory authorization of port police departments with full police powers. Nevertheless, the definition of law
The definition of “employer” includes cities and municipal corporations. If the two terms are used synonymously under the act, there would be no reason to include both. The legislature is presumed not to have used superfluous words. State v. Fenter, 89 Wn.2d 57, 60, 569 P.2d 67 (1977). If the legislature intended to include police employed by municipal corporations, it could have defined “law enforcement officer” in the same manner as “fire fighter” by referring to “employer.” It did not do so. This court cannot read into a statute that which it may believe the legislature has omitted, be it an intentional or inadvertent omission. Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 573 P.2d 10 (1977).
Finally, to be considered “city police officers” under the statute, respondents must also meet the qualifications set forth in
We conclude that the legislature has not included port police officers within the definition of “law enforcement officer” under LEOFF.
II
Respondents argue that if the statute excludes them from LEOFF, they are denied equal protection under the fourteenth amendment to the United States Constitution and
The legislature has broad discretion in creating classifications in social and economic legislation; a classification will be upheld if any state of facts may reasonably be conceived to substantiate it. McGowan v. Maryland, supra. The wisdom of a legislative classification is not subject to our review. And a statute is presumed to be constitutionally valid and the burden is on the challenger to prove that a classification does not rest on a reasonable basis. State v. Devine, 84 Wn.2d 467, 470, 527 P.2d 72 (1974).
With these precepts in mind, we consider the constitutional challenge made in this instance. Respondents place great reliance on the fact that fire fighters employed by the Port are included in LEOFF. They reason that since Port fire fighters are included in LEOFF and Port police officers are not, the pension system which includes the one (fire fighters) and excludes the other (police) is without reason and, consequently, arbitrary. An arbitrary selection for inclusion in the system cannot stand.
As set forth in
The purpose of this chapter is to provide for an actuarial reserve system for the payment of death, disability, and retirement benefits to law enforcement officers and
fire fighters . . . and effecting a system of retirement from active duty.
Manifestly, the legislature may separately classify law enforcement officers and fire fighters. That the statutory objective is the same for both groups and is sought to be achieved by a single pension system does not militate against the classifications. From the standpoint of equal protection, what the legislature may do for fire fighters is of no concern to respondents. To prevail on their equal protection contention, Port police must demonstrate that their exclusion from the classification of law enforcement officer was arbitrary or furthered no purpose of the act.
Following a hearing before a Department hearing examiner, an administrative appeal to the Director of the Department of Retirement Systems was taken by the Port police officers. In the course of the written ruling, the Director stated: “The Department of Retirement Systems does not dispute the duties of the Port of Seattle police officers and the fact that they are identical with deputy sheriffs and city and county police officers performing these similar services.” For purposes of review, this statement establishes identity of duties as a fact of this case.
The relevant inquiry then is whether reasonable grounds may be conceived for distinguishing between police officers who fall within the statutory definition of “law enforcement officer” and port police officers, performing functionally identical duties, who do not. One such ground may be the solvency and integrity of the LEOFF fund. When the state administers a finite fund, a statutory discrimination will not be set aside if any state of facts can reasonably be conceived to justify it. Caughey v. Employment Security Dep‘t, 81 Wn.2d 597, 599, 503 P.2d 460, 56 A.L.R.3d 513 (1972). At the time of the creation of the LEOFF system in 1970, there were no port police who had “identical” duties with other police officers. Port police were fully empowered as police officers by the legislature several years later. By that time, legislative experience with
The jurisdiction of county and city law enforcement officers includes port properties within county or city boundaries.
The Department points to a number of distinctions between Port police and city and county police. For example, city and county police are covered by civil service laws; Port police are not. Respondents contend that most of the distinctions claimed by the Department are ultimately based upon the status of port police as employees of port districts. Such distinctions, respondents argue, must fail because the legislature did not deem it relevant for purposes of including port fire fighters in LEOFF. As we have indicated above, we disagree with this contention. What the legislature chose to do about fire fighters at one point in time is not constitutionally controlling as to what it must do in the way of classification of port police officers several years later.
Respondents have failed to satisfy their heavy burden of proof that the classification is manifestly arbitrary, unreasonable, inequitable and unjust. Childers v. Childers, 89 Wn.2d 592, 604-05, 575 P.2d 201 (1978). We hold that
Reversed.
UTTER, C.J., and ROSELLINI, STAFFORD, BRACHTENBACH, HOROWITZ, and WILLIAMS, JJ., concur.
While it is true the legislature could have used the word “municipal” rather than the word “city“, the legislature did not do so. The word “municipal” includes cities. The word “city“, however, does not include all municipalities. The word “municipal” is broader than the word “city“. State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 621-22, 33 P.2d 94 (1934).
The language here is clear. If the language of a statute is clear and unambiguous there is no proper place for construction. State v. Roth, 78 Wn.2d 711, 714, 479 P.2d 55 (1971); State ex rel. Hagan v. Chinook Hotel, Inc., 65 Wn.2d 573, 578-80, 399 P.2d 8 (1965); State v. Spino, 61 Wn.2d 246, 248-49, 377 P.2d 868 (1963); State v. Houck, 32 Wn.2d 681, 684, 203 P.2d 693 (1949); Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 507, 104 P.2d 478 (1940).
It is not a judicial function to add words to a statute even if it appears the omission was a legislative oversight. Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 403, 573 P.2d 10 (1977); State v. Rochelle, 11 Wn. App. 887, 890, 527 P.2d 87 (1974); Knowles v. Holly, 82 Wn.2d 694, 703, 513 P.2d 18 (1973). The trial court erred because the remedy granted violates this principle of statutory construction. A court may not add to a statute, even if that addition seems necessary to make the statute constitutional. We said in Orians v. James, 84 Wn.2d 819, 529 P.2d 1063 (1974): “To say that the law does not mean what it plainly states because it has been judicially interpreted to mean something else . . . is in fact illogical.” Orians v. James, supra at 822. That case dealt with limiting the application of a statute. How much more illogical is it to extend the operation of a statute?
I agree with the majority that the classification excluding Port police from the LEOFF retirement system is valid. I
For the reasons stated by the majority and for the additional reason stated herein, I would reverse.
DOLLIVER, J. (dissenting)—I agree with the majority‘s position as to
The principle of equal protection does not require that things different in fact be treated in law as though they were the same. It does require, however, that those who are similarly situated be similarly treated. Tussman & tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949); Jenkins v. State, 85 Wn.2d 883, 540 P.2d 1363 (1975). When a statute provides that one class is to receive different treatment from another, equal protection guaranties require that: (1) the legislation must apply alike to all persons within the designated class; and (2) reasonable grounds must exist for making a distinction between those who fall within the class and those who do not. Belancsik v. Overlake Memorial Hosp., 80 Wn.2d 111, 492 P.2d 219 (1971); Jenkins v. State, supra; Rinaldi v. Yeager, 384 U.S. 305, 16 L. Ed. 2d 577, 86 S. Ct. 1497 (1966). The equal protection clause of the Fourteenth Amendment denies to states the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 64 L. Ed. 989, 40 S. Ct. 560 (1920).
I believe the exclusion of the Port police from the LEOFF system is irrational: persons similarly situated are being dissimilarly treated and the reasons given by the majority for excluding Port police from LEOFF are based on criteria wholly unrelated to the objectives of the LEOFF statute.
On the matter of the solvency and integrity of the LEOFF fund, the majority cites Caughey v. Employment Security Dep‘t, 81 Wn.2d 597, 599, 503 P.2d 460, 56 A.L.R.3d 513 (1972), and states: “When the state administers a finite fund, a statutory discrimination will not be set aside if any state of facts can reasonably be conceived to justify it.” The majority neither argues nor demonstrates the inclusion of the Port police presents a danger to LEOFF. The Caughey court relied on Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). Except in the fantasies of children, all funds are, of course, finite—i.e., “having definite or definable limits or boundaries“. Webster‘s Third New Int‘l Dictionary (1971). The sort of calculus urged by the majority would allow legislators to pick and choose classifications with impunity, secure in the knowledge that if any fund was involved they could point to it as being a “finite fund“.
Yet an analysis of Dandridge and Caughey indicates the courts had considered factors other than the simple finitude of funds in holding equal protection inapplicable. Those factors distinguish Dandridge and Caughey from the case at hand. In neither Dandridge nor Caughey did the claimed recipients contribute directly to the “fund” from which payments were demanded. Dandridge involved public welfare moneys; the Caughey claim was for unemployment benefits. See
Finally, the holding in Dandridge, on which the Caughey court relied, is not based on the finite character of the fund. Rather, the Supreme Court said:
We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State‘s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient‘s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.
(Footnote omitted.) Dandridge, at 486. The finite character of LEOFF is not an adequate bar to membership by persons similarly situated and does not overcome the requirements of equal protection.
The second ground is that the territorial responsibility of Port police is not identical with city and county police officers, yet the majority concedes the duties of the Seattle Port police are identical with the duties of city and county police. See
Next, the majority claims that county and city police are under civil service and the Port police are not, and that this is a sufficient distinction. Without discussing whether the basic proposition is a reasonable classification, the fact is
Finally, the majority argues that, since port districts have authority to establish their own pension and retirement systems (
to provide for an actuarial reserve system for the payment of death, disability, and retirement benefits to law enforcement officers and fire fighters, and to beneficiaries of such employees, thereby enabling such employees to provide for themselves and their dependents in case of disability or death, and effecting a system of retirement from active duty.
Since this “classification” of the employer does not exclude one group of its law enforcement and fire fighting employees from LEOFF, it is not a rational classification to exclude another group. There is not one system for fire fighters and another for law enforcement officers. There is only one system—LEOFF.
A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).
(Italics mine.) Jenkins v. State, 85 Wn.2d 883, 888, 540 P.2d 1363 (1975).
The legislative scheme which deprives the Port police of the benefits of LEOFF is arbitrary and irrational and, therefore, is an unconstitutional legislative classification.
On this basis, I would affirm the trial court.