THE HAMA HAMA COMPANY, Respondent, v. SHORELINES HEARINGS BOARD, Defendant, THE DEPARTMENT OF ECOLOGY et al, Appellants.
No. 43357
En Banc.
June 5, 1975.
441 | 85 Wn.2d 441
Graham, McCord, Dunn, Moen, Johnston & Rosenquist, W. H. Jaynes, Jr., William V. Vetter, and Clemans H. Barnes, for respondent.
FINLEY, J.—This is a statutory interpretation case. It involves provisions of the Shoreline Management Act of 1971 (SMA) relating to standing and time limits for appellate review of the granting of a substantial development permit to Hama Hama Co. by Mason County. The granting of the permit was appealed to the Shorelines Hearings Board by the Department of Ecology and the Attorney General. The board denied motions made by Hama Hama Co. to dismiss the appeal. Thereafter, the Superior Court for Thurston County issued a writ of certiorari and, subsequently, entered an order directing the board to dismiss the appeal because (1) the Attorney General lacked standing to appeal, and (2) the Department of Ecology‘s appeal was untimely. The Attorney General and the Department of Ecology have appealed.
Several assignments of error and counterarguments have been made, but they involve essentially three issues: (1) whether the Attorney General is a party to the appeal to this court; (2) whether the Attorney General or only the Department of Ecology has standing to appeal to the Shorelines Hearings Board from a decision of a local authority granting a substantial development permit, and what is the time limit as to the Department of Ecology and/or the Attorney General for perfecting such an appeal; and (3) what is the commencement date of the period for appealing to the SHB?
I
Parties to This Appeal
Respondent Hama Hama argues that the Attorney General is not a party to this appeal because he did not file a notice of appeal as required by ROA I-33(2) and CAROA 33(2). Hama Hama contends that only the Department of Ecology filed a notice of appeal and that it was never amended to include the Attorney General. We do not so construe the notice of appeal. It is true that in the body of the notice of appeal, reference is made only to the Department of Ecology appealing from the decision of the Superior Court. However, in the caption in the notice of appeal and in appellants’ opening brief to this court, both the
II
Standing and Time Limit To Appeal to SHB
The SMA inexplicably contains two distinct and conflicting provisions with respect to appeals from a decision of a local authority which grants a substantial development permit. On the one hand,
Respondent Hama Hama argues that these statutory provisions are reconcilable because
However, after examining the statute as a whole, we have concluded that the interpretation that most likely reflects the actual intent of the legislature is that
First, respondent‘s thesis that effect should be given to all parts of a statute is simply one of many, sometimes useful, but not inevitably controlling “extrinsic aids” or principles of statutory interpretation. Oftentimes, as in this case, this principle of statutory construction operates inconsistently with itself, and applying it positively but blindly actually produces inconsistent results. Thus, if respondent‘s thesis is accepted at face value and without considering all implications,
Second, the Shoreline Management Act of 1971 itself mandates that it be “liberally construed to give full effect to the objectives and purposes for which it was enacted.” (Italics ours.)
Third, this interpretation is supported by the familiar rule of construction that where there is a conflict between one statutory provision which deals with a subject in a general way and another provision which deals with the same subject in a specific manner, the latter will prevail. Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973); State ex rel. Phillips v. State Liquor Control Bd., 59 Wn.2d 565, 369 P.2d 844 (1962). Even a perfunctory analysis of
Finally, when a statute is ambiguous—as in the instant case—there is the well known rule of statutory interpretation that the construction placed upon a statute by an administrative agency charged with its administration and enforcement, while not absolutely controlling upon the courts, should be given great weight in determining legislative intent. Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958); White v. State, 49 Wn.2d 716, 306 P.2d 230 (1957). The primary foundation and rationale for this rule is that considerable judicial deference should be accorded to the special expertise of administrative agencies. Such expertise is often a valuable aid in interpreting and applying an ambiguous statute in harmony with the policies and goals the legislature sought to achieve by its enactment. At times, administrative interpretation of a statute may approach “lawmaking,” but we have heretofore recognized that it is an appropriate function for administrative agencies to “fill in the gaps” where necessary to the effectuation of a general statutory scheme. See Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972). It is likewise valid for an administrative agency to “fill in the gaps” via statutory construction—as long as the agency does not purport to “amend” the statute.
In the instant case, the Department of Ecology has interpreted the SMA as providing for a 45-day period in which to file an appeal, whether the permit is granted before or after adoption of a master program. WAC 173-14-120. The SHB has similarly interpreted the SMA. WAC 461-08-070(2). We perceive no compelling considerations indicating this construction is erroneous. In particular, we think it cannot be said convincingly that these agencies have arrogantly overstepped their proper functions by purporting to
The alternative is to ignore the interpretation of the SMA by the SHB and the Department of Ecology, and using different but not divine or mandatory rules of interpretation to substitute our judicial notions about the statute for those of SHB and Department of Ecology.
The dissent apparently rejects the applicability of the above rules of construction in this case and prefers to focus solely upon the time sequences of the various drafts of the legislation. The last draft is interpreted in view of the language contained in prior drafts, with the result that the greatest and, indeed, absolute or conclusive weight is given to the last draft and any additions contained therein.
The unstated assumption of such a sequential focus is that each subsequent draft is consciously, deliberately, and meticulously drafted in view of all of the language in each preceding draft. But as a very pragmatic, starkly realistic fact of life, the time constraints and pressures inherent in the legislative process may operate to prevent the legislature from functioning in such a deliberate and conscious fashion. Numerous legal scholars have recognized this and have, therefore, cautioned against over-emphasis and over-reliance upon the fact or happenstance of successive drafts as an absolute determinant, rule, or tool for interpreting a statute. See 2A Sutherland, Statutory Construction § 48.18 (4th ed. C. Sands 1973). This caveat has been stated most eloquently in Radin, Statutory Construction, 43 Harv. L. Rev. 863, 873 (1930):
Successive drafts of a statute are not stages in its development. They are separate things of which we can only say that they followed each other in a definite sequence,
and that one was not the other. But that fact gives us little information about the final form, since we never really know why one gave way to any other. There were doubtless many reasons, some of them likely enough to be personal, arbitrary, and capricious—the fondness of the draftsman for a special locution, his repugnance to another, a misconception of the associations of some word, a chance combination, and often enough a mere inadvertence. That is not to say that some conclusions, principally negative ones, can not be drawn from the legislative history of a statute. But in the end, all that we know is that the final form displaced the others, and that fact is not disputed.
(Italics ours.) Many cases have similarly expressed a disapproval of interpreting a statute by relying completely upon the sequence of its original drafts. See, e.g., Trailmobile Co. v. Whirls, 331 U.S. 40, 91 L. Ed. 1328, 67 S. Ct. 982 (1947); Andrews v. Hovey, 124 U.S. 694, 31 L. Ed. 557, 8 S. Ct. 676 (1888). Cf. Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 (1938).
This is not to imply that the sequential approach is per se an improper method of construction. On the contrary, it may serve as a useful tool under the appropriate circumstances, but even then its value should not be considered conclusive. In the instant case, the sequential approach is particularly of dubious value because the assumption on which the validity of the approach must rest—total legislative awareness of prior drafts—is negated by the fact that the SMA is replete with inconsistencies, errors, and apparent oversights. For instance, Laws of 1971, 1st Ex. Sess., ch. 286, § 2 (
These inconsistencies and oversights convince us that we should not place great faith in the assumption necessary to the validity of the dissent‘s sequential focus—that subsequent drafts of the SMA were made with complete understanding and total awareness of the subleties of prior drafts. At best, the addition contained in the last draft can be characterized only as inconsistent surplusage which need not be accorded any overriding significance.
The dissent‘s approach might have greater validity if legislative history disclosed floor comments or committee notes explaining the changes in the drafts, but even this as an extrinsic aid is not absolute. In any event, in the absence of any explanation for the changes, it is not a proper judicial function for us to speculate and attribute controlling meaning to an unexplained change that is just as likely to have occurred through happenstance. Under the circumstances surrounding the drafting and enactment of the SMA, we are convinced that we are on much safer and more reliable ground if we give greater credence to the administrative interpretation of this rather complex statute.
In sum, we hold that
III
Commencement Date Of Appeal
We have held that
Respondent Hama Hama argues that the final order should be deemed “filed” on the date shown by the post office cancellation mark stamped on the envelope. From the evidence, it could be inferred that the final order or a copy thereof was mailed on October 18, 1973, or earlier. The appeal to the SHB was finally perfected on December 3, 1973. The time span from October 18 to December 3 is 46 days, and hence, Hama Hama argues that the appeal was untimely even if
1.12.070 Reports, claims, tax returns, remittances, etc.—Filing. Except as otherwise specifically provided by law hereafter:
(1) Any report, claim, tax return, statement or other document required to be filed with, or any payment made to the state or to any political subdivision thereof, which is (a) transmitted through the United States mail, shall be deemed filed and received by the state or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other appropriate wrapper containing it; or (b) mailed but not received by the state or political subdivision, or where received and the cancellation mark is illegible, erroneous, or omitted, shall be deemed filed and received on the date it was mailed if the sender establishes by competent evidence that the report, claim, tax return, statement, remittance, or other document was deposited in the United States mail on or before the date due for filing; and in cases of such nonreceipt of a report, tax return, statement, remittance, or other document required by law to be filed, the sender files with the state or political subdivision a duplicate within ten days after written notification is given to the sender by the state or political subdivision of its
nonreceipt of such report, tax return, statement, remittance, or other document.
(Italics ours.)
However, the inapplicability of this statute to the SMA is most aptly demonstrated by the egregious results that its application could cause. If the final order were mailed but lost while in transit, then the Attorney General and/or the Department of Ecology could be totally deprived of notice of the granting of the substantial development permit. At the least, such notice to these state agencies could be prejudicially delayed if the final order were temporarily lost while in transit. Thus, if the 45-day period to file an appeal begins to run on the date the final order granting the permit is mailed or on the date shown by the cancellation mark stamped on the envelope, then the 45-day time limit in which to seek review could be substantially or totally eliminated if the final order were mailed but lost while in transit. We do not believe that the legislature intended
Rather, the general rule that a document is “filed” when it is actually received by the proper authority should be applied in the instant case. Mackey v. Champlin, 68 Wn.2d 398, 413 P.2d 340 (1966). Thus, the 45-day period commences on the date the final order granting the permit is received. In this case, receipt was on October 19 and the
In sum, we hold (1) that the Attorney General is a proper party to this appeal; (2) that the Attorney General as well as the Department of Ecology has standing to appeal to the SHB from the granting of a substantial development permit, whether the permit was issued prior or subsequent to the adoption of a local master program; (3) that the time limit for such an appeal by the Attorney General and/or the Department of Ecology is 45 days from the filing of the final order granting the permit, whether the permit was issued prior or subsequent to the adoption of a local master program; and (4) that the commencement date of the 45-day appeal period is when the final order or a copy thereof is received by the proper authorities.
For the foregoing reasons, the decision of the Superior Court should be reversed and the case remanded to the Superior Court for Thurston County for further proceedings consistent herewith. It is so ordered.
STAFFORD, C.J., and ROSELLINI, HUNTER, HAMILTON, WRIGHT, and BRACHTENBACH, JJ., concur.
HOROWITZ, J. (dissenting)—By reversing the judgment below, the court in effect and in the name of legislative intent, has read out of the Shoreline Management Act of 1971 (SMA), the unambiguous appeal provisions of
Justice Holmes once observed “[A] page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349, 65 L. Ed. 963, 41 S. Ct. 506, 16 A.L.R. 660 (1921). That history is obtainable by using the familiar, established and approved technique of noting pertinent changes in successive drafts of House Bill 584 (42d Sess. 1971).3
The SMA was originally introduced as House Bill 584 (42d Sess. 1971). The sections of the bills pertinent to our inquiry in the order in which introduced were House Bill 584, §§ 11 and 16 (42d Sess. 1971); Substitute House Bill 584, §§ 15 and 17 (42d Sess. 1971); Engrossed Substitute House Bill 584 §§ 14 and 18 (42d Sess. 1971), now
Originally, the only provisions for appeal by the department or Attorney General within a 45-day period were those contained in House Bill 584, § 16 (42d Sess. 1971). Section 11 of that house bill dealt with the issuance of substantial development permits prior to the adoption of the master plan, but made no special provision for appealing the issuance of such permits. The provisions governing appeals by the Department of Ecology within 30 days was first added in Substitute House Bill 584, § 15 (42d Sess. 1971). That provision remained substantially unchanged
The legislative history thus shows House Bill 584, § 16 (42d Sess. 1971), and successive drafts of that house bill ultimately culminating in
As a matter of draftsmanship, it might have been clearer if the latter more specific appeal provision had taken the form of a proviso to the section of the substitute bill now embodied in
2A Sutherland Statutory Construction § 47.11, at 90 (4th ed. C. Sands 1973) states:
Generally an exception is considered as a limitation only upon the matter which directly precedes it, but if a contrary intent or meaning is clearly indicated it will operate as a general limitation on all provisions of the act.
(Footnotes omitted.) See State ex rel. Wilson v. King County, 7 Wn.2d 104, 109 P.2d 291 (1941); McKenzie v. Mukilteo Water Dist., 4 Wn.2d 103, 102 P.2d 251 (1940); Bayha v. PUD 1, 2 Wn.2d 85, 97 P.2d 614 (1939).
This court in In re North River Logging Co., 15 Wn.2d 204, 207, 130 P.2d 64 (1942), quoted with approval the following rule in 1 J. Lewis, Sutherland Statutory Construction § 268, at 515 (2d ed. 1904):
“Where a statute expresses first a general intent, and afterwards an inconsistent particular intent, the latter will be taken as an exception from the former and both will stand.”
The rule is a familiar one. See 82 C.J.S. Statutes § 347(b), at 722 (1953).
The majority opinion relies on four principal arguments to support its refusal to recognize as operative
is to usurp a power which our democracy has lodged in its elected legislature. . . . A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation.
F. Frankfurter, Some Reflections on the Reading of Statutes, in 1 Benjamin N. Cardozo Memorial Lectures 215, 223
It is said ignoring
It is said
In Mercer Island v. Walker, 76 Wn.2d 607, 613, 458 P.2d 274 (1969), the court stated:
[W]here there is a conflict between a general and a special statute, covering the subject in a more definite and minute way, the specific statute will prevail.
Accord, State ex rel. Phillips v. State Liquor Control Bd., 59 Wn.2d 565, 567, 369 P.2d 844 (1962); see 82 C.J.S. Statutes § 369, at 839 (1953); Cf. ITT Rayonier Inc. v. Hill, 78 Wn.2d 700, 708, 478 P.2d 729 (1970); Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959).
The fourth argument rests on administrative construction to the effect that
Moreover, the legislature, although adopting amendments in 1973 to both
Nor can it be reasonably contended the failure of the legislature to change the result of the unreasoned administrative ruling of June 27, 1973, constitutes an acquiescence in that ruling. There is no showing the legislature was even aware of that ruling. Pringle v. State, 77 Wn.2d 569, 464 P.2d 425 (1970). Moreover, had that ruling been called to the attention of the legislature with a request for a change, the failure to make a change instead of being evidence of acquiescence could be explained on the ground the legislature might have decided to take no action in order to await the resolution of the instant litigation raising the precise question.6 Furthermore, it has been pointed out that:
Understanding the legislative process in its actual environment, it is unrealistic to attribute to legislative inaction any approval of the multitudinous facets of the law as they exist prior to judicial decision: the inaction much more often stems from a lack of time for detail-changing or from the clogging of the legislative process through pressures requiring priority attention.
Tate, The Law-Making Function of the Judge, 28 La. L. Rev. 211, 233 (1968), cited in R. Leflar, Appellate Judicial Opinions 71 (1974).
Finally, the majority opinion treats the historical approach through the examination of successive drafts of the
[T]here is a rather extensive legislative record of various and extended debate and discussion of a multitude of amendments. . . . I know I, for one, offered some 32 amendments [in 1970] and they were discussed and debated as they went through the House. Over 50 were proposed and suggested during the deliberation in the 1971 session.
The fact the appeal provisions in
Legislative intention is best fulfilled by treating
I would affirm the trial court.
UTTER, J., concurs with HOROWITZ, J.