Department of Social & Health Services v. Olver , 79 Wash. App. 558 ( 1995 )

Agid, J.

(concurring) — I agree with the majority that former RCW 43.20B.140 is not a retroactive statute. I do not agree we need to weigh the factors for and against applying it because it is clear from statutory language that the statute operates prospectively only.

The majority acknowledges that, under the plain language of the statute, the event that triggers its application is the creation of the recipient’s estate. Notwithstanding the plain language, it also discusses the effects of the statute on existing law and on the heirs’.expectations. In my view, both considering these factors and applying the "process of judgment” analysis found in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 1499, 128 L. Ed. 2d 229 (1994), is superfluous unless it is unclear from the statute what the Legislature intended the precipitating event to be.

The majority states that DSHS advocates a retroactive application of the statute. This formulation of the issue is not entirely precise. The parties agree the statute cannot be applied retroactively. What they do not agree on is whether the statute operates retroactively. The resolution of this issue hinges solely on the identification of the event that triggers the statute’s application.

A statute is retroactive if it affects rights vested or actions taken before the statute became effective. We have concluded that receipt of benefits is not the precipitating event under former RCW 43.20B.140 because that event created no vested right in the recipient which would prevent the State from recovering money from his or her estate. Furthermore, the receipt of benefits created no liability for the recipient because disbursing assistance alone gave the State no authority to recoup the money. The statute authorizes recoupment only from estates ereated after the effective date of the amendment where the recipient leaves no surviving spouse, minor child or disabled child. Thus, although the State’s authority to recover assistance payments depends on an antecedent transaction, i.e., the receipt of benefits, the precipitating event is clearly the creation of the recipient’s estate. As the majority allows, this can be gleaned from the plain language of the statute. In my view, our analysis should end there.

Review granted at 129 Wn.2d 1003 (1996).