Clark County Sheriff v. Department of Social & Health Services , 95 Wash. 2d 445 ( 1981 )

Dolliver, J.

(dissenting) — The problems in penal institutions in this state brought about by overcrowding are monumental. In addition to the situation in this case, the Washington State Penitentiary is under a United States District Court order to reduce its population radically as of June 23, 1981 (Hoptowit v. Ray (No. 79-359, E.D. Wash.)), on appeal to the Ninth Circuit Court of Appeals, No. 80-3366), and similar relief has been asked for on behalf of prisoners at the State Reformatory at Monroe (Collins v. McNutt (No. 78-13V, W.D. Wash.)). I believe all elements of the criminal justice system, including the courts, ought to work together to find solutions to these problems. Cooperation, coordination, communication and good faith action among state and local penal authorities is essential and should be encouraged by the courts. Rather than take this approach, however, the majority has chosen to construe the applicable statutes as narrowly as possible and make it impossible for the parties to find reasonable and responsible solutions to their problems.

The statute which the majority relies upon as being decisive is RCW 72.13.150, which provides:

The superintendent of the correctional institution established by this chapter shall receive all male persons convicted of a felony by the superior court and committed by the superior court to the reception center for classification and placement in such facility as the secretary shall designate, and all persons transferred thereto by the secretary from the state reformatory and state peniténtiary, and other correctional facilities of the department. The superintendent shall only receive prisoners for classification and study in the institution upon presentation of certified copies of a judgment, sentence and order of commitment of the superior court, along with other reports as may have been made in reference to each individual prisoner.

I agree with the majority that the Department must in fact take the convicts and that if it cannot some agreements must be reached for local housing and for compensation to the local authorities. As the majority concedes, however, although the term "shall receive all male persons convicted of a felony" is mandatory, the statute does not state at what time the convicts must be accepted. Add to this the authority to manage the reception center granted to the superintendent under RCW 72.13.080, and it seems to me that, particularly in a time of gross overcrowding in the corrections system, this court, within the statutes and its power, ought to allow state corrections officers and local officials to work toward the accommodation and resolution of their problems and not affirm inflexible mandates. I see nothing in the existing legislation which would prevent this nor do I believe it would be contrary to legislative intent.

While the majority certainly will have determined the winners and losers in this lawsuit, it will have simply abandoned any effort to require the parties to work out their differences so the welfare of all of the citizens of the State might be served.

The prospect for constructive action still exists. Statements to the court and affidavits in the record indicate the jails in some counties are both secure and uncrowded and that the backlog of prisoners in county jails from November 1979 to November 1980 ranged from 0 to 150. The record also shows that the Department of Social and Health Services has yet to adopt any rules or regulations pertaining to the regulation of prisoners. It has not attempted to negotiate intercounty/State agreements to help accelerate this critical emergency until there can be some relief in the form of new or expanded corrections facilities. There is much which can be done if the parties are allowed and required to work together without the rigid strictures of the order of the trial court.

Rather than affirm the writ, we should remand the matter to the Clark County Superior Court so that a more flexible, less draconian relief could be provided. At the very least, the implementation of the writ should be delayed for a reasonable time to see if the parties can reach a compromise. If this occurs the order would be unnecessary. I believe this approach could lead to some imaginative, constructive — and legal — provisions for relief which could be reached between the Department of Social and Health Services and Clark County and which would meet with the approval of the court. Furthermore, the Department of Social and Health Services could then, through regulation and agreement, work out any problems with the other 38 counties rather than being bound under the harsh, inflexible and in the final analysis not very helpful mandate of the majority opinion.

I dissent.