Rios v. Department of Labor & Industries ( 2002 )

Sanders, J.

(dissenting) —

Once the . . . well has been poisoned, we all must drink from it lest the incentive to correct our mistakes in a principled fashion be lost by inconsistently imposing them.[ ²³ ]

Yet another governmental agency claims it is unable to carry out its statutory duties because of inadequate financial ability. The situation is on all fours with the one we faced in Hillis v. Department of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997) where the Department of Ecology (Department) acknowledged it had a statutory duty to process water permit applications but complained it did not have the resources necessary to process them in a timely manner, if at all. Id. at 378, 387. This court, however, excused the Department’s violation of the applicants’ legal rights based on its asserted “governmental poverty.”

There the dissent complained, in vain, that the court’s decision allowed agencies to operate outside, rather than under, the law. However, that was the dissent. Now it must be acknowledged the court’s holding in Hillis and the Department’s claim in this case are without distinction.

If our current majority will not overrule Hillis, it must apply it. The luxury of applying one rule to one party and a different rule to another party is a luxury the rule of law can ill afford. We must guard against impoverishment of principle even more diligently than the executive is concerned about impoverishment of the public fisc. Since Hillis holds lack of financial resources excuses governmental violations of legal rights, the Department’s failure to provide the pesticide handlers the protection they are allegedly guaranteed by statute must be condoned for the same reason. See RCW 49.17.010, .050(4), .240(2).

I therefore dissent.

23 CLEAN v. City of Spokane, 133 Wn.2d 455, 478, 947 P.2d 1169 (1997) (Sanders, J., concurring). If it is worth saying, it is worth repeating.