Aripa v. Department of Social & Health Services

Hamilton, J.

This case is a direct appeal from the trial court's denial of petitions for alternative writs of mandamus and habeas corpus. We affirm the trial court.

Anthony F. Aripa, Jr., one of the petitioners, was an inmate of Washington State Penitentiary at Walla Walla. He has a long history of alcoholism and involvement with the criminal justice system. His alcoholism led directly to the bringing of a petition for a writ of mandamus and, in the alternative, a writ of habeas corpus to compel the Department of Social and Health Services (DSHS) to provide treatment for his severe alcohol problem. Four other inmates with similar histories of alcohol problems also brought petitions for writs of mandamus seeking the same relief.

The trial court consolidated the cases of all petitioners and, upon consideration of the issues, found no grounds upon which to issue the requested writs. Petitioners sought direct review of the trial court's judgment, and we retained their cases.

Petitioners allege they are entitled to the writs for two reasons. First, they argue that RCW 70.96A.010 et seq., and RCW 72.08.101 give rise to a statutory right to comprehensive individualized treatment for alcohol problems. They contend they have been denied this statutory right to treatment. Second, they argue denial of comprehensive alcohol treatment to inmates violates constitutional guaranties of equal protection. They raise this latter argument for the first time on appeal.

We note that at the time of oral argument petitioner Aripa, as well as three of the four other petitioners, had been discharged from custody at Walla Walla. The issues advanced could be moot as to the discharged petitioners. But since one petitioner was in custody at the time of oral argument we proceeded to consider this case. After analysis of the pertinent statutes, we find no merit to the contentions regarding treatment.

The statutes we consider are RCW 72.08.101 and RCW 70.96A.050(3). The former statute states:

The director of institutions shall provide for the establishment of programs and procedures for convicted persons at the state penitentiary, which are designed to be corrective, rehabilitative and reformative of the undesirable behavior problems of such persons, as distinguished from programs and procedures essentially penal in nature.

RCW 72.08.101. And RCW 70.96A.050(3) states:

The department shall:

(3) Cooperate with public and private agencies in establishing and conducting programs to provide treatment for alcoholics, persons incapacitated by alcohol, and intoxicated persons who are clients of the correctional system.

These two statutes could be construed to create a duty on the part of DSHS to assist in providing inmates with some form of rehabilitative alcohol treatment program. And it is undisputed that the department has in fact initiated a basic alcohol treatment program for convicted persons. Its components consist of counseling, medical, psychiatric, and psychological assistance, a monitored antabuse program, an alcohol education program, access to chapters of Alcoholics Anonymous, and follow-up referral services on release. Limited access by minimum security inmates to a full treatment facility is provided through treatment release to the Walla Walla Community Alcohol Center.

Petitioners contend, however, this program is not sufficient to meet the dictates of the above statutes. They argue that all inmates have a statutory right to comprehensive individualized alcohol treatment, including in-patient, outpatient, and intermediate care.

We are of the opinion this contention cannot be sustained. RCW 72.08.101 and RCW 70.96A.050(3) cannot be reasonably construed as a legislative mandate that certain treatment modalities should be employed by DSHS. RCW 72.08.101 merely requires DSHS to establish rehabilitative programs and procedures to correct antisocial behavior. While alcohol abuse is clearly antisocial and thus we would be justified in assuming the legislature intended that DSHS consider programs to correct it, the statute is understandably nonspecific on the precise nature and extent of corrective programs.

RCW 70.96A.050(3) does not alter this lack of specificity. The language of that statute is, if anything, more generalized than RCW 72.08.101. It merely requires DSHS "cooperate" in the establishment of treatment programs. Therefore, even when we read the two statutes together, the petitioners' proposition that individualized comprehensive alcohol treatment is statutorily guaranteed is without merit.

Petitioners urge that we go beyond the statutes already discussed and examine the policy of RCW 70.96A, the Uniform Alcoholism and Intoxication Treatment Act, and RCW 70.96A.080(3). An examination of these, they argue, establishes that there exists a right to comprehensive treatment.

The policy leading to the adoption of RCW 70.96A was recognition that alcoholism is a disease and that persons afflicted by the disease of alcoholism should be afforded treatment as opposed to criminal sanctions. State v. Kent, 87 Wn.2d 103, 106, 549 P.2d 721 (1976); RCW 70.96A.010; see Note, 50 Wash. L. Rev. 755 (1975). We support this policy; however, statutory policy statements as a general rule do not give rise to enforceable rights and duties. Whatcom County v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952); State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916). See International Union of Operating Eng'rs Local 286 v. Sand Point Country Club, 83 Wn.2d 498, 505, 519 P.2d 985 (1974). In the instant case, we find no reason to depart from the general rule. Compare Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965). Accordingly, petitioners cannot rely on the policy contained in RCW 70.96A.010 to support their contention for individualized alcohol treatment. Similarly, RCW 70.96A.080(3) provides petitioners no support. It states:

(3) The department shall provide for adequate and appropriate treatment for alcoholics, persons incapacitated by alcohol, and intoxicated persons admitted under RCW 70.96A.110 through 70.96A.140. Treatment may not be provided at a jail or prison except for inmates.

(Italics ours.) RCW 70.96A.080(3).

The prohibition of treatment at prisons, except for inmates, contained in RCW 70.96A.080(3), rather than establishing the right of inmates to a full range of programs, is clearly aimed at enforcing the previously discussed policy of the Uniform Alcoholism and Intoxication Treatment Act. By prohibiting the use of penal facilities for the treatment of persons afflicted with the disease of alcoholism, the legislature has obviously reinforced its desire to afford treatment to alcoholics rather than criminally sanction such persons.

Moreover, we note that this statutory provision, like the others upon which petitioners rely, is nonspecific as to type of treatment, if any, which DSHS is required to provide. While the legislature specified adequate treatment, it also required that the treatment should be appropriate. DSHS has established what appears to be an appropriate program in light of the circumstances under which inmate treatment must be carried on. Thus, even if RCW 70.96A.080(3) establishes a right to treatment, that right has not been denied to petitioners. Petitioners further argue that DSHS administrative regulations flesh out the statutory mandate for adequate and appropriate treatment specifically requiring certain individualized comprehensive treatment modalities. We disagree.

The regulations govern public treatment facilities, that is, alcoholism treatment facilities. WAC 275-15-010(1); WAC 275-15-030(9) and (10). The penitentiary is not an alcoholism treatment facility. Further, the purpose of the regulations

is to provide standards and procedures for departmental approval of public or private alcoholism treatment facilities to fix fees to be charged by the department for inspections of approved facilities or facilities seeking approval, and to set forth rules for the acceptance of persons into approved public treatment programs.

WAC 275-15-010(1).

This purpose does not support interpreting the regulations as a legislative or administrative statement of rights. The regulations are clearly aimed at standards for facilities, not rights for clients. We hold, therefore, that neither the statutes nor the regulations give petitioners a right to a particular manner of alcohol treatment. The statutes require DSHS, in its discretion, to establish programs and procedures designed to be corrective, as distinguished from penal in nature.

Mandamus lies to compel discretionary acts of public officials when they have totally failed to exercise their discretion to act, and therefore it can be said they have acted in an arbitrary and capricious manner. Once officials have exercised their discretion, mandamus does not lie to force them to act in a particular manner. O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969); State ex rel. Tubbs v. Spokane, 53 Wn.2d 35, 38, 330 P.2d 718 (1958); Lillions v. Gibbs, 47 Wn.2d 629, 633, 289 P.2d 203 (1955). Thus, if DSHS exercised discretion in providing inmate alcohol treatment, petitioners cannot successfully force it, by mandamus, to provide a particular manner of treatment.

In this case, DSHS exercised its discretion in the area of rehabilitative alcohol programs by providing a basic alcohol treatment program at the Washington State Penitentiary at Walla Walla. In light of the undisputed findings and unchallenged conclusions which establish that the alcohol treatment program consists of a variety of components, including the credibly successful Alcoholics Anonymous program, we cannot say DSHS officials exercised their discretion in an arbitrary and capricious manner. A writ of mandamus is therefore inappropriate. Accordingly, on this score, we affirm the trial court's denial of the request for alternative writs of mandamus or habeas corpus.

Petitioners also argue the existing alcohol treatment program is violative of equal protection. This argument was not addressed to the trial court.

Petitioners have no fundamental right to rehabilitation. Bresolin v. Morris, 88 Wn.2d 167, 558 P.2d 1350 (1977). We have consistently held that except for cases involving denial of fundamental constitutional rights in criminal trials or contentions which affect jurisdiction of the court (see, e.g., State v. Lampshire, 74 Wn.2d 888, 447 P.2d 727 (1968), and Kueckelhan v. Federal Old Line Ins. Co. (Mut.), 69 Wn.2d 392, 418 P.2d 443 (1966)), constitutional issues not presented to or considered by the trial court will not be considered on appeal. Robinson v. Peterson, 87 Wn.2d 665, 675, 555 P.2d 1348 (1976). We therefore do not reach petitioners' equal protection challenge. In any event, we are not seriously impressed with the challenge.

The trial court action is affirmed.

Wright, C.J., and Rosellini, Stafford, Brachtenbach, Dolliver, and Hicks, JJ., concur.