All Around Underground, Inc. v. Washington State Patrol

Johnson, J.

(dissenting) — The majority improperly assumes the legislature’s powers by unilaterally curtailing the state patrol’s lawful exercise of its legislatively granted power. It is the legislature’s responsibility, not this court’s, to dictate the scope of an agency’s authority. If the legislature mistakenly vests an agency with the power to limit its agents’ discretion, that is an excess for the legislature to fix, not the courts. While the state patrol’s blanket rule of mandatory impoundment may be harsh, and even ill advised, that does not mean that the legislature did not grant it the power to make the rule in the first place. Because this is a matter for the legislature to address, not the courts, I dissent.

In amending RCW 46.55.113 in 1998, the legislature made several findings:

Suspended drivers are more likely to be involved in causing traffic accidents, including fatal accidents, than properly licensed drivers, and pose a serious threat to the lives and property of Washington residents. . . . [SJuspended drivers are three times more likely to kill or seriously injure others in the commission of traffic felony offenses than are validly licensed drivers. . . . Because of the threat posed by suspended drivers, all registered owners of motor vehicles in Washington have a duty to not allow their vehicles to be driven by a suspended driver.

Despite the existence of criminal penalties for driving with a suspended or revoked license, an estimated seventy-five percent of these drivers continue to drive anyway. Existing sanctions are not sufficient to deter or prevent persons with a suspended or revoked license from driving. . . . Vehicle im-poundment will provide an immediate consequence which will increase deterrence and reduce unlawful driving by preventing a suspended driver access to that vehicle. Vehicle impoundment will also provide an appropriate measure of accountability for registered owners who permit suspended drivers to drive their vehicles.

Laws of 1998, ch. 203, § 1 (emphasis added).

As amended, RCW 46.55.113 grants municipalities and state law enforcement agencies the authority to impound a vehicle that is driven or controlled by a person either under the influence of drugs or alcohol or without a valid operator’s license:

Whenever the driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.51.504 or of RCW 46.20.342 or 46.20.420, the vehicle is subject to impoundment, pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.

Pursuant to RCW 46.55.113, the Washington State Patrol promulgated WAC 204-96-010:

When the driver of a vehicle is arrested for a violation of:

RCW 46.61.502 Driving under the influence,

RCW 46.61.504 Physical control of vehicle under the influence,

RCW 46.20.342 Driving while license suspended or revoked,

RCW 46.20.420 Operation of motor vehicle under other license/permit prohibited while suspended or revoked,

the arresting officer shall cause the vehicle to be impounded.

The question before this court is whether WAC 204-96--010 exceeds the grant of authority in RCW 46.55.113. It does not.

Although the majority correctly concludes the statute does not mandate impoundment of every vehicle driven in violation of RCW 46.61.502, 46.61.504, 46.20.342 or 46.20.420, it falls far short of properly addressing the argument that the legislature impliedly delegated the authority to municipalities and state agencies to impound every such vehicle.

The language of RCW 46.55.113 is plain: vehicles driven in violation of the enumerated statutes are subject to impoundment pursuant to local ordinance or state agency rule at the direction of a law enforcement officer. The legislature chose to permit local governments and state agencies, including the Washington State Patrol, to promulgate the rules defining when the vehicles will be impounded. Therefore, a proper analysis of RCW 46.55.113 presents only three questions: (1) whether a vehicle was driven in violation of RCW 46.61.502, 46.61.504, 46.20.342 or 46.20.420; (2) whether a local ordinance or state agency rule authorizes impoundment for such a violation; and (3) whether the impoundment was at the direction of a law enforcement officer.

Contrary to the majority’s assertion, there is no similarity between the state patrol’s regulation and the regulation at issue in State v. Munson, 23 Wn. App. 522, 597 P.2d 440 (1979). In Munson, the “Washington State Legislature made fishing areas open unless specifically closed by department regulations.” Munson, 23 Wn. App. at 524. The Department of Fisheries, on the other hand, made fishing areas closed unless specifically opened by department regulations. By substituting its judgment for the legislature’s and closing all fishing areas, the department exceeded its grant of statutory authority. In contrast, here the legislature made certain vehicles subject to impoundment “pursuant to applicable local ordinance or state agency rule.” RCW 46.55.113. The legislature expressly delegated to municipalities and state agencies the power to determine whether those same vehicles will in fact be impounded. The state patrol has not substituted its judgment for that of the legislature—it has simply exercised its lawfully granted authority.

The majority consistently emphasizes that the statute permits impoundment only “at the direction of a law enforcement officer.” RCW 46.55.113. See majority at 153, 154, and 156. But it is apparent that the majority misreads “direction” as “discretion.” Nothing in the plain language of RCW 46.55.113 requires or even suggests that the decision must be a matter of individual officer discretion. Rather, the legislature granted the discretion in implementing RCW 46.55.113 to municipalities and state agencies. The legislature authorized, or made “subject to impoundment,” certain vehicles, which may then be impounded “pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.” RCW 46.55.113 (emphasis added). Nothing in RCW 46.55.113 mandates that individual officers must exercise discretion in deciding whether to impound the vehicles; in fact, the statute clearly places that discretion in local lawmakers and agency policy makers. Law enforcement officers must direct the impoundment simply as a reflection of their role as law enforcers. It does not mean that officers must individually exercise their personal discretion.

The majority willfully ignores the plain language of RCW 46.55.113 and the plain fact that the legislature amended RCW 46.55.113 for a reason. While automatic impoundment may not be the wisest rule, it is clearly within the state patrol’s authority under RCW 46.55.113 to make such a rule. Because the majority ignores the plain language of the law and substitutes its own judgment for that of the legislature, I dissent.

Madsen, Ireland, and Bridge, JJ., concur with Johnson, J.