Charron v. Miyahara

• Decision Date: 06 February 1998
• Docket Number: No. 21228-5-II,21228-5-II
• Citation: 90 Wn.App. 324,950 P.2d 532
• Parties: Vallan T. CHARRON, Citizens For Affordable Denture Care, And Gary Fox, Board of Denture Technology, Appellants, v. Bruce MIYAHARA, Secretary, Washington State Department Of Health, Respondents.
• Court: Washington Court of Appeals

Page 324

90 Wn.App. 324

950 P.2d 532

Vallan T. CHARRON, Citizens For Affordable Denture Care, And Gary Fox, Board of Denture Technology, Appellants, v. Bruce MIYAHARA, Secretary, Washington State Department Of Health, Respondents.

No. 21228-5-II.

Court of Appeals of Washington Division 2.

Feb. 6, 1998.

Laura L. Wulf, Assistant Attorney General, Atty. Gen. Office, Olympia, for Respondents

Wallace M. Rudolph, Orlando, FL., for Appellants.

HUNT, Judge.

Appellant Vallan Charron is a member of

Citizens for Affordable Denture Care. Appellant Gary Fox is a member of the Board of Denture Technology. They appeal dismissal of their constitutional challenges to portions of Laws of 1995, ch. 198 and ch. 336, which they claim violate the single subject and title specificity provisions of the Washington State Constitution, art. II, § 19. As to their challenge to SSB 5308, we reverse. As to their challenge to SSB 5365, we affirm.

FACTS

A. Legislative History

In 1994, the voters passed Initiative 607, allowing persons other than dentists to make and sell dentures. The initiative also created a new regulatory Board of Denture Technology (the Board) ¹; added a new chapter governing "denturists" (RCW 18.30); and amended several sections of the Uniform Disciplinary Act (UDA) to include denturists (RCW 18.130). See Laws of 1995, ch. 1.

In April 1995 the Legislature unanimously passed two bills amending Initiative 607--Substitute Senate Bills (SSB) 5308 and 5365 (codified as Laws of 1995, ch. 198 and ch. 336, respectively). SSB 5308 was entitled "AN ACT Relating to the use of examinations in the credentialing of health professionals; amending RCW 18.25.030, 18.32.050, 18.34.080, 18.29.021, 18.29.120, 18.53.060, 18.54.070, 18.64A.020, 18.74.035, 18.83.070, 18.83.072, 18.92.030, 18.92.100, 18.108.030, 18.108.050, 18.108.073, 18.30.020, 18.30.080, 18.30.090, 18.30.100, 18.30.110, 18.30.130, and 18.30.140; reenacting and amending RCW 18.74.023; adding a new section to chapter 18.130 RCW; repealing RCW 18.30.070; and declaring an emergency." Laws of 1995, ch. 198. This bill transferred much of the new Board's regulatory authority to the Secretary of the State Department of Health (the Secretary).

SSB 5365 was entitled "AN ACT Relating to the uniform disciplinary act; amending" several sections of RCW 18.130; adding new sections to RCW 18.30 and RCW 18.130, and "declaring an emergency." Laws of 1995, ch. 336. This bill substituted the Secretary for the Board as the disciplinary authority for denturists.

The Governor signed both bills into law in May 1995.

B. Procedural History

Charron and Fox filed an original action in the Washington State Supreme Court against the Secretary, Bruce Miyahara, challenging the constitutionality of the two legislative acts. They argued the acts were adopted in violation of Const. art. II, §§ 19, 38, and 41. ² Pursuant to RAP 16.2(d) a Supreme Court commissioner transferred the action to Thurston County Superior Court, which rejected the constitutional challenges and dismissed the claims.

Charron and Fox appealed to the Supreme Court. A court commissioner granted, in part, the Secretary's RAP 18.14 motion on the merits, affirming the trial court's ruling that the two acts comply with Const. art. II, § 38 and Const. art. II, § 41. Charron and Fox did not move to modify; thus the commissioner's affirmance remains unchallenged. The Supreme Court transferred the remaining issue to this court: whether the bills were adopted in violation of Const. art. II, § 19.

ANALYSIS

We begin by noting the well-settled rule that statutes are "presumed constitutional, and the challenger bears a heavy burden to overcome that presumption." State Fin. Comm. v. O'Brien, 105 Wash.2d 78, 80, 711 P.2d 993 (1986). "[A]ny reasonable doubts are resolved in favor of Const. art. II, § 19 contains two prohibitions regulating the title of bills:

constitutionality." Washington Fed'n of State Employees v. State, 127 Wash.2d 544, 556, 901 P.2d 1028 (1995). The titles of the challenged bills should be "liberally construed so as to sustain the validity of a legislative enactment." State v. Grisby, 97 Wash.2d 493, 498, 647 P.2d 6 (1982) (citing Water Dist. 105 v. State, 79 Wash.2d 337, 485 P.2d 66 (1971)).

(1) No bill shall embrace more than one subject (the purpose of which is to avoid hodgepodge and 'logrolling' legislation); and (2) no bill shall have a subject which is not expressed in the title (the purpose of which is to notify the members of the legislature and the public of the subject matter of the proposed legislation).

Power, Inc. v. Huntley, 39 Wash.2d 191, 198, 235 P.2d 173 (1951). We first address the second prohibition, which is dispositive.

A. Subject Expressed in the Title

On review, this court "examines the body of the act to determine whether the title reflects the subject matter of the act." Federation of Employees, 127 Wash.2d at 556, 901 P.2d 1028 (citing State ex. rel. Washington Toll Bridge Auth. v. Yelle, 32 Wash.2d 13, 23, 200 P.2d 467 (1948)).

[T]he title of an act need not be an index to the contents of the legislation that follows, nor need it express in detail every phase of the subject which is dealt with by the enactment ... it is sufficient if the title gives such notice as should reasonably lead to an inquiry into the body of the act itself, or indicates, to an inquiring mind, the scope and purpose of the law.

Yelle, 32 Wash.2d at 25-26, 200 P.2d 467 (emphasis added); See also State v. Broadaway, 133 Wash.2d 118, 125, 942 P.2d 363 (1997).

There are two classes of legislative act titles--general and restrictive. As discussed below, the title of SSB 5308 is restrictive; whereas the title of SSB 5365 is general.

1. SSB 5308--Examinations and Credentialing Bill/Restrictive Title

A restrictive title "is one where a particular part or branch of a subject is carved out and selected as the subject of the legislation." ... A restrictive title is "narrow," as opposed to [a general title which is] broad.... It is of specific rather than generic import.... A restrictive title expressly limits the scope of the act to that expressed in the title.

Broadaway, 133 Wash.2d at 127, 942 P.2d 363 (citations omitted). In Broadaway, the Washington Supreme Court recently reviewed the legislative title of Initiative 159, "An Act Relating to increasing penalties for armed crimes...." Broadaway, 133 Wash.2d at 124, 942 P.2d 363; Laws of 1995, ch. 129. The court held that the legislative title of Initiative 159 was restrictive rather than general in that it "carves out an area of criminal offenses, armed crime, and limits its scope to increasing penalties for armed crime." Broadaway, 133 Wash.2d at 127-28, 942 P.2d 363 (emphasis added).

Similarly, the title of SSB 5308 is restrictive. SSB 5308 is entitled "AN ACT Relating to the use of examinations in the credentialing of health professionals...." It carves out a specific area, namely credentialing of health professionals, and further limits its scope to the use of examinations in credentialing. ³

If a legislative title is restrictive, "it will not be regarded so liberally, and provisions which are not fairly within such restricted title will not be given force." Yelle, 32 Wash.2d at 26, 200 P.2d 467 (citations omitted) (emphasis added). "[T]he body of the act must be confined to the particular portion of the subject which is expressed in the limited title. The courts cannot enlarge the scope of the title." Gruen v. State Tax Comm'n, 35 Wash.2d 1, 23, 211 P.2d 651 (1949), overruled on other grounds by State ex. rel Washington State Fin. Comm. v. Martin, 62 Wash.2d 645, 384 P.2d 833 (1963).

Charron and Fox challenge sections 18 through 25 of SSB 5308. We hold that the majority of these provisions do not fall "fairly within" the restrictive title.

a. Sections 18 and 20 through 24; Substitution of Secretary for the Board

Section 18 and sections 20 through 24 of SSB 5308 simply eliminate the Board's powers and transfer them to the Secretary. ⁴ Several of these powers are unrelated to examinations, for example, setting fees and license renewal procedures. Charron and Fox argue that the bill's title did not give notice that the Board's powers, newly established by voter initiative, were being extinguished and transferred to the Secretary, whose powers were thereby expanded.

We agree and hold that sections of the bill reallocating authority from the Board to the Secretary are not "fairly within" the title's subject: "the use of examination in credentialing.... " See Yelle, 32 Wash.2d at 27-28, 200 P.2d 467 ("the term 'ferry connections' ... is not sufficient to put a reasonably intelligent person on notice that the powers of the Although the Secretary already possessed authority under RCW 18.29.120 and RCW 18.108.073 to set and administer exams and licensing standards for dental hygienists and massage practitioners, it never before had such authority over denturists. ⁵ Nothing in the title suggests the bill reallocates the relative powers of the Board and the Secretary. ⁶ Although it is reasonable that a bill addressing the use of examinations in credentialing health professionals would name the body that is to administer and regulate those exams, it does not follow that a bill so titled would remove an existing examining body, i.e., the Board, and shift power elsewhere. ⁷ The title does not give notice "or indicate[ ], to an inquiring mind the scope and

                [TBA] have purportedly become so enlarged, beyond the limited powers it formerly possessed....")
                purpose of the law."    Yelle, 32 Wash.2d at 26, 200 P.2d 467 (citations omitted) (emphasis added)
                

b. Section 19 and 25; Specific Powers of Board and Secretary

Section 25 repeals former RCW 18.30.070 (Laws of 1995, ch. 1 § 8), which addressed certain powers of the Board. Section 19 ⁸ essentially incorporates the language from former RCW 18.30.070 into RCW 18.30.080, the section addressing duties of the...