George By and Through George v. Donovan

• Decision Date: 01 October 1987
• Docket Number: No. 16462,16462
• Citation: 114 Idaho 388,757 P.2d 651
• Parties: Trin GEORGE, By and Through, her next friend and mother Bonnie GEORGE, Michael Fodge, by and through his next friend and father Kermit Fodge, and Lucas Mead, by and through his next friend and mother Pamela Mead, Plaintiffs-Respondents, v. Rich DONOVAN, individually and in his official capacity as Director of the Department of Health and Welfare, Jerry Harris, individually and in his capacity as Administrator of the Division of Community Rehabilitation, Cecil Andrus, in his official capacity as Governor, and the Idaho Department of Health And Welfare, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 651

757 P.2d 651

114 Idaho 388

Trin GEORGE, By and Through, her next friend and mother Bonnie GEORGE, Michael Fodge, by and through his next friend and father Kermit Fodge, and Lucas Mead, by and through his next friend and mother Pamela Mead, Plaintiffs-Respondents, v. Rich DONOVAN, individually and in his official capacity as Director of the Department of Health and Welfare, Jerry Harris, individually and in his capacity as Administrator of the Division of Community Rehabilitation, Cecil Andrus, in his official capacity as Governor, and the Idaho Department of Health And Welfare, Defendants-Appellants.

No. 16462.

Supreme Court of Idaho.

Oct. 1, 1987.

On Rehearing June 23, 1988.

Jim Jones, Atty. Gen., James Wickham, Michael R. De Angelo, Deputy Attys. Gen., Boise, for defendants-appellants.

J. Brent Marchbanks, Boise, for plaintiffs-respondents.

DONALDSON, Justice.

Idaho Department of Health and Welfare (the Department) and related defendants appeal from an order of the district court issuing a Writ of Mandamus and enjoining them from discontinuing disability benefits to respondents, three developmentally disabled children. The court below ruled that legislative enactments mandated the continued allocation of disability benefits to respondents even though all funds appropriated by the legislature for the program under which they had been receiving benefits, the Community Developmental Disabilities Program (the CDDP), had been allocated by the Department. Because the court below has compelled the Department to do an act which is in contravention of the Idaho Constitution, we reverse.

Trin George, Michael Fodge and Lucas Mead are children who suffer, respectively, from Rett's syndrome, cerebral palsy and Down's syndrome. They are all "developmentally disabled" within the meaning of the Idaho Developmental Disabilities Services and Facilities Act of 1978 (the Act). See I.C. § 39-4604(2) (1985). Respondents had been receiving benefits pursuant to the Act in the form of speech and developmental therapy services, when, in the fall of 1985, they were informed by the Department that the benefits would be discontinued due to lack of funding. In January of 1986, respondents filed an action in district court seeking a Writ of Mandamus and an injunction restraining the Department from discontinuing the benefits.

The Department submitted an affidavit of Gary Broker, the Chief of the Bureau of Financial Services for the Department, who was responsible for overseeing the budgets of the various departmental programs, including the CDDP. Mr. Broker in his affidavit testified that for the fiscal year 1986, which began July 1, 1985, the CDDP was appropriated $4,912,300 by the Idaho Legislature and was to receive $3,347,600 in federal funds as well. See 1985 Idaho Sess. Laws ch. 130, § 2, p. 325 and ch. 199, § 1, pp. 501-02. On September 10, 1985, Governor John V. Evans, in accordance with powers granted him by the Idaho Constitution ¹ and the Idaho Legislature, ² ordered reductions in the total appropriations to the Department and many other state departments. See 1986 Idaho Sess. Laws, Executive Order No. 85-20, pp. 925-26. This measure decreased the Department's total allotment by the amount of $1,786,700. Mr. Broker testified that this holdback had the effect of a $163,324 reduction in funding to the CDDP. He further testified that federal funding was also 4.3% less than anticipated as a result of federal efforts to cut spending. In January 1986, the legislature amended the appropriation to Community Developmental Disability Services, reducing it to a level $221,100 less than the original appropriation. See 1986 Idaho Sess. Laws, ch. 1, § 39, p. 29.

Mr. Broker testified that following the allocation process all appropriated funds were allocated to the CDDP; that none of the funds appropriated to the CDDP were allocated to other programs; and that the Department, after it became aware that funding would be inadequate to provide all the services they had hoped would be possible under the CDDP, decided that rather than transferring funds to the disabilities program from other appropriated programs, it would not renew contracts for services which expired and would not fill temporary and permanent positions which became vacant.

After a hearing on the matter, the court below ruled that respondents were entitled to judgment on the pleadings and issued written findings of fact and conclusions of law. The court made the following finding of fact, among others:

"7. Defendants assert that all funds appropriated by the legislature for the community developmental disabilities program have been allocated to that program, that the funds so appropriated have been reduced by legislative and federal action, and that transferring funds from other programs would reduce the services provided by the other programs. However, on the basis of the pleadings, and Departmental documents obtained through discovery the Court finds there are funds available for the provision of the services being denied Plaintiffs in other Department programs."

Also, included in the conclusions of law, were the following:

"3. While the Department and its officials have discretion as to how to allocate available funds so as to best carry out the mandate of I.C. 39-406 et. seq., they have no discretion as to whether to provide such services to eligible developmentally disabled citizens. They must.

"4. There are funds available to the Department which are spent on services which are not statutorily mandated, as are community developmental disability services.

"5. If funds allocated to the Community Developmental Disabilities Program are insufficient to provide services to eligible developmentally disabled children, the Defendants must draw upon funds being used for non-mandated purposes."

The court then issued a Writ of Mandamus and enjoined the Department from discontinuing disability benefits to respondents.

A Writ of Mandamus is not appropriate unless the party seeking it has a clear legal right to have the act done for which he seeks the writ, and it is the clear duty of the officer to act. State ex rel. Williams v. Adams, 90 Idaho 195, 202, 409 P.2d 415, 422 (1965). I.C. § 39-4601, et. seq., imparts a clear statutory duty upon the appellants to provide respondents with the treatment and services which have been discontinued by the Department. The Act provides:

"39-4605. duties of the department.--The department shall provide appropriate services of habilitation and rehabilitation to the eligible population of developmentally disabled, and shall consult with the state council on developmental disabilities. The department shall be the primary agency responsible for the services set forth herein, and shall:

"...

"(2) Initiate and provide services which shall include, but not be limited to, community comprehensive developmental disabilities services; ...

Because I.C. § 39-4605 states that the Department "shall" provide "comprehensive developmental disability services," and because I.C. § 39-4604(8) defines "comprehensive developmental disability system" as a system of services including "individualized developmental programs" among other things, respondents contend that appellants have failed to perform a mandatory duty and that the Writ of Mandamus and injunction issued below were appropriate remedies.

We note that the instant case is not one in which the legislature has directed an administrative agency or other department within the executive branch to expend appropriated funds on a particular program and the agency or department has refused to do so in the manner directed. In the instant case, appellants have done as directed by the legislature and they have simply run out of funds.

The district court reasoned that because the Act provides the Department "shall" provide appropriate services to the developmentally disabled, the Department was required, when the appropriations for the CDDP were depleted, to transfer funds which had been appropriated to other non-mandatory programs back into the CDDP. However, such a transfer of funds from one appropriation to another, without legislative consent, is in violation of the Idaho Constitution. Article 7, § 13 of the Idaho Constitution provides: "No money shall be drawn from the treasury, but in pursuance of appropriations made by law." Interpreting this provision, we have defined an appropriation as "authority of the legislature given at the proper time and in legal form to proper officers to apply a specified sum from a designated fund out of the treasury for a specified object or demand against the state." Blaine County Investment Co. v. Gallet, 35 Idaho 102, 106, 304 P. 1066, 1070 (1922).

In Gallet, we reviewed an enactment of the legislature which empowered the Department of Reclamation to examine streams when the priority rights to them were being adjudicated, and provided further that itemized statements of the costs of such examinations and surveys, if presented to and allowed by the State Board of Examiners, were to be paid by the treasurer. We held in Gallet that inasmuch as the enactment did not purport to appropriate a particular sum, it violated § 13 of art. 7 of the Idaho Constitution. Id. at 108, 204 P. at 1072.

"As all appropriations must be within the legislative will, it is essential to have the amount of the appropriations, or the maximum sum from which the expenses could be paid, stated. This legislative power cannot be delegated nor left to the recipient to command from the state treasury sums to any unlimited amount for which he might file claims. True, the exact amount of these expenses cannot be ascertained nor fixed by the legislature when they have not yet been incurred, but it is usual and necessary to fix a maximum ... specifying the amount above which they cannot be allowed." Id. at 106-07, 204 P. at 1070-71, quoting State ex rel. Davis v. Eggars, 29 Nev. 469, 91...