Hart v. Department of Social and Health Services

• Decision Date: 18 August 1988
• Docket Number: No. 54642-8,54642-8
• Citation: 111 Wn.2d 445,759 P.2d 1206
• Parties: Linda HART, Petitioner, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.
• Court: Washington Supreme Court

Page 445

111 Wn.2d 445

759 P.2d 1206

Linda HART, Petitioner, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 54642-8.

Supreme Court of Washington En Banc.

Aug. 18, 1988.

Robert A. Izzo, Tacoma, for petitioner.

Kenneth Eikenberry, Atty. Gen., Morton A. Tytler, Asst. Atty. Gen., Olympia, for respondent.

DOLLIVER, Justice.

Plaintiff Linda Hart challenges the constitutionality of the procedures under which she was denied an unconditional paramedic certificate. We dismiss the appeal as moot and decline to invoke the continuing and substantial public interest exception as plaintiff urges.

Linda Hart was initially certified as a paramedic in 1982. Certification as a physician's trained mobile intensive care paramedic (paramedic) is a limited license to practice medicine under the supervision of a licensed medical doctor. Department of Social and Health Services (DSHS) is authorized to certify paramedics. RCW 18.71.200(3)(c). Initial certification is valid for 2 years. RCW 18.71.205(2). Recertification for another 2 years is granted "upon proof of continuing satisfactory performance and education". RCW 18.71.205(3). The specific criteria for recertification are set forth in WAC 248-15-080(2).

Linda Hart's initial certification was to expire on October 31, 1984. In seeking recertification, Hart requested a recommendation from her emergency medical services (EMS) medical program director whose recommendation is an element of recertification. WAC 248-15-080(2)(c). Concerned with Hart's abilities and skills, the medical program director recommended DSHS issue her a 6-month modified certificate. DSHS issued a modified paramedic certificate to Hart, allowing her to work only under supervision until her EMS medical program director removed the condition.

Hart appealed the issuance of the modified certificate to DSHS as a contested case. An administrative law judge affirmed the issuance of the modified certificate. A DSHS review judge refused to review the decision. The Pierce County Superior Court affirmed. Hart's appeal to Division Two of the Court of Appeals was dismissed as moot by the Court Commissioner because Hart's modified certificate had expired June 30, 1987. The Commissioner held that, even if the court found for Hart, the court could not require DSHS to issue a new unconditional certificate. After Hart's motion to modify the Commissioner's order was denied, she petitioned this court for discretionary review, which we accepted.

Hart argues WAC 248-15-080(2) is void for vagueness; is an unlawful delegation of legislative authority; does not authorize EMS medical program directors to independently investigate paramedics; and the application of the regulation denied her due process. As recognized below, the only issue not controlled by settled law and not clearly lacking in merit is whether DSHS denied Hart due process by modifying her paramedic certificate as recommended by Hart's EMS medical program director. Hart asserts the recommendation from her medical program director is binding upon DSHS under the regulation and, because this decision is unreviewable, she has been denied due process. Hart's due process claim is moot because the limited certificate in question has expired and this court can no longer provide an effective remedy by ordering the issuance of an unconditional certificate. See In re Cross, 99 Wash.2d 373, 377, 662 P.2d 828 (1983).

"It is a general rule that, where only moot questions or abstract propositions are involved, ... the appeal ... should be dismissed." Sorenson v. Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). A recognized exception to this general rule lies within the court's discretion when "matters of continuing and substantial public interest are involved." Sorenson, at 558, 496 P.2d 512.

The use of the continuing and substantial public interest exception in moot cases has increased significantly in the last 15 to 20 years. Apparently first used in Washington in 1937 to issue a decision in a moot case, State ex rel. Yakima Amusement Co. v. Yakima Cy., 192 Wash. 179 183, 73 P.2d 759 (1937), the exception has been used in moot cases at least 34 times by Washington appellate courts. The exception also seems to have been rejected by a majority or advocated by a dissent in another 14 cases. The overwhelming number of these cases has arisen since 1965, with over half of all the public interest exception cases arising in the 1980s.

After finding the exception inapplicable in two moot cases in 1939 and 1942, the exception was not used again until 1965. See National Elec. Contractors Ass'n v. Seattle School Dist. 1, 66 Wash.2d 14, 400 P.2d 778 (1965) (statutory interpretation of school district's bidding procedures); Deaconess Hosp. v. State Hwy. Comm'n, 66 Wash.2d 378, 399, 403 P.2d 54 (1965) (statutory interpretation of authority to plan site of million-dollar highway construction project).

In 1972, this court adopted criteria to consider in deciding whether a matter, though moot, is of continuing and substantial public interest and thus reviewable. See Sorenson v. Bellingham, supra (constitutional challenge to ordinance requiring property ownership as a qualification for certain elected offices). The three factors considered essential are: (1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur. In re Cross, supra, 99 Wash.2d at 377, 662 P.2d 828 (citing Sorenson v. Bellingham, 80 Wash.2d at 558, 496 P.2d 512). Arguably a fourth factor exists, that being the level of genuine adverseness and the quality of advocacy of the issues. See Washington State Comm'l Passenger Fishing Vessel Ass'n v. Tollefson, 87 Wash.2d 417, 419, 553 P.2d 113 (1976) (mootness exception not used though applicable because issues inadequately presented); Everett v. Van Dyke, 18 Wash.App. 704, 705-06, 571 P.2d 952 (1977) (mootness exception not used though applicable because parties not genuinely adverse). Cf. Orwick v. Seattle, 103 Wash.2d 249, 253, 692 P.2d 793 (1984) (mootness exception not used because case became moot before trial). But cf. Seattle v State, 100 Wash.2d 232, 250, 668 P.2d 1266 (1983) (Rosellini, J., dissenting) (asserting that a different fourth factor exists; the likelihood issues in short-lived controversies will escape review).

Since Sorenson, the Supreme Court has used the exception to issue decisions in 24 moot cases, 15 of these in the 1980s. The Court of Appeals has used the exception in seven moot cases since Sorenson, six times in the 1980s. Since 1972 eight cases in the Supreme Court have otherwise discussed but not applied the exception, six of these in the 1980s. Three cases in the Court of Appeals have otherwise discussed but not applied the exception since 1972.

The continuing and substantial public interest exception has been used in cases dealing with constitutional interpretation, see, e.g., Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 54, 615 P.2d 440 (1980); the validity and interpretation of statutes and regulations, see, e.g., In re Wilson, 94 Wash.2d 885, 887, 621 P.2d 151 (1980); and matters deemed sufficiently important by the appellate court, see, e.g., In re Bowman, 94 Wash.2d 407, 411, 617 P.2d 731 (1980).

Most of the public interest exception cases fall into the first two categories as they tend to present issues which are more public in nature and are more likely to arise again. Further, decisions involving the constitution and statutes generally help to guide public officials. The public interest exception has not been used in statutory or regulatory cases that are limited on their facts, see, e.g., Harvest House Restaurant, Inc. v. Lynden, 102 Wash.2d 369, 685 P.2d 600 (1984) (ordinance limiting sale of liquor only one existing in the state); Tri-State Constr. Co. v. Seattle, 14 Wash.App. 476, 478-79, 543 P.2d 353 (1975) (specific statute authorizing Seattle to award public contracts in contravention of city charter when required by federal development programs), or involve statutes or regulations that have been amended. See, e.g., Foisy v. Wyman, 83 Wash.2d 22, 33, 515 P.2d 160 (1973); Grays Harbor Paper Co. v. Grays Harbor Cy., 74 Wash.2d 70, 73, 442 P.2d 967 (1968).

The third category includes cases taken by the appellate courts within their discretion because of the importance of the issues involved. See, e.g., In re Bowman, supra (case involving definition of death); Seattle v. State, supra (public campaign financing and election limit ordinance in Seattle); Mall, Inc. v. Seattle, 108 Wash.2d 369, 386, 739 P.2d 668 (1987) (Seattle's building and zoning ordinances; opinion written but not yet published when case mooted by settlement); Purchase v. Meyer, 108 Wash.2d 220, 229-30, 737 P.2d 661 (1987) (negligence of a third party supplying liquor to a minor; opinion written but not yet published when case mooted by settlement); Cathcart-Maltby-Clearview Comm'ty Coun. v. Snohomish Cy., 96 Wash.2d 201, 208, 634 P.2d 853 (1981...