Kanekoa v. Washington State Dept. of Social & Health Services, 47407-9

• Citation: 95 Wn.2d 445,626 P.2d 6
• Decision Date: 26 March 1981
• Docket Number: No. 47407-9,47407-9
• Court: United States State Supreme Court of Washington
• Parties: Clark County Sheriff, Frank KANEKOA, Respondent, v. WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES, Appellant.

Page 445

95 Wn.2d 445

626 P.2d 6

Clark County Sheriff, Frank KANEKOA, Respondent, v. WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES, Appellant.

No. 47407-9.

Supreme Court of Washington, En Banc.

March 26, 1981.

Kenneth O. Eikenberry, Atty. Gen., Robert E. Mack, William C. Collins, Jr., Asst. Attys. Gen., Olympia, for appellant.

Arthur D. Curtis, Pros. Atty., Richard S. Lowry, Deputy Pros. Atty., Vancouver, for respondent.

Norman K. Maleng, King County Prosecutor, Robert I. Stier, Deputy Pros. Atty., Seattle, amici curiae.

ROSELLINI, Justice.

The Sheriff of Clark County brought this mandamus action to compel the Department of Social and Health Services to accept all convicted felons offered by the Sheriff for transfer to the reception center at Shelton.

In an affidavit resisting the order, the director of the adult corrections division declared that because of severe overcrowding at the reception center, the Department was unable to comply with RCW 72.13.090, which states that each prisoner at the reception unit shall be provided with a single cell. He further declared that to house newcomers in the halls of the institution created serious security problems and that the rate at which convicted persons were moving through the institution made it impossible to give to each case the attention necessary if proper assignment was to be effected.

The alleged reasons for the overcrowding included overcrowding at other institutions to which persons at the reception center would eventually be moved, and the increasing number of commitments from the superior courts and from the Board of Prison Terms and Paroles, following parole revocation. In addition, the Department was under a federal court order to reduce the population at the penitentiary, and the director felt that a comparable reduction at the Monroe Reformatory would also be necessary. It was the policy of the Department, the affidavit said, to pick up convicted persons in county jails as quickly as available space would allow, giving consideration to the conditions existing at the various county jails.

The responding affidavit of the Clark County Sheriff tended to show that severe overcrowding also existed at the county jail, that the jail did not meet the minimum standards subscribed by the Washington State Jail Commission, and that the Department repeatedly accepted considerably fewer than half of the persons qualified and available for transfer.

It is the position of the director that under the applicable statutes, he has the discretionary power to delay acceptance of convicted felons for what, in his judgment, are reasonable periods of time. The Sheriff maintains that it is the duty of the director to accept such persons when they are offered.

There is little ambiguity in the statutes upon the subject. RCW 10.70.020 provides that a certified transcript of the conviction and sentence shall be sufficient authority for the Sheriff to execute the sentence.

RCW 72.13.150 provides:

The superintendent of the correctional institution established by this chapter shall receive all male persons convicted of a felony by the superior court and committed by the superior court to the reception center for classification and placement in such facility as the secretary shall designate, and all persons transferred thereto by the secretary from the state reformatory and state penitentiary, and other correctional facilities of the department. The superintendent shall only receive prisoners for classification and study in the institution upon presentation of certified copies of a judgment, sentence and order of commitment of the superior court, along with other reports as may have been made in reference to each individual prisoner.

This court said in January v. Porter, 75 Wash.2d 768, 453 P.2d 876 (1969), that upon the entry of a final judgment and sentence of imprisonment, legal authority over the accused passes by operation of law to the Department of Institutions (now the Department of Social and Health Services) and the Board of Prison Terms and Paroles, and that those agencies of the executive branch bear full responsibility for executing the judgment and sentence or granting parole.

The statute provides that the superintendent of the correctional institution "shall receive all male persons convicted of a felony." Presumptively, the use of the word "shall" in a statute is imperative and operates to create a duty rather than to confer discretion. State Liquor Control Bd. v. State Personnel Bd., 88 Wash.2d 368, 561 P.2d 195 (1977). The Department concedes that the statute is mandatory, but it argues that there is no requirement that convicted felons be accepted when they are offered to the institution. It is true that the statute does not state at what time such persons shall be accepted. Nevertheless, the fact that the Department, along with the Parole Board (whose responsibilities are not at issue here), has full legal authority over, and responsibility for, a person who has been convicted of a felony, makes it clear that the Department's corresponding duty to take charge of the felon arises when the conviction is entered.

There are statutory modifications of that duty. RCW 36.63.255 provides:

Any person imprisoned in a county jail pending the appeal of his conviction of a felony and who has not obtained bail bond pending his appeal shall be transferred after thirty days but within forty days from the date judgment was entered against him to a state institution for felons designated by the director of the department of institutions: Provided, That when good cause is shown, a superior court judge may order the prisoner detained in the county jail beyond said forty days for an additional period not to exceed ten days.

Under this provision, it is evident that transfer is not to be delayed beyond 40 days after conviction, even where an appeal is pending.

RCW 72.68.040 authorizes the Department to enter into agreements with local jurisdictions providing for the detention in an institution or jail operated by the local authority of prisoners convicted of a felony and sentenced to a term in a state correctional institution. This section contemplates that local jurisdictions will be obliged to house such prisoners only if they agree to do so, and implies that compensation for such housing is appropriate.

When these two sections are read together with RCW 72.13.150, it is apparent that the legislature intended all convicted male felons, other than those retained under these provisions, to be received at the corrections center when offered for admission.

The director suggests that discretion in this matter is conferred by RCW 72.13.080, which reads in pertinent part:

(1) Subject to the rules and regulations of the department, the superintendent shall have supervision and management of the institution, ... subordinate officers and employees, and the prisoners committed or transferred to such institution and the custody of such persons until released as provided by law.

The Department has not...