State v. Bailey, 3524--I

• Decision Date: 12 January 1976
• Docket Number: No. 3524--I,3524--I
• Parties: STATE of Washington, Respondent, v. Melvin A. BAILEY, Appellant.
• Court: Washington Court of Appeals

Page 748

14 Wn.App. 748

544 P.2d 778

STATE of Washington, Respondent, v. Melvin A. BAILEY, Appellant.

No. 3524--I.

Court of Appeals of Washington, Division 1.

Jan. 12, 1976.

Bannister, Bruhn & Cuningham (Court-appointed), John R. Cuningham, Mount Vernon, for appellant.

Patrick R. McMullen, Skagit County Pros. Atty., Wm. H. Nielsen, Deputy Pros. Atty., Mount Vernon, for respondent.

SWANSON, Judge.

Melvin A. Bailey appeals his conviction of grand larceny by welfare fraud on the sole ground that the welfare fraud statute, RCW 74.08.331, is unconstitutional. We disagree and affirm.

Trial was to the court without a jury on agreed facts. Bailey obtained $1,420.86 in public assistance funds during a period of time when he was totally ineligible for public assistance by virtue of his receipt of $3,941.42 in wages. The trial court found that Bailey willfully, unlawfully and feloniously made a willful, false statement . . . affecting his eligibility or need for assistance when he indicated to the Department of Social and Health Services that he had received no income since the time he originally applied for public assistance,

finding of fact No. 4, and concluded that Bailey 'is guilty of the crime of Grand Larceny by Welfare Fraud, pursuant to RCW 74.08.331,' conclusion of law No. 2.

Bailey's challenge to the constitutionality of RCW 74.08.331 is twofold. The first argument is based upon the principle expressed in Olsen v. Delmore, 48 Wash.2d 545, 550, 295 P.2d 324 (1956), and reaffirmed in State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970), 'that the legislature may not constitutionally authorize the prosecutor to charge one person with the commission of a felony and another with a misdemeanor for the same act committed under the same circumstances,' State v. Sam, 85 Wash.2d 713, 714,535 P.2d 1209 (1975). Bailey contends that this principle is violated in the instant case because two other criminal statutes, RCW 74.04.250 and 74.08.055, involve elements identical to those described in RCW 74.08.331, but prescribe different penalties.

The elements of the three statutes referred to are similar, but not identical. RCW 74.08.331, ¹ the statute upon which Bailey's conviction rests, prescribes a maximum penalty of 15 years imprisonment in the state penitentiary for conduct described as grand larceny. The court in State v. Walters, 8 Wash.App. 706, 707, 508 P.2d 1390, 1392 (1973), analyzed the elements of the crime as follows:

(T)he gravamen of the statutory crime is obtaining (or attempting to obtain, or aiding or abetting another to obtain) public assistance to which one is not entitled (or greater public assistance than that to which one is justly entitled) 'by means of' one or more of the statutorily condemned devices: (1) willfully false statement (or representation or impersonation); or (2) willful failure to reveal any material fact, condition or circumstance, affecting eligibility or need, as required by law; or (3) willful failure to promptly notify the department as required by law of (A) any change in status in respect to resources, or income, or need, or family composition, etc., or (B) any other change in circumstances affecting eligibility or need for assistance; or(4) other fraudulent device.

In the instant case Bailey was convicted upon proof that he (1) obtained public assistance (2) to which he was not entitled (3) by means of a willfully false statement. Because Bailey could not have been conviction of violating either RCW 74.04.250 or 74.08.055 upon allegation and proof of these elements, his conviction does not contravene the rule of Olsen v. Delmore, supra. See State v. Canady, 69 Wash.2d 886, 891, 421 P.2d 347 (1966).

RCW 74.04.250 ² imposes criminal liability upon an applicant seeking an immediate grant of general assistance for swearing falsely in his 'sworn statement of need and resources.' Bailey's conviction under RCW 74.08.331 did not require proof that he swore falsely. In addition, Bailey was not an applicant for an immediate grant of general assistance, but for a grant of assistance under RCW 74.08.050, and the prosecutor therefore had no discretion to charge him with a gross misdemeanor under RCW 74.04.250. See State v. Seger, 1 Wash.App. 516, 463 P.2d 185 (1969), Review denied, 77 Wash.2d 962 (1970).

RCW 74.08.055 ³ says that an applicant for public assistance who willfully makes and subscribes any statement which is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct is guilty of a felony. No maximum penalty is specified. Bailey's conviction under RCW 74.08.331 did not require proof that he subscribed a statement verified by a written declaration that it was made under the penalties of perjury. ⁴ We recognize that often one who commits grand larceny by welfare fraud is also a perjurer.

If the prosecutor is able to prove each separate crime, then he could charge a person with violations of either or both statutes.

A defendant's constitutional right to equal protection of the laws is not violated by the prosecutor's exercising a discretion in deciding to prosecute or not to presecute violation of a criminal statute. The fact that this discretion extends to two or more crimes (instead of only one) does not convert this discretion into an unconstitutional delegation of legislative authority, or constitute a denial of the equal protection of the laws, even though the facts to be proven are very similar, and arise from different parts of the same series of actions by the accused defendant.

State v. Reid, 66 Wash 2d 243, 247--48, 401 P.2d 988, 991 (1965).

Bailey also points to RCW 74.04.300, which provides for a civil penalty if a recipeint obtains public assistance for which he is not eligible, contending that the existence of this statute gives the State the impermissible choice of proceeding criminally or civilly. This argument is answered by Yakima County Clean Air Authority v. Glascam Builders, Inc., 85 Wash.2d 255, 260, 534 P.2d 33, 36 (1975): 'We hold it is constitutionally permissible to provide for civil or criminal penalties, or both, for the same act.'

Bailey's second argument is that RCW 74.08.331 invalidly delegates legislative authority to the Department of Social and Health Services because it leaves to the department the determination of the amount to which a recipient is entitled and those items...