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AGLO 1982 No. 24 - October 04, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

MOTOR VEHICLES ‑- FUNERAL DIRECTORS ‑- HIGHWAYS ‑- TORT LIABILITY ‑- MOTOR VEHICLES PARTICIPATING IN FUNERAL PROCESSIONS

(1) Motor vehicles otherwise lawfully participating in a funeral procession, whether or not accompanied by escort vehicles, are required to obey the instructions of any official traffic control device applicable thereto unless the particular funeral procession is escorted or controlled by a traffic or police officer who otherwise directs.

(2) A county or city ordinance purporting to provide an exemption for funeral processions not provided for by the state motor vehicle code would be invalid.

(3) A privately-employed funeral procession escort driver, acting without public agency police commission authority of any sort, may not act as a traffic officer for the purposes of RCW 46.61.050 when he is escorting a funeral procession.

(4) Although a private escort vehicle accompanying a funeral procession may be classified as a de facto emergency vehicle where such vehicle is in general compliance with the applicable regulations of the state commission on equipment, such a vehicle will not constitute ade jure emergency vehicle which will then be legally entitled to be operated as such unless it has actually been registered with, and obtains specific written authorization from, the state commission.

(5) In enacting RCW 46.90.466(4), the legislature must be deemed to have had at least a slightly different standard in mind (i.e., practicable and safe) than the "reasonable and prudent" standard contained in RCW 46.61.141(1)[46.61.145(1)].

(6) Neither RCW 46.90.466(4) nor any other statute purports to specify a particular distance of separation between vehicles in a funeral procession.

(7) A police chief's discretion in determining the adequate number of escort vehicles for a funeral procession under RCW 46.90.446(2) is limited only by the proposition that he may not act in an arbitrary or capricious manner.

                                                                 - - - - - - - - - - - - -

 [[Orig. Op. Page 2]]

                                                                 October 4, 1982

Honorable Al Williams
St. Sen., 32nd District
4801 Fremont Avenue N.
Seattle, Washington 98103                                                                                                               Cite as:  AGLO 1982 No. 24

Dear Sir:

            By letter previously acknowledged you requested our opinion on the following questions relating to traffic regulations applicable to funeral processions:

            "(1) Are the vehicles otherwise lawfully participating in a funeral procession, whether or not accompanied by escort vehicles, required, under RCW 46.90.466 or 46.90.472, to follow the traffic control device regulations of RCW 46.61.050et.seq.?

            "(2) If there is a city or county ordinance purporting to exempt, in whole or in part, the vehicles otherwise lawfully participating in a funeral procession, whether or not escort vehicles are accompanying them, from the traffic control device regulations of RCW 46.61.050 et.seg. or other state traffic laws, is such a local ordinance valid in light of the 'precedence' provisions of RCW 46.08.020?

            "(3) May a privately-employed, funeral procession escort driver, acting without public agency police commission authority of any sort, nonetheless act as a 'traffic officer' as that term is used in RCW 46.61.050 when he is escorting a funeral procession?

            "(4) Is a private escort vehicle accompanying a funeral procession to be classified as an 'emergency vehicle', within the meaning of RCW 46.04.040, where such vehicle is in compliance with the applicable regulations of the state commission on equipment?

            "(5) Is the 'practicable and safe' following standard of RCW 46.90.466(4) different from the 'reasonable and prudent' following standard of RCW 46.61.145(1)?

             [[Orig. Op. Page 3]]

            "(6) Under RCW 46.90.466(4), what distance of separation behind the immediately preceding vehicle is a vehicle deemed no longer to be a participant in a funeral procession?

            "(7) Is there a limit on a police chief's discretion in determining the adequate number of escort vehicles under RCW 46.90.466(2)?

            "(8) If the answer to the preceding question is in the affirmative, what are those limits?"

            We answer these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            RCW 46.61.050-.085 contain the provisions of the state Motor Vehicle Code which relate to traffic signs, signals and markings.  The applicability of those provisions is spelled out in RCW 46.61.050(1) as follows:

            "(1) The driver of any vehicle, every bicyclist, and every pedestrian shall obey the instructions of any official traffic control device applicable thereto placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exception granted the driver of an authorized emergency vehicle in this chapter."

            In turn, insofar as your first question is concerned, RCW 46.90.466, which relates to funeral processions, reads as follows:

            "(1) A funeral procession shall proceed to the place of interment by the most direct route which is both legal and practicable.

            "(2) A funeral procession shall be accompanied by adequate escort vehicles for traffic control purposes as determined by the chief of police.

            "(3) All motor vehicles in a funeral procession shall be identified by having their headlights turned on or by such other method as may be determined and designated by  [[Orig. Op. Page 4]] the chief of police.

            "(4) All motor vehicles in a funeral procession shall be operated as near to the right-hand edge of the roadway as is practicable and shall follow the vehicle ahead as close as is practicable and safe."

            In addition, your question refers to RCW 46.90.472 which provides that:

            "(1) No person shall unreasonable interfere with a procession.

            "(2) No person shall operate a vehicle that is not part of a procession between the vehicles of the procession.  This provision shall not apply at intersections where traffic is controlled by traffic control devices unless a police officer is present at such intersections to direct traffic so as to preserve the continuity of the procession."

            The issue posed is whether vehicles otherwise lawfully participating in a funeral procession, accompanied by escort vehicles or otherwise, are required (in the words of RCW 46.61.050(1), supra) to ". . . obey the instructions of any official traffic control device applicable thereto . . ."  We believe that they are, and thus answer this initial question in the affirmative, unless the particular funeral procession is escorted or controlled by a "traffic or police officer"1/  who otherwise directs.

            There is, in addition, no other general exemption of funeral processions from compliance with RCW 46.61.050,et seq.     Nor do either RCW 46.90.466 or RCW 46.90.472,supra, contain any language which would give rise to such an exemption.2/

             Question (2):

            Your second question involves the effect of a city or county  [[Orig. Op. Page 5]] ordinance purporting to exempt vehicles otherwise lawfully participating in a funeral procession from compliance with RCW 46.61.050,et seq., supra.  You have not, however, identified any particular county or city which may have adopted such an ordinance or provided us with a copy thereof.  Therefore, in responding, we may only speak in abstract generalities.

            RCW 46.08.020, which you have specifically cited, is also a part of the state Motor Vehicle Code.  It deals with the relationship between the state code and local vehicle and traffic regulations.  This section of the code reads as follows:

            "The provisions of this title relating to vehicles shall be applicable and uniform throughout this state and in all incorporated cities and towns and all political subdivisions therein and no local authority shall enact or enforce any law, ordinance, rule or regulation in conflict with the provisions of this title except and unless expressly authorized by law to do so and any laws, ordinances, rules or regulations in conflict with the provisions of this title are hereby declared to be invalid and of no effect.  Local authorities may, however, adopt additional vehicle and traffic regulations which are not in conflict with the provisions of this title."

            In addition, any local traffic regulation would likewise come within the purview of Article XI, § 11 of our state constitution which provides that:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            The limitation on local authority, under both the statute and the constitution, is couched in terms of conflict.  A local vehicle or traffic regulation may not conflict with the otherwise applicable provisions of the state Motor Vehicle Code.  And the test for determining the existence of a conflict, as set forth by our state Supreme Court in the oft-cited case of Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960), is whether (a) the ordinance permits or licenses that which the statute forbids or (b) prohibits that which the statute permits.

             [[Orig. Op. Page 6]]

            Under that test, we would have to conclude that a county or city ordinance such as you have described (although not identified) in your question, purporting to provide an exemption for funeral processions not provided for by the state code, would be invalid.  Such an ordinance would have the effect of sanctioning, or permitting, action prohibited by the state Motor Vehicle Code; i.e., in the sense that the state code, as above noted, has the effect of prohibiting vehicles‑-including those operated in a funeral procession‑-from disregarding the instructions of an official traffic control device ". . . unless otherwise directed by a traffic or police officer, . . ."

            Question (3):

            This question, repeated for ease of reference, asks:

            "May a privately-employed, funeral procession escort driver, acting without public agency police commission authority of any sort, nonetheless act as a 'traffic officer' as that term is used in RCW 46.61.050 when he is escorting a funeral procession?"

            Although the term "traffic officer" is not expressly defined in RCW 46.61.050(1),supra, it clearly denotes a person who functions in an official capacity for, and on behalf of, a governmental entity.  Cf.,State ex rel. Brown v.  Blew, 20 Wn.2d 47, 145 P.2d 554 (1944) and authorities cited therein.  In essence, a traffic officer acting pursuant to RCW 46.61.050(1) exercises the governmental function ofdirecting the flow of traffic even in contravention of (where appropriate) the instructions of an otherwise applicable traffic control device.

            It is, of course, nevertheless possible for a privately employed funeral procession escort driver also to hold a county, city or other public commission as a traffic or police officer.  But, in phrasing your question, you have specifically excluded that factual dichotomy.  We therefore believe that your third question, as stated, must be answered in the negative.

            Question (4):

            This question, also repeated for ease of reference, asks:

            "Is a private escort vehicle accompanying a funeral procession to be classified as an 'emergency vehicle', within the meaning of RCW 46.04.040, where such vehicle  [[Orig. Op. Page 7]] is in compliance with the applicable regulations of the state commission on equipment?"

            This inquiry, presumably, is prompted by so much of RCW 46.61.050(1),supra, as reads:

            ". . . subject to the exception granted the driver of an authorized emergency vehicle in this chapter."3/

             In this instance, wedo have an expressed statutory definition with which to deal.  RCW 46.04.040, which is part of the definitions section of the state Motor Vehicle Code, reads as follows:

            "'Authorized emergency vehicle' means any vehicle of any fire department, police department, sheriff's office, coroner, prosecuting attorney, Washington state patrol, ambulance service, public or private, which need not be classified, registered or authorized by the state commission on equipment,or any vehicle authorized in writing by the state commission on equipment. " (emphasis supplied)

            By your reference to a "private" escort vehicle, we take it that you have intentionally excluded the possibility that the escort vehicle might also be a police car or the like.  And, likewise, we would assume that it is not also an ambulance.  That leaves us, then, only with the above‑underscored portion of RCW 46.04.040.  But the test, under that portion of the statute, is whether the particular vehicle is one which has been authorized in writing by the state commission on equipment.4/   That would not be the same thing as simply being in general compliance with the applicable regulations of the state commission.

            By this we mean that only a privately-owned and operated vehicle (other than an ambulance) which has been registered with, and for which specific written authorization as been obtained  [[Orig. Op. Page 8]] from, the state commission on equipment will be ade jure emergency vehicle which will then be legally entitled to be operated as such under the exemption provided for in RCW 46.61.035, and also referred to in RCW 46.61.050(1), supra.  We should also make note, however, of the recent decision by Division I of the State Court of Appeals inBoyle v. Emerson, 17 Wn.App. 101, 561 P.2d 1110 (1977), regarding the status of an unregistered, privately owned and operated, funeral procession escort vehicle which was, nevertheless, equipped in the manner required by state commission regulations (see, RCW 46.37.194).  For that reason it was, therefore, held to have a de facto emergency vehicle at the time of the accident‑-in the context of an ensuing damage action for personal injuries sustained as a result of a collision between it and another vehicle.

In so ruling in the Boyle case, however, we believe that all the Court meant to say was that if a vehicle in a funeral procession looks, and acts, like an emergency vehicle it will be treated as one for the purposes of applying tort law in a later negligence action.  That is not to say, however, that the subject vehicle was also a de jure emergency vehicle so that, for example, the driver could not have been cited for disobeying those traffic signal directions which apply, otherwise, to motor vehicles in general.

           Question (5):

            This question refers, first, to the below underscored language of RCW 46.90.466(4):

            "All motor vehicles in a funeral procession shall be operated as near to the right-hand edge of the roadway as is practicable and shall follow the vehicle ahead as closeas is practicable and safe."  (Emphasis supplied)

            The other statute you have cited in this question is RCW 46.61.145(1) which reads:

            "The driver of a motor vehicle shall not follow another vehicle more closely than isreasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."  (Emphasis Supplied)

            RCW 46.61.145(1),supra, was originally enacted as part of § 24, chapter 155, Laws of 1965, 1st Ex. Sess. while  [[Orig. Op. Page 9]] RCW 46.90.466(4),supra, was not enacted until ten years later, as part of § 84, chapter 54, Laws of 1975, 1st Ex. Sess.  Presumably, therefore, the legislature which enacted that latter provision was aware of the different terminology in its own prior enactment.  For it is, of course, a well established principle that the legislature is presumed to be familiar with its own prior acts as well as any judicial interpretation thereof.  Accord,Ropo, Inc. V. City of Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965) and cases cited therein.  We therefore must conclude that, in enacting RCW 46.90.466(4), supra, the legislature had at least a slightly different standard in mind (i.e., "practicable and safe") than the "reasonable and prudent" standard contained in RCW 46.61.141(1)[46.61.145(1)],supra.  Otherwise, it logically would have used the latter language instead.  Cf.,Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969).

           Question(6):

            This next question asks:

            "Under RCW 46.90.466(4), what distance of separation behind the immediately preceding vehicle is a vehicle deemed no longer to be a participant in a funeral procession?"

            RCW 46.90.466(4),supra, does not purport to address this question.  Nor, so far as we can determine, does any other statute.  The question of whether or not a particular vehicle is part of a funeral procession is to be determined by all of the relevant facts and not, merely, by the precise distance between it and other vehicles in the procession.

            Questions (7) and (8):

By your seventh question you have asked whether there is a limit on a police chief's discretion in determining the adequate number of escort vehicles under so much of RCW 46.90.466, supra, as reads,

            "A funeral procession shall be accompanied by adequate escort vehicles for traffic control purposes as determined by the chief of police."

            In addition, by question (8), you have asked:

            "If the answer to the preceding question is in the affirmative, what are those limits?"

             [[Orig. Op. Page 10]]

            There is no stated statutory limitation on a police chief's discretion under the subject statute.  As in the case of any discretionary action by a public official, however, a police chief's action in determining the number of escort vehicles which are to accompany a particular funeral procession may not be arbitrary or capricious.  A decision is "arbitrary or capricious" if it is wilful and unreasoning and in disregard of the facts and circumstances.  See,e.g., Skagit Co. v. Department of Ecology, 93 Wn.2d 742, 613 P.2d 115 (1980).

This completes our consideration of your questions.  We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

KEVIN M. RYAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, in this connection, our answer to question (3) below.

2/We will consider the further exemption, in RCW 46.61.050(1), for ". . . the driver of an authorized emergency vehicle . .  ." in response to your fourth question.

3/And see also, RCW 46.61.035 which actually sets forth the scope of the exception or exemption.

4/See, chapter 204-36 WAC by which the state commission on equipment, under authority of RCW 46.37.005 and 46.37.194 has established a permit system for the registration of particular vehicles as "authorized emergency vehicles."

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