AGLO 1981 No. 26 - Sep 15 1981
LEGISLATURE ‑- ADMINISTRATIVE LAW ‑- LAW AGAINST DISCRIMINATION ‑- EFFECTIVE DATE OF CHAPTER 259, LAWS OF 1981
(1) The effective date of §§ 2, 3 and 4 of chapter 259, Laws of 1981, relating to the appointment of administrative law judges to hear complaints filed pursuant to the state law against discrimination (chapter 49.60 RCW) is July 1, 1982.
(2) The legal authority to appoint such administrative law judges for the Washington State Human Rights Commission is vested in the chief administrative law judge who is appointed by the Governor in accordance with § 12(1), chapter 67, Laws of 1981.
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September 15, 1981
Honorable Raleigh Lewis
Human Rights Commission
402 Evergreen Plaza Building
Olympia, Washington 98504 Cite as: AGLO 1981 No. 26
By letter previously acknowledged you requested our opinion on several questions which we paraphrase as follows:
(1) What is the effective date of §§ 2, 3 and 4 of chapter 259, Laws of 1981 relating to the appointment of administrative law judges to hear complaints filed pursuant to the state law against discrimination, chapter 49.60 RCW?
(2) In the event that §§ 2, 3 and 4 of chapter 259, Laws of 1981, supra, take effect before July 1, 1982, who has the power to appoint such administrative law judges between now and then?
(3) Thereafter, who is empowered to appoint such administrative law judges and to whom [[Orig. Op. Page 2]] should a request for such an appointment, by the chairperson of the Washington State Human Rights Commission, be made when § 2, chapter 259, Laws of 1981 is in effect?
We respond to your questions in the manner set forth in our analysis.
Your inquiry basically involves the interrelationship between two acts passed by the recent, 1981, legislative session. They are, respectively, chapters 67 and 259, Laws of 1981.
By the first of these two enactments, the legislature created an Office of Administrative Hearings. See, § 1 of the act which provides:
"A state office of administrative hearings is hereby created. The office shall be independent of state administrative agencies and shall be responsible for impartial administration of administrative hearings in accordance with the legislative intent expressed by this chapter. Hearings shall be conducted with the greatest degree of informality consistent with fairness and the nature of the proceeding. The office shall be under the direction of a chief administrative law judge, appointed by the governor with the advice and consent of the senate, for a term of five years. The person appointed is required, as a condition of appointment, to be admitted to practice law in the state of Washington, and may be removed for cause."
And see also, § 12(1) which reads:
"The governor shall appoint a chief administrative law judge to take office no later than the thirtieth day after the effective date of this section. In the interim period between appointment and July 1, 1982, the chief administrative law judge shall specifically plan and administer as efficiently as possible the initial implementation of this chapter and of RCW 34.04.020 and 34.04.022 as now or hereafter amended, and shall develop and submit a plan and budget for financing the office after July 1, 1982."
[[Orig. Op. Page 3]]
Then, in turn, the chief administrative law judge is directed by § 3(1) to ". . . appoint administrative law judges to fulfill the duties prescribed in this chapter. . . ." And, under § 9 of the act,
"(1) All state employees who have exclusively or principally conducted or presided over hearings for state agencies prior to July 1, 1982, shall be transferred to the office.
"(2) All state employees who have exclusively or principally served as support staff for those employees transferred under subsection (1) of this section shall be transferred to the office.
". . ."
The second of the two 1981 enactments to which your request refers, chapter 259,supra, amends various provisions of the state law against discrimination, as codified in chapter 49.60 RCW. Specifically, insofar as your questions are concerned, § 2 amends RCW 49.60.250 to read, in material part, as follows:
"In case of failure to reach an agreement for the elimination of such unfair practice, and upon the entry of findings to that effect, the entire file, including the complaint and any and all findings made, shall be certified to the chairman of the board. The chairman of the board shall thereupon ((
appoint a hearing tribunal of three persons, who shall be members of the board or a panel of hearing examiners, acting in the name of the board,))request the appointment of an administrative law judge under Title 34 RCW to hear the complaint and shall cause to be issued and served in the name of the board a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before (( such tribunal)) the administrative law judge, at a time and place to be specified in such notice.
". . ."
In addition, other amendments to RCW 49.60.250 which are contained in this same section continue this process of [[Orig. Op. Page 4]] substituting administrative law judges for the hearing tribunals which were previously provided for; and, likewise, §§ 3 and 4 of the act amend RCW 49.60.260 and 49.60.270, respectively, by merely substituting, wherever appropriate, the term "an administrative law judge" for the words "a tribunal," "hearing tribunal," and "a hearing tribunal" as the case may be.
The problem which you have raised pertains to the effective dates of these two 1981 laws. First, insofar as chapter 67, supra, is concerned, § 40 thereof provides as follows:
"Sections 12 and 37 of this act are necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect immediately. The remainder of the act shall take effect July 1, 1982."
And, in the case of chapter 259, supra, § 7 thereof says:
"Sections 2, 3, 4 and 5 of this 1981 act shall take effect upon the enactment of House Bill 101, 1981 Regular Session."1/
With that we complete the circle. House Bill 101, which is referred to in § 7, supra, is the bill which became [[Orig. Op. Page 5]] chapter 67, Laws of 1981, supra. But, as also above noted, with the exception of §§ 12 and 372/ it has a delayed effective date‑-July 1, 1982‑-although (of course) it was literally "enacted" when it was signed by the Governor on April 25, 1981.
Your first question calls upon us to unravel this seemingly incongruous, legislatively produced, puzzle by asking, in light of the foregoing:
What is the effective date of §§ 2, 3 and 4 of chapter 259, Laws of 1981 relating to the appointment of administrative law judges to hear complaints filed pursuant to chapter 49.60 RCW, the state law against discrimination?
We believe that the proper answer to this question‑-the one which a court would reach should the matter be litigated‑-is July 1, 1982.
It is true, of course, that House Bill 101 (i.e., chapter 67, supra), which is referred to in § 7 of chapter 259,supra, was technically "enacted" when it was signed by [[Orig. Op. Page 6]] the Governor on April 25, 1981.3/ In addition, it is also true that two out of its forty sections actually took effect on that same date. But clearly, those two sections are not sufficient to afford the obvious "dovetail" effect which the legislature intended should exist between its provisions and those of chapter 259,supra, insofar as the appointment of administrative law judges for purpose of conducting administrative hearings under the state law against discrimination is concerned. For, until the remaining substantive sections of chapter 67 take effect, in accordance with § 40,supra, on July 1, 1982, there simply will be no administrative law judges in existence over whom the chief administrative law judge (appointed by the Governor pursuant to § 12, supra) will have any supervisory authority. And therefore, it will not be possible for an ". . . appointment of an administrative law judge under Title 34 RCW . . ." to be made, in the manner contemplated by RCW 49.60.250, et seq., as amended, until that time.
We think, therefore, that what the legislature truly had in mind when it adopted what is now § 7, chapter 259, supra, as a Senate floor amendment to the then pending Substitute Senate Bill 37044/ was, instead, that §§ 2, 3 and 4 of that measure would only take effect upon the effective date of those provisions of House Bill 101 (now, chapter 67) whose existence, as law in effect, were obviously contemplated by SSB 3704 at that time and whose enactment would be necessary in order for those portions of that bill to become functionally operational.
This conclusion is amply supported by several well-established principles of statutory construction. First and foremost, it is in line with the following statements which appear inIn re Horse Haven Irrigation District, 11 Wn.2d 218, 226, 118 P.2d 972 (1941):
[[Orig. Op. Page 7]]
"The courts, in pursuance of the general object of giving effect to the intention of the legislature, are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof.
". . .
"It is a rule of such universal application as to need no citation of sustaining authority that no construction should be given to a statute which leads to gross injustice or absurdity."
Another, related, principle of statutory construction which also supports our answer will be found inWilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968) at pp. 947-8 as follows:
"The presumption is that the lawmaker has a definite purpose in every enactment and has adapted and formulated the subsidiary provisions in harmony with that purpose; that these are needful to accomplish it; and that, if that is the intended effect, they will, at least, conduce to effectuate it. That purpose is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms. This intention affords the key to the sense and scope of minor provisions. From this assumption proceeds the general rule that the cardinal purpose or intent of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious. 'A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction.' 2 Sutherland, Statutory Construction § 4704 (3d ed. Horack)."
A third rule of construction which applies here is that where two laws relate to the same subject matter they are to be read inparamateria, to the end that any apparent conflicts between their provisions are to be resolved and harmonized, if at all possible. And, as noted by the Court in State ex rel. [[Orig. Op. Page 8]] Oregon R & N Co. v. Clausen, 63 Wash. 535, 116 Pac. 7 (1911), this rule applies with particular force to statutes passed during the same session of the legislature‑-as in the instant case.
Conversely, unless one totally ignores or rejects the very existence of an ambiguity in the language of § 7, chapter 259, supra, and thereby walks, lockstep, down a narrow road marked "literal language" there is no principle of statutory interpretation which is in any way supportive of a contrary answer‑-that the legislature intended §§ 2, 3 and 4 of chapter 259, supra, should take effect as of the date (again April 25, 1981) when the Governor signed chapter 67, supra, into law. In fact, notably, chapter 259 itself was not even signed by the Governor until nearly three weeks later‑-on May 18, 1981.
The foregoing disposition of your first question renders consideration of your second question unnecessary. Because, in our opinion, §§ 2, 3 and 4 of chapter 259, Laws of 1981, supra, do not become effective until July 1, 1982‑-when the major segments of chapter 67, supra, take effect‑-there is no reason to be concerned with the procedure for appointing administrative law judges between now and then.
Your third and final question, repeated for ease of reference asks:
Thereafter, who is empowered to appoint such administrative law judges and to whom should a request for such an appointment, by the chairperson of the Washington State Human Rights Commission, be made when § 2, chapter 259, Laws of 1981 is in effect?
The answer to this question, in our opinion, is that the power of appointment is vested in the chief administrative law judge who is appointed by the Governor in accordance with § 12(1) of chapter 67, supra. It is he who, under the terms of chapter 67, has supervisory authority over the cadre of administrative law judges who will be available to perform the functions contemplated by that act when it becomes fully operative. And therefore, it is he to whom the chairman of the state Human Rights Commission should properly turn, for assistance, when the time comes.
[[Orig. Op. Page 9]]
This completes our consideration of your questions. We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Section 5 of chapter 259, which is not pertinent to your present inquiry but is also referred to in this "effective date" section of the act, adds the following new section to chapter 49.60 RCW.
"Any city classified as a first class city under RCW 35.01.010 with over one hundred twenty five thousand population may enact ordinances consistent with this chapter to provide administrative remedies for any form of discrimination prescribed by this chapter: PROVIDED, That the imposition of such administrative remedies shall be subject to judicial review."
2/Section 12, as earlier indicated, provides only for the appointment of the chief administrative law judge but not for the other judges, and § 37 merely makes an appropriation, as follows:
"To carry out this act, there is appropriated to the office of the chief administrative law judge from the general fund for the fiscal year from July 1, 1981, through June 30, 1982, the sum of one hundred twenty thousand dollars, or so much thereof as may be necessary."
3/See, Wash. Const., Art. II, § 1 and amendments thereto, and Art. III, § 12.
4/See, Senate Journal (1981), at p.___.