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Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1971 No. 48 - Mar 22 1971
Attorney General Slade Gorton

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                                                                  March 22, 1971
Legislative Budget Committee
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 48 (not official)
Attention:  Mr. Gerald L. Sorte, Legislative Auditor
            This is written in response to your recent request for our opinion with regard to the constitutionality of a proposal to place the following section in the 1971-73 omnibus appropriations bill:
            "No funds from any appropriation contained in this act, other than those appropriations for legislative and judicial agencies, shall be used for the payment of out of state travel costs or per diem unless the Director of the Office of Program Planning and Fiscal Management has given written approval for such payment."
            In our opinion, this provision, if enacted in its present form, would violate the universally accepted concept, based in this state upon the provisions of Article II, § 1 of our state constitution, that a delegation of a legislative power to an administrative agency is unconstitutional unless accompanied by sufficient standards and guide lines.
            The basic test to be applied in a case such as this has been spelled out by our court on many occasions ‑ most recently, in Markham Advertising Co. v. State, 73 Wn.2d 405, 429, 439 P.2d 248 (1968), as follows:
            ". . . A legislative delegation is tested by the standards we set forth in Miller v. Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963), at 388, 389:
            "The rule is succinctly stated in Keeting v. Public Util. Dist. No. 1, 49 Wn.2d 761, 767, 306 P.2d 762 (1957):
            "'It is unconstitutional for the legislature to  [[Orig. Op. Page 2]] abdicate or transfer to others its legislative function.  It is not unconstitutional for the legislature to delegate administrative power.  In so doing, the legislature must define (a) what is to be done, (b) the instrumentality which is to accomplish it, and (c) the scope of the instrumentality's authority in so doing, by prescribing reasonable administrative standards.'"
            Other recent cases in which this same concept has been expressed by the court, and then applied to determine the sufficiency or insufficiency of legislatively prescribed standards in a given situation, include:  Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 418 P.2d 443 (1966); State ex rel. Pruzan v. Redman, 60 Wn.2d 521, 374 P.2d 1002 (1962); Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959); Senior Cit. L. v. Dept. of Soc. Sec., 38 Wn.2d 142, 228 P.2d 478 (1951); United States Steel Corp. v. State, 65 Wn.2d 385, 397 P.2d 440 (1964); and Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127 (1960).
            In all of these cases save only the last two (in order of citation) the court found itself able to uphold the particular legislative delegation in question on the basis that it contained a sufficient delineation of standards and guide lines to meet the foregoing test; however, in the United States Steel Corp. case and in Peterson v. Hagan, supra, the court was presented with situations where the challenged legislation contained no real standards or guide lines at all ‑ an infirmity which was commented upon by the court in the latter of these two cases as follows:
            ". . . The vice of the challenged section is that it fails to distinguish between intrinsic legislative power and administrative rule‑making power to execute a declared legislative purpose.  Administrative rule‑making power must be circumscribed by definite standards.  Here there is an undisguised attempt at delegation of pure legislative power.  The constitution forbids."  (56 Wn.2d at 62.)
            This, in our judgment, likewise aptly describes the proposed section of the omnibus appropriations bill which  [[Orig. Op. Page 3]] you have asked us to review.  Unquestionably, under Article VIII, § 4 (Amendment 11) of our state constitution, the function of appropriating moneys for the support of state agencies (i.e., authorizing the expenditure of state funds for the operation of such agencies) is a legislative and not an administrative function.  And here, although this proposal does define (a) what is to be done ‑ i.e., pass upon applications for approval of out of state travel costs or per diem ‑ and (b) by whom ‑ the director of the office of program planning and fiscal management ‑ the proposal is totally silent in terms of spelling out any standards or guide lines by which the director is to be guided in determining whether or not to approve any such applications.
            Because of this, we must regard the proposal in question as being unconstitutional.  If you would care to have us assist you in redrafting it so as to overcome this constitutional infirmity, we would be happy to do so.
Very truly yours,
Philip H. Austin
Deputy Attorney General